Gornell Law School Library
Commentaries on the law of criminal proc
 

 

LIST OF LAW BOOKS.

 

CRANCH (William).— Reports of Cases in the United States
Circuit Court of the Pitaisies of Columbia, from 1801 to 1841. 6 vols,
8vo. << m ee ie ee A a aoe eS

CURTIS (George T.).— Precedents in Equity. aes

to Story’s Equity Pleading. Third Edition. 8vo.

Treatise on the Law of Patents for Useful Inventions in
* the United States of America, and Remedies for their Infringement.
Third edition, with many additions. 8vo. (Zn Press.)

CURTIS (Judge B. R.).— United States Circuit Court aia
First Circuit, 1851-56. 2 vols. 8vo. .

United States Supreme Court Decisions, comprising the
58 volumes of cases reported by Dallas, Cranch, Wheaton, Peters, and
Howard. With Notes and a Digest. 22 vols. 8vo. ee

Digest of the Decisions of the Supreme Court of the
United States from the Origin of the Court to the close of the December
term, 1854. 8vo.. 2. 6 6 6 ee ee ew ee eh

CUSHING (Luther S.).— Reports of Cases Argued and Deter-
termined in the Supreme Judicial Court of Massachusetts. 12 vols. 8vo.
Per vole: jo ceo te ob cc see ne a BE Hy eee ae ee

An Introduction to the Study of the Roman Law. 12mo.
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Law and Practice of Legislative Assemblies in the
United States of America. Third edition. 8vo. .

DANIELL (Edmund R.).— Pleading and Practice of the High
Court of Chancery. Third American Edition. To which are added
several entirely new Chapters, and copious Notes by Hon. J. C. Perkins,
adapting the work to American Practice in Chancery. 8 vols. 8vo. .

DAVIS (Daniel).— A Practical Treatise upon the Authority and
Duty of Justices of the Peace in Criminal Prosecutions. Third edition,
revised and greatly enlarged. Edited by F. F. Heard. ~ 8vo.

DOMAT (Jean). — The Civil Law in its Natural Order, together
with the Public Law. Translated into English by William Strahan ;
with Remarks on some Differences between the Civil Law and the Law
of England; printed entire from the last London Edition. Edited ia the
Hon. Luther S. Cushing. Fourth edition. 2 vols. 8vo. :

DRAKE (Charles D.).— Treatise on the Law of Suits ide Attach-
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ENGLISH REPORTS (DIGEST).—A Digest of the Deci-
sions of the Courts of England, contained in the English Law and Equity
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HEE 00

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GALLISON (John).— Reports of Cases Argued and determined
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to 1815. Second edition, with additional Notes and References. 2 vols.
BVO” ee ed ea Sp a Bl a FI ew ee ee ew ee: oe 00

GRAY (Horace, Jr.).— Reports of Cases Argued and Determined
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VO, & © ee aoe eo ER we ee we we we oe we ee & OBO

GREENLEAF (Simon).— Treatise on the Law of Evidence.
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LIST OF LAW BOOKS. 5

 

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Pickering’s 39 24. 5, 49 ie & 2 oe ee & Se 282200

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Cushing’s * 12 5 fe wR ww RS Boe «ws oe. & BE00

Gray’s 95 14, 95 8 hog eee ot 00

Allen’s +i 8 ,, a " . 44.00

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6 LITTLE, BROWN, AND COMPANY'S

 

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Commentaries on the Law of Bills of Exchange, For-
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Commentaries on Equity Jurisprudence, as administered
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LIST OF LAW BOOKS.

 

STORY (Joseph). — Commentaries on Equity Pleadings and the
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England and America. Seventh edition, revised and enlarged by Hon.
I. F. Redfield. 8vo.. . . . +...

Commentaries on the Law of Partnership as a Branch of
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Illustrations from the Commercial Law of the Nations of Continental
Europe. Fifth edition, revised and enlarged, by E. H. Bennett, Esq.
SVOs < “Sh te SBS Me ee ee ee ee mee ee

STORY (William W.).—A Treatise on the Law of Contracts.

Fourth edition, revised and enlarged. 2 vols. 8vo. .

A Treatise on the Law of Sales of Personal Property,

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SUMNER (Charles). — Reports of Cases Argued and Determined
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UNITED STATES DIGEST TO 1862.— Digest of the Deci-
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COMMENTARIES

ON THE LAW OF

CRIMINAL PROCEDURE,

OR

PLEADING, EVIDENCE, AND PRACTICE

IN CRIMINAL CASES.

By JOEL PRENTISS BISHOP,

AUTHOR OF ‘‘ COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE,’
AND “COMMENTARIES ON THE ORIMINAL LAW.”

VOL. I.

BOSTON:
LITTLE, BROWN, AND COMPANY.
1866.
~ - 7
Entered according to Act of Congress, in the year 1866, by
JOEL PRENTISS BISHOP,
in the Clerk’s Office of the District Court of the District of Massachusetts.

University Press: Weicu, Bicztow, & Co.,
CAMBRIDGE.
PREFACE.

Tae volumes here submitted bring to a close la-
bors which have occupied me during many years.
In the fall of 1852, my first work, that on Marriage
and Divorce, was published. I was soon after in-
duced, contrary to my original intention, to enter
the field of authorship in a larger way, and my
work on the Criminal Law, followed by this sup-
plemental one on Criminal Procedure, is the visi-
ble fruit thus far. In the preface to the work on
Marriage and Divorce, I said: —

“What is the appropriate sphere of a treatise, or commentary
upon the law, I cannot better express than in the words of Lord
Stowell, who, while furnishing me thus a guide for my way, stands
also as my apologist and defender against any who may deem the
way presumptuous. ‘With regard to decided cases, he said, in
delivering one of his most admired judgments, ‘I must observe,
generally, that very few are to be found in any administration of
law in any country, upon acknowledged and settled rules. Such
rules are not controverted by litigation, they are therefore not evi-
denced by direct decisions; they are found in the maxims and rules
of books of text law. It would be difficult, for instance, to find an
English case in which it was directly decided that the heir takes
the real, and the executor the personal, estate; yet, though nothing
can be more certain, it is only incidentally, and odzter, that such a
matter can force itself upon any recorded observation of a court;
equally difficult would it be to find a litigated case in the canon law
iv PREFACE.

establishing the doctrine that a contract per verba de presenti is a
present marriage, though none is more deeply radicated in that law.’
What success has attended my effort to draw from the decided cases
the rules to be followed in future causes I cannot assure the reader ;
but herein, be the success greater or less, lies a chief part of what-
ever merit is claimed for the following pages. If bare statements of
points decided could make up an elementary treatise of the law, little
need would there have been for any thing more than a digest of the
American decisions, to be used in connection with Mr. Shelford’s, of
the English. And if treatises of the law were only digests, few trea-
tises of the olden time could have come down to us; for the old
would be superseded by the new. And though my work may fail to
be regarded in any other light than merely as a digest, the failure
will be owing to no want of effort on my part; it will be a complete
failure of what I had undertaken, as complete as if the words them-
selves were forever blotted from existence.”

The views thus expressed have been my guide,
also, in the preparation of these other two legal
works. And I have found that, with the exception
which attended all law books during the late civil
war in our country, those views have met with the
approval of the profession, manifested by a larger
and larger purchase of my books, increasing regu-
larly and constantly each successive year. It is
thus that ever since our common law was in exist-
ence, every book which elucidated with any re-
spectable degree of accuracy its principles, has con-
tinually increased in reputation, and in some in-
stances even in circulation, down to the present
moment; while all books which stated only points,
however well, have been doomed for early death.
And the reason is, that books of the former class

give to’ lawyers the greatest amount of practical
PREFACE. Vv

help possible, while the latter furnish them the
least. The former live because they are found by
the test of trial to be practical books; the latter
die, because by the same test they are found not
to be practical. I have explained this in the last
chapter of this first volume.

These two volumes on Criminal Procedure are
not so closely connected with the work on the
Criminal Law as to render their separate use incon-
venient. Yet in dividing the larger subject into
Law and Procedure, for the two works, I took care
that there should be as little repetition as possible
in the one, of what was treated of in the other.
And as such a division is necessarily artificial, to a
considerable extent, the result is that readers may
sometimes be in doubt into which work to look
for a particular matter. For this reason, I have in
a few instances veferred to the work on the Crim-
inal Law, in the Alphabetical Index to these vol-
umes.

It is singular that, while books on the civil de-
partments of our law have almost always distin-
guished between law and procedure, these are the
first works which, whether published in England or
the United States, have done so to any consider-
able extent in the criminal department. The titles
of some of the preceding works indicate the dis-
tinction, but their contents do not. It is believed

that this division will be found, in practice, very
a*
vi PREFAOE.

convenient. No reason appears why it is not re-
quired as much in the criminal department as in
the civil. And in the present instance it has ena-
bled me, within reasonable space, to extend the dis-
cussion more completely over the field, and embrace
a more nearly perfect list of topics, than has been
attempted by any preceding author.

The references in this work to the work on the
Criminal Law are all to the third edition, in which
the matter was rearranged, and the numbers of the
sections were changed.

With thanks to the profession for their favors and
indulgence hitherto, this work is respectfully sub-
mitted to their candid criticism, and to practical

use,
J. P. B.

Boston, Sept. 1, 1866.
CONTENTS OF VOLUME I.

The references are to the sections.

BOOK TI.
PRELIMINARY VIEWS.

CHAPTER I.'—Jvuprcia, Procepurz in GEneRAt,
CHAPTER I.—Criumwat Procepurs,

CHAPTER III.— Ovriive of tHe PRoOcEEDINGS IN
A CriminaL Cause,

BOOK II.
PLEADING AS RESPECTS THE INDICTMENT.

CHAPTER IV.—Inrropucrory View or Crim-
NAL PLEADING,

CHAPTER V.—Txe County or District in
WHICH THE INDICTMENT IS TO BE FOUND,

CHAPTER VI.— How tur PLace oF THE OFFENCE
IS TO BE SET OUT IN THE INDICTMENT, AND HOW
PROVED,

CHAPTER VII.—Cuance or VENuE, .

CHAPTER VIII.—Tue Naming anp Descrisine
OF THE DEFENDANT; AND, GENERALLY, OF THE
Name in Crimimnat PLeapIne, .

CHAPTER IX.—Tue Inporsement or THE .PROs-
ECUTOR’s NAME ON THE INDICTMENT, A

CHAPTER X.—Inporsements By THE GRAND
JURORS AND THE PROSECUTING OFFICER, .

1-9
10-81

32-39

40~62

63-82

83-107

108-116

117-130

181-185

136-144
viil CONTENTS.

CHAPTER XI.— Tue Inrropuctory Part OF THE

INDICTMENT, AND THE CAPTION, ‘ ‘ .
CHAPTER XII.—Tue Conciupine Part oF THE
INDICTMENT, 3 : ‘ é é 2 p

CHAPTER XIII.— Tue LaneuaGe, AND THE Pvu-
RITY AND PRECISION THEREOF, REQUISITE IN
THE INDICTMENT, . 7 : . r -

CHAPTER XIV.—Tue ARRANGING ofr THE Mat-
TER OF THE INDICTMENT IN Distinct CouUNTS, .

CHAPTER XV.— Doupuicity, JoInDER oF OrF-
FENCES, AND COMPELLING THE PROSECUTOR TO
ELECT ON WHAT CHARGE TO PROCEED, . .

188. Introduction.
189-196. Duplicity.
197-204. Joinder of Offences.
205-218. Compelling the Prosecutor to elect.

CHAPTER XVI.—JormnpER or OFFENDERS, . ‘
CHAPTER XVII.—Surpiusace anp VARIANCE, .

CHAPTER XVIII.—Tue AveRMENtTs or TIME AND
or PLACE AS CONNECTED WITH THE TIME, 3

CHAPTER XIX.—Tue SusstantTIAL AVERMENTS
or THE INDICTMENT, . 5 ° : . ‘

261-266. Introduction, and some Formal Things considered.
267-276. Objects to be secured in setting out the Offence.
277-287. Information, to enable the Prisoner to defend.
288-292. To enable the Court to order Course of the Trial.
298-295. To enable the Court to determine the Sentence.
296. To enable the Prisoner to plead Former Jeopardy. ”

145-156

157-162

163-178

179-187

188-213

214-227
228-236

237-260

261-340

297-303. Difference of Allegation where Thing known and unknown.

804-807. Difference where Matter direct and where incidental.

308-3812. Different Forms of setting out Written or Spoken Words.

318. How, when the Words were in a Foreign Language.
814-382. Ownership, Value, Person Injured, and the like.
833-3840. Disjunctive and Conjunctive Allegations.

CHAPTER XX.—Invictments upon Srarutss,
841. Introduction.

341-385

342-349. How to distinguish whether on Statute or at Common Law.

850-855. Concluding part of the Statutory Indictment.
856-868. Rule of following the Words of the Statute.

369-874. Exceptions of expanding the Allegation beyond the Words.

375-885. What the Indictment must negative.
CONTENTS.
CHAPTER XXI.— Statutes or JEOFAILS AND
AMENDMENTS,

CHAPTER XXII.— Tue ConstiturionaLity oF
Statutes Re@uLatine THE INDICTMENT, .

CHAPTER XXIII.—A Generat Form oF THE
INDICTMENT, WITH A SuMMARY OF DocrTRINEs,

‘

BOOK III.

ix

886-393

3894-407

408-411

THE PLEADINGS SUBSEQUENT TO THE INDICTMENT.

CHAPTER XXIV.—Taue Severat PLeas anp
THEIR Import, 3 P ‘i : 7

CHAPTER XXV.— Tue Doctrine or WAIVER OF
Rieuts, é . . . . ‘

CHAPTER XXVI.—TsE ORDER IN WHICH THE
PLEAS MUST BE PRESENTED, ‘ 5 :

CHAPTER XXVII.—Some or THe Puras Sepa-
RATELY CONSIDERED, . ‘i 4 ‘ ‘

442. Introduction.
443-455. The Motion to Quash the Indictment.
456-462. Demurrer.

463. Plea of Misnomer.
464-468. Pleas of Guilty and Not Guilty.
469-472. Plea of Nolo Contendere.

CHAPTER XXVIII. — Tue Forms or THE Pigs,
AND THE MerHop or PLEADING THEM,

BOOK IV.
THE EVIDENCE.

CHAPTER XXIX.—PRrReEsvuMPTIONS AND THE Bur-
DEN OF PrRoor, . ; p ‘ -

483, 484. Introduction.
485-496. The Doctrine of Presumptions in Criminal Causes.

412-421

422-428

429-441

442-472

473-482

483-503
x CONTENTS.

496-498. Burden of Proof in Criminal Causes.

499-501. Distinction between Circumstantial and Direct Evidence.

502, 503. Evidence in Civil and Criminal Causes compared.
CHAPTER XXX.— Tue WITNESSES PRESENT IN

Court, 504-519
CHAPTER XXXI.— Tus Testimony or Persons

ABSENT OR DECEASED, . ‘ ; 5 . 520-527
CHAPTER XXXII. — DocumEentTaRY AND OTHER

LIKE EvIDENCE, ‘ 3 si a : . 528, 529

BOOK V.

THE PLEADINGS AND EVIDENCE IN SOME SPECIFIC ISSUES.

CHAPTER XXXIII.—Insaniry, . : i . 5380-544
CHAPTER XXXIV.— Tuer AccressoRY AND THE
LIKE, 545-551
CHAPTER XXXV.— Attempt, . . : . 552-570
CHAPTER XXXVI.— Tse Pra or Former
JEOPARDY, . ‘ j : 5 é . 571-587

571-573. Introduction.

574, 575. The Plea of Autrefois Convict.
576-583. The Plea of Autrefois Acquit.

584-587. How when neither of these is available.

CHAPTER XXXVII.— Tue Priea or Parpon, 588-603

BOOK VI.

PRACTICE.

CHAPTER XXXVIII.— Tue Proceepine sy In-

FORMATION, . 3 3 ‘ F j ‘i - 604-611
CHAPTER XXXIX.—Tue Arrest anp Hoiping
FOR EXAMINATION OR TRIAL, . ‘i ‘ - 612-681

612. Introduction.

618-620. Arrest, how made, and Rights of the Parties.
CONTENTS.

621-629. Without Warrant, by Unofficial Persons.
630-648, Same, by the Officers of the Law.
644-650. The Arrest under Warrant.

661-664. Breaking of Doors and the like.

665, 666. Under Search Warrants.

667-669. Seizing of Goods in other Arrests.
670-675. Disposal of Arrested Person and Goods.
676-681. Fugitives from Justice.

CHAPTER XL.—Tue Presence oF THE PRis-

ONER IN Court, . . ‘ : : - 682-692

CHAPTER XLI.— Sureties ror tHE DEFENDANT’S

APPEARANCE, ‘ , ‘ . é ‘ - 693-710

CHAPTER XLII.— Tuer Preiminary Examina-

TION AND Houtpine THE DEFENDANT TO AN-

SWER TO THE CRIMINAL CHARGE, . _ - 711-719

CHAPTER XLITI.— Tue Granpn Jury anp Its

Finpine, . 5 : : ; 3 3 - 720-754

720. Introduction.
721-730. Constitution and Organization of the Grand Jury.
781-734. The Presentment.
735-739. Procedure of the Grand Jury.
740-754. How to take advantage of its Errors.

CHAPTER XLIV.— Tue Perit Jury anp ITs

Finpine, ‘ . ‘i , ‘ 4 . 155-843

755, 766. Introduction.

757-760. The Right of Jury Trial.

761-768. Number and Constitution of the Jury.
764-791. Qualifications of the Jurors.

792-806. The Impanelling of the Jury.

807-810. Subsequent Objections to Jurors or the Panel.
811-817. Respective Provinces of Court and Jury.

818, 819. Weight of Evidence necessary to Convict.
820-848. Deliberations of the Jury and their Verdict.

CHAPTER XLV.—NeEw Tri41Ls, . . Fl - 844-849
CHAPTER XLVI.— Tue Arrest oF JUDGMENT,
CHAPTER XLVII.— Tue Sentence, . . . 856-880
CHAPTER XLVIII.—Tse Exercurion OF THE

850-855

SENTENCE, . 3 4 ‘ ‘ ‘ ‘ . 881-888

CHAPTER XLIX.— Tue Escare or PRISONERS

FRom CusTopy, . - i ‘ c ‘ . 889-892
xii CONTENTS.
CHAPTER L.— Convictions BEFORE INFERIOR
MaGIsTRATES, . . : c a : . 893-902
CHAPTER LI.—Txse Recorp, . : : - 908-932
908, 904. Introduction.
905-912. Keeping and Making up of the Record.
918-982. Form of the Record.
CHAPTER LII.— Tux Writ or Error, . . 9383-948
CHAPTER LIII.— Tae Writ or Certioranri, 949-958
CHAPTER LIV.—Orszer Wrirs anp Proczsses, 954-957
CHAPTER LYV.—Jornt anp SeParaTE TRIALS, 958-983
958. Introduction.
959-965. Severance of Defendants in their Trials.
966-978. The Joint Trial.
979. The Trial when the Charge is Several.
980-983. Where there are separate Indictments for like Offences.
CHAPTER LVI.—Tae Court, . : . - 984-987

CHAPTER LVII. — Tue CounsEL FoR THE PROSE-
CUTION AND FOR THE DEFENCE, . 3 - 988-1018

988. Introduction.

989-1000. The Duties of a Prosecuting Officer.
1001-1005. The Duties of Counsel for the Defence.
1006-1018. Appointment and Compensation of Counsel.

CHAPTER LVIII. — Remarnine INcIpEnts oF
tHE TRIAL, . : ‘ ‘ 3 ‘ - 1019-1023

CHAPTER LIX.— Suaeestions To PRACTITION-
ERS AND GENTLEMEN PREPARING TO PRACTICE
IN THE CRIMINAL Courts, . , 3 - 1024-1095

1024, 1025. Introduction.
1026-1067. What it is which the Professional Man should know.
1068-1095. The Books to be employed.
BOOK I.

PRELIMINARY VIEWS.

CHAPTER I.

JUDICIAL PROCEDURE IN GENERAL.

§ 1. BeErore we enter upon the direct consideration of the
specific subject of Criminal Procedure, let us look, in a gen-
eral way, at the more enlarged matter of the procedure in
all causes, civil and criminal. The term Procedure is not a
technical one in the law; and it is used upon the title-page
of these volumes as embracing the combined meaning of the
three technical terms, Pleading, Evidence, and Practice.

§ 2. Pleading, in law phrase, signifies, not the address of
an advocate to the judge or jury, or the act of making the
address, — a sense in which it is sometimes popularly em-
ployed, — but the science and course of allegation, whereby a
party in court presents in writing to the tribunal his demand,
or defence against the demand of the other party, to be made
matter of record therein; and the word pleadings, in the plu-
ral form, signifies the allegations themselves. Sometimes
this plural form of the word is restricted to denote, in the
language of Mr. Gould, “ only those allegations or alterca-
tions which are subsequent to the count or declaration.” The
word Practice, as used in the law, means those legal rules
which direct the course of proceeding to bring parties into
court, and the course of the court after they are brought in.
The term Evidence sometimes denotes the testimony adduced
in a particular cause ; but it also signifies those rules of law,

1 Gould Pl. 13.
VOL. I. 1 [1]
§4 PRELIMINARY VIEWS. [BOOK I.

whereby we determine what testimony is to be admitted and
what rejected in each case, and what is the weight to be given
to the testimony admitted. The latter of these two mean-
ings is that in which it is employed on the title-page of these
volumes.

§ 3. The reader has observed, that the words Pleading,
Practice, Evidence, as thus defined, considerably overlie one
another in meaning. Indeed the word Practice, in its fullest
sense, comprehends almost everything embraced by the three
combined. It is sometimes used in this fullest sense, but
generally we restrict its meaning within narrower limits.
Yet it is difficult to draw around it any exact lines. In the
arrangement of the matter of the present volumes, we shall
not attempt to keep any one of these words within precise
bounds ; the purpose being rather to make the work con-
venient of consultation, and practically adapted to profes-
sional wants.

§ 4. Returning to the word Procedure, as embracing the
combined sense of the other three words, let us see if we can
place upon these pages, in brief outline, an image of what is
meant by procedure in a court of justice, so distinct as to
enable readers uninformed in legal things to comprehend it.
Suppose a man deems another to owe. him a sum of money,
which the latter refuses to pay. If the former has determined
to make his claim for payment effectual, he sets himself to
accomplish two things ; the one, to place on the record of the
country the fact of the money being due, and wrongfully with-
held ; the other, to put in motion the power of the country,
to compel the wrongdoer to make the payment. Now, the
record of the country, wherein this sort of remembrance is set
down and preserved, is made up and kept by the clerk of the
proper court, under the direction of the judge. But as a
person other than the complainant is interested in this record,
the judge will not direct the clerk to make it up, until this
other person, called in legal phrase the defendant in the suit,
has notice of what is going on, and the opportunity given him
to come before the judge — or, in the more exact language of
the law, come into court —and object. If, after notice, the

[2]
CHAP. I.] JUDICIAL PROCEDURE IN GENERAL. §6

defendant chooses not to come in, the judge directs a record
to be made in accordance with the claim of the plaintiff, as
in legal phrase the person is called who asks for-the record.
If the defendant does come in and oppose, then the two par-
ties, after having respectively stated in writing, and handed
to the clerk, what they severally claim to be the facts in the
case, produce their testimony ; when the judge, either ascer-
taining himself by an examination of the testimony what the
facts are, or submitting the testimony to a jury who render a
verdict finding the facts, pronounces the decision of the law
upon the whole matter, and causes the clerk to enter up such
a record as will properly perpetuate this finding and decision.

§ 5. But the record would be of little avail to a party, if
nothing were done, after it was made up, to enforce what it
declares to be the right. Therefore the judge directs the
clerk (what indeed, in most cases, practically follows under a
general order, without any specific direction in the particular
instance) to give to the prevailing party a writing, — known
sometimes under the technical name of an execution, and
sometimes under some other technical name, the language of
the law not being quite uniform in all the States, and there
being in some localities a difference in the language as ap-
plied to different suits, — commanding the sheriff or other
proper officer to whom it is directed, to perform out of the
goods or estate of the losing party in the suit, for the benefit
of the other, or to compel such losing party so to perform,
what the record declares the prevailing’ party has the right
to require as his due. .And the officer, in making service of
the precept (the word precept being a general term covering
all writings of this kind), carries with him, not only his own
physical force to compel performance, but the right also to
call out, should need require, the whole civil and military
power of the country.

§ 6. We have thus seen the result to which the procedure
conducts the litigants, and the tribunal. It is, that the pre-
vailing party has a record made in his favor, both perpetuat-
ing the right, and authorizing him to put in motion so much
of the physical force of the country as may be requisite to com-

[3]
§7 PRELIMINARY VIEWS. [BOOK I.

pel the losing party to perform the right. The judge, in de-
termining what the right is, was guided by the law of the
land. But the law of the land was equally his guide in re-
spect to the procedure itself. This is the general proposition ;
still, in the procedure, or steps preliminary to pronouncing
the final judgment or decree, there must sometimes occur
questions which could not be settled by exact rule, and must
therefore be left to the individual discretion of the judge.
This discretion is to be regulated as much as possible by rule ;
and, in regard to very many things connected with the pro-
cedure, discretion and rule blend in constantly varying pro-
portions. It is the duty of the writer who treats of the law
of procedure, to distinguish between discretion and rule, and
point out what belongs to the one, and what to the other ;
yet, because of the blending just mentioned, and because of
the indistinct lines which are sometimes drawn by the judges
themselves, this matter often becomes one of great embarrass-
ment. In the present volumes an effort will be made to do
this duty ; but the writer cannot promise that the result will
be, in every instance, satisfactory to the reader. Yeta further
word of explanation will render this point more distinct.

§ 7. It is well known, that a large proportion of the law
of the land lies in the reason of man, as evidenced by usage,
and recorded in books of reports and treatises of learned per-
sons, in distinction from what we term statute law. And
the procedure of our courts is peculiarly a thing of usage ;
not being regulated to any great extent by statutory direc-
tion. Yet the established usage is binding on the tribunals,
in questions of procedure, as well as in others. At the same
time, necessity — which is a master of iron rule, that bears
down even written constitutions as well as statutory law,
and of course all unwritten law!— operates widely in
this matter of legal procedure. What necessity says must
lie in the breast of the particular judge presiding, — that is,
must be decided on his individual discretion, not being re-
duced to exact rule, cannot be deemed matter of strict
law. There is also a mere quasi necessity, where the neces-

1 See Crim. Law, I. § 441 - 449,

[4]
CHAP. 1] JUDICIAL PROCEDURE IN GENERAL. §9

sity is not absolute, and this quasi necessity operates a great
way. Moreover, the consideration of convenience comes in ;
and, though falling short even of this quasi necessity, still
blends its force with it, contributing to direct oftentimes the
form and course of the proceeding. It should be added, that
there are some of our States in which the procedure has
been very much regulated by statutes. Yet the statutory
regulation does not always repeal the common-law rule, but
it oftener leaves to the practitioner or the judge the privilege
of following the one or the other as he may elect. And
where this choice is not permitted, still it remains important,
on many accounts, to know what the common-law rule is.
Especially is such knowledge essential, in many circumstan-
ces, as a help to the interpretation of the statutes.

§ 8. The consequence of these things is, that in the ab-
sence of any statutory direction the collective judges of every
judicial tribunal may, to a considerable extent, regulate its
practice by what are termed general rules of court. This is
a power which has been acknowledged in all ages of the com-
mon law, but precisely to what extent it can properly be ex-
ercised is, perhaps, matter of some doubt. Each individual
judge is bound by the rules thus established, provided they
are such as the court was legally competent to make, in the
same manner as he is by an act of the legislature ; that is, he
cannot disregard the rule, and exercise a discretion contrary
to it in a particular case. To the like extent are the collec-
tive judges also bound while the rule stands, though they
can alter or abolish itat pleasure. Statutes, both in England
and in this country, have likewise conferred on the judges
more or less power of regulating the practice of their respec-
tive tribunals by general rules.}

§ 9. Pertaining to this question of procedure, therefore, we
have, on the one hand, the established legal doctrine immov-
able by any power of the judges; and, on the other hand,
what lies in the mere individual discretion of the judge pre-
siding in the particular case. These are at the two outer

1 And see Thompson v. Hatch,3 Pick. 1 Bishop Mar. & Div. § 80-86, where
512; Rathbone v. Rathbone, 4 Pick. 89; the matter is more fully discussed.

1* [5]
§ 9 PRELIMINARY VIEWS. [BOOK I.

bounds, and lying between them we have a mass of things
spread along in ever-varying gradation, each possessing a
different admixture in degree of the fixed and the change-
able from all the rest. And neither our books of practice
nor the decisions of our tribunals inform us, with any great
exactness, or much in detail, what are the things which lie in
the extremes, and what and how proportioned are those
which have their places between. Yet the legal practitioner
is less embarrassed by these facts than on this statement he
would seem to be; because his good sense, his general un-
derstanding of the law as he has read it in the books, and the
results of his observations from day to day in the routine of
his duties, will ordinarily point out to him the tourse, in the
absence of other and specific direction.

[6]
CHAP. IL] CRIMINAL PROCEDURE. §11

CHAPTER II.

CRIMINAL PROCEDURE.

§ 10. Tuere prevails very extensively in the legal profes-
sion the opinion, that in the criminal law the procedure is
more fixed than in the civil department. Yet the truth is
the exact reverse of this. The forms of the indictment, in-
deed, remain substantially as they were a century ago ;! and
they continue so in practice, even in some of the States, and
perhaps in most, where legislation has provided rules which
‘may be followed at the option of the pleader instead of the
common-law rules. But in the practice of the courts, beyond
the mere forms of the indictment, — not meaning now to
speak of the rules of evidence, — almost all else in criminal
thatters is afloat. And he who reads intelligently the reports
of criminal cases in England at the present time, will observe
the same thing to exist there as here. Therefore, if in these
volumes the author states some doctrines with less confidence
of their being harmonious with what the judges will hold in
future cases, than he sometimes states legal propositions,
readers should blame, not him, but the subject. And if he
ventures sometimes beyond what the courts have in terms
laid down, and, in endeavoring to show the proper course in
the absence of any precise rule already established, directs
attention to those beams of light which the Maker has woven
into the framework of human things, he trusts that any pre-
sumption whereof he may thus seem to be guilty, will be
pardoned to his desire to render real help to practitioners
and to judges in the discharge of important duties.

§11. The reason of the present uncertainty in the law of
criminal procedure, lies partly in its history. Anciently the
English tribunals refused to men indicted for treason and for

1 See, however, post, § 21, 45.

[7]
§ 12 PRELIMINARY VIEWS. [Book I.

felony what is now regarded as an essential right, the benefit
of counsel at their trials before the petit juries. Counsel
were indeed sometimes permitted to argue before the judges
some special points of law, deemed by the judges to be diffi-
cult ones, but this was all. The counsel arguing were not
even ordinarily suffered to have a copy of the indictment ;
neither, for this matter, was the prisoner. And judges who
could establish such rules as these, cannot be ‘presumed to
have had in their understandings that pure light of juris-
prudence, wherein we in a better age can safely at all times
walk. They claimed, indeed, to be themselves the counsel
of the accused ; and truly they did, as counsel, raise before
themselves, as judges, some very nice points of law, which,
as judges, they sustained, letting prisoners go free in conse-
quence of those points, when a thousand sounder reasons
should the sooner have dictated the discharge.

§ 12. Let us illustrate this by an example. In the year
1684, a Presbyterian preacher by the name of Thomas Rose-
well was indicted for the high treason of compassing the
death of the king, the overt act being a sermon which he
preached at a conventicle. Called upon to defend himself
without the aid of counsel, he stood confused and confounded
before a tribunal thirsting for his blood. When the petit
jurors came up to be sworn, he was told, — the court, mind,
was his counsel, — that he might challenge peremptorily a
certain number without cause, before they were sworn, as
they came severally to the book. The first one who was
called came, and was hurried through the oath before the
poor preacher could collect his thoughts. When he told the
judge he had meant to challenge him, he received the follow-
ing reply :—

“ Lord Chief Justice. That you cannot do now he is sworn.

“ Rosewell. I was surprised, my lord; I did not know it.

“ZL. C.J. I cannot help it, Mr. Rosewell, you must mind your business.
We cannot unswear him again. Go on.”

And on the officers of the court did go, and swore another
juror before Mr. Rosewell could summon his mind to chal-

[8]
CHAP. IL] CRIMINAL PROCEDURE. § 18

lenge him. But he besought the judge to grant him the in-
dulgence of challenging then, as he was surprised into omit-
ting the challenge at the proper time. This request was like-
wise refused, for the sage reason, that “we cannot make a
new law for you.” A little further on, this Lord Chief Jus-
tice and counsel for the prisoner told the defendant: “ Pray,
now, mind the thing you are about. You are looking about
you for some private mark, or hint to be given you by some-
body, and so lose your time of challenging. You must chal-
lenge them as they come to the book to be sworn, and before
they are sworn.”” This admonition proved effectual, and the
divine challenged all the jurors who were afterward brought
before the temporal power to try him, as far as the law allowed
and his wishes prompted.

§ 13. The first witness produced by the prosecuting power
was a female treason-hunter, who, by false pretences, had got
admitted into the conventicle to hear the sermon, and who
testified to some damaging things said therein, to the utter as-
tonishment of the defendant. So when his turn to examine
this witness came, he wished to draw from her the language
and ideas employed in connection with, and prior and subse-
quent to, the words she stated to have been used by him as
treasonable. Thereupon he asked her : —

“ Upon what occasion came in the words about the two wicked kings ?

“ Smith [the witness]. In preaching, you brought it in by other proofs.

“ZL. C. J. [this venerable counsel for the prisoner speaking in the hear-
ing of the jury]. Why, man, there can be no occasion for speaking of those
words. You spoke them without any occasion at all. Nobody can tell
what occasion you had to speak them.

“ Roséwell. But, my lord, I suppose there may be some coherence in my
discourse. I would know how they were brought in.

“I, C.J. Who can tell the occasion ? Do you ask me what reason any
man has to speak treason ? I tell you there is none at all to be given for it.”

A little further on, the prisoner, following up the thread of
his cross-examination, pressed still more closely this witness,
swift-footed against him, but slow and unwilling to say any-
thing in his favor, with the following question: “ How came
in that about Jeroboam?” But swift witnesses must not be

[9]
§ 14 PRELIMINARY VIEWS. [BOOK 1.

cross-examined too closely by prisoners against whom they
testify, when the judges, their counsel, wish them to be con-
-victed. So the Lord Chief Justice — the prisoner’s counsel,
remember — interrupts the current, thus : —

“ How can she tell how you bring in treason ?

“ Rosewell. My lord

“I, C.J. Nay, pray, sir, hear me a little. You shall have all the lib-
erty to defend yourself that the law can allow of. We are accountable to
the law upon our oaths to do justice, and are as much accountable to heaven
for our actions, as you or any prisoner that comes to this bar is to the law for
your actions. But do you ask what reason you spoke treason for? I tell
you, no reason can be given for it.” *

 

§ 14. These passages are quoted simply as specimens of
what occurred, not only throughout this trial, but often in
the administration of the criminal law against those prison-
ers whom the judge deemed it important to have found guil-
ty by the jury. And we need not add, that Mr. Rosewell was
convicted, in spite of testimony brought forward in his de-
fence, sufficient to acquit in any ordinary circumstances such
as occur in modern times. But though Mr. Rosewell could
find no spot in that tribunal where the weary-winged truth,
bearing the facts, might set her foot, he could find a spot, in
even the mind of this Lord Chief Justice, sufficiently callous
with false technical law to enable him to make fast in it the
anchor of safety and escape. When he was called up to re-
ceive his sentence of death, in response to the usual question
why it should not be passed against him, he told the court,
there was a flaw in the indictment. Assuming the words, al-
leged in it as spoken by him, to be sufficient in law to con-
stitute the crime of treason, they, though fully set out in the
‘indictment, were not introduced in due form of legal eti-
quette to their place on the judgment seat! In vain the At-
torney-General and the Solicitor-General objected to the ob-
jection. The judge said there was weight in it, and counsel
must be assigned the prisoner to argue it before the court.

“ Ait.-Gen. All this, my lord, is only in delay.

“I. C.J. Mr. Attorney, De vita hominis nulla est cunctatio longa. I

1 Rosewell’s Case, 10 Howell St. Tr. 147 et seq.

[10]
CHAP. I], CRIMINAL PROCEDURE. §17

think we ought to assign him counsel, and the rest. of my brothers are of
that opinion too.”

§ 15. The learned gentlemen whom the court assigned as
counsel to argue the prisoner’s point of law, applied to the
court for a copy of the indictment ; or at least for so much of
it as would show them what they were to argue about. But
the request was denied. Said the Lord Chief Justice : —

“Look ye, if you speak to me privately, as to my own particular opin-
ion, it is hard for me to say that there is any express resolution of the law
in the matter, but the practice has been always to deny a copy of the in-
dictment. And therefore, if you ask me, as a judge, to have a copy of the
indictment delivered to you in a case of high treason, I must answer you:
‘Show me any precedent where it was done ; for there are abundance of
eases in the Jaw which seem hard in themselves, but the law is so because
the practice has been so, and we cannot alter the practice of the law with-
out an act of Parliament.’ I think it is a hard case, that a man should have
counsel to defend himself for a twopenny trespass, and his witnesses exam-
ined‘upon oath ; but, if he steal, commit murder or felony, nay, high trea-
son, where life, estate, honor, and all, are concerned, he shall neither have
counsel, nor his witnesses examined upon oath. But yet you know, as well
as I, that the practice of the law is so; and the practice is the law..... It
is hard, I confess, and so are many other things in the law; but I am won-
derfully tender of making precedents; and therefore, if it has not been
practised, I do not see how we can do it..... As far forth as I could do,
being in the case of life, I would indulge you; but I tell you, I am loath to
be the author of precedents in cases of this nature, one way or other.”

§ 16. So the counsel made their argument without the in-
dictment, as best they could; and the judges deemed the indict-
ment to be wanting in proper introductory averments, though
what was meant was perfectly plain to common apprehension,
and the treasonable words were, and purported to be, exactly
given. Therefore they recommended to the crown a pardon
for the poor preacher, which in due form he brought into
court, pleaded it, and received his discharge. Being a scholar,
he objected to the Latin of the indictment; but the Latin of
the pardon passed well with him. Thus was his life saved.

§17. The Lord Chief Justice who presided at the trial of
Rosewell, was Jeffreys ; a name now held in universal execra-
tion? But let us see whether the name of Jeffreys does

1 Rosewell’s Case, 10 Howell St. Tr. 2 There are two classes of men con-
147, 155, 165, 166, 260, 267, 268. cerning whom we can learn nothing

[11]
[BOOK 1.

§ 17 PRELIMINARY VIEWS.

stand justly in condemnation above all other names. Passing
down through a series of years, to a period supposed to be
more enlightened than that in which Jeffreys presided over
the Court of King’s Bench, —namely, to the year 1710, — we
find the whole House of Commons moving an impeachment
before the House of Lords, against Henry Sacheverell, D. D.,
a clergyman of the established church, for the misdemeanor
of publishing two sermons offensive to one of the political
parties of the country. There were four articles of the im-
peachment: the third article charged the defendant with
having, in these sermons, insinuated that the Church of Eng-
land was in danger; whereas, four years before, the whole
Parliament had solemnly voted her to be out of danger, and,
on address of the Parliament, the queen had issued a procla-
mation declaring such to be the fact in her case. The other
articles were of a like sort. Had the trial been before the
Court of Queen’s Bench, and had a Jeffreys presided, the pris-
oner would have been allowed counsel ; for, in this case, the
offence was not treason or felony, but misdemeanor. And
so the Lords, sitting to try him, permitted him to be defended
by counsel. They, however, convicted him; and he, the pure
churchman, who feared for the church, as Rosewell the dis-

certainly, either from contemporaneous
history, or from subsequent historical
research. The one class, are those
who have been especial favorites in their
day ; the other; those who have been es-
pecial objects of detestation. Wool-
rych, in his Life of Jeffreys, p. 145,
gives the following reason for the course
pursued upon the motion of Rosewell in
arrest of judgment: “ Rosewell made
a very admirable defence ; and, happily
for him, there was present a baronet,
Sir John Talbot, who, though not
friendly to dissenters, highly appreciated
what he had said, and thought the ver-
dict wrong. From the trial he posted
away to the king, and declared that he
had seen the life of a person, who ap-
peared to be a gentleman and a scholar,
in danger upon such evidence as he
would not hang bis dog on; and, ‘ Sir,’

[12]

says he, ‘if your Majesty suffers this
man to die, we are none of us safe in
our houses.’ This address had a full
influence upon the royal ear; and,
whilst it was operating, in came Jeffreys
overjoyed, and vaunting of the signal
service which he and the Surrey jury
had done; when, to his utter confusion,
the monarch replied, under a strong
feeling of sympathy, that the prisoner
must not die, and that he, Jeffreys, must
find out some way to bring him off.”
This statement may, for aught I can
prove to the contrary, be true. Lord

- Campbell, in his Lives of the Chancel-

lors (for Jeffreys was afterward made
Lord Chancellor), says, Jeffreys was
anxious for the acquittal of Rosewell !
But, be this matter as it may, the ac-
count of the trial, as I have given it, il-
lustrates the point of my text.
CHAP. II.] CRIMINAL PROCEDURE. § 18

senter had feared for the souls of men, moved, as Rosewell
moved, in arrest of judgment. In Rosewell’s case, the words
had been duly set out in the indictment. In Sacheverell’s
case, the impeachment gave no words, neither gave the sub-
stance of any words, but only said the defendant had insinu-
ated, and the like. The Lords asked the reverend judges
of England present, to lend their advice on the occasion,
“ Whether, by the law of England, and constant practice in
all prosecutions, by indictment or information for crimes and
misdemeanors, by writing or speaking, the particular words
supposed to be criminal must not be expressly specified in
such indictment or information?” The judges answered,
with one voice, that they must. Thereupon, “ It is resolved,
by the Lords spiritual and temporal, in Parliament assembled,
that, by the law and usage of Parliament, in prosecutions by
impeachments, for high crimes and misdemeanors, by writing
or speaking, the particular words supposed to be criminal
are not necessary to be expressly specified in such impeach-
ments.” +

§ 18. So poor Sacheverell, pursued by the whole commons
before the other branch of the English legislature, fared worse
than Rosewell, pursued before the Court of King’s Bench by
the Attorney-General and the Solicitor-General of the crown.
And popular wrath is often more unreasonable, and less to be
borne, than individual, royal wrath. This fact should lead
the people of the United States to beware how they take down
the barriers which the wisdom of the common law has erected,
during the struggles of liberty with despotism, between the
accusation of the offence and the sentence of the court against
the criminal. In times of peace, prepare for war; in times
of repose to liberty, prepare for the day of her conflict. And
above all, let us remember that liberty dwells not in the mere
outward forms of any government; therefore despotism may,
if we do not watch, enter within the pale of American law,
and there bind and subjugate the minority of the people.

1 Sacheverell’s Case, 15 Howell St. as our secession war, when martial law
Tr. 1, 37, 466, 467, 471, 473. is both constitutionally and politically
2 We here sce one of the strongest justifiable, the people should welcome
reasons why in times such, for instance, it, rather than kick against it; because

VOL. IL. 2 [13]
§ 20 PRELIMINARY VIEWS. [BooK 1

§ 19. The reader has observed with what tenacity Jeffreys,
as reported in Rosewell’s case, adhered to the established prac-
tice, and how fearful he was of making a precedent. And his
type of mind is not uncommon among lawyers of eminent
learning, who have presided, and still preside, over our courts
of justice. That the practice to which he adhered, in refus-
ing counsel, and in refusing a copy of the indictment, would
not now be followed by any judge in the United States, even
if subsequent legislation had not, as it has, ordered otherwise
on these points, cannot for a moment be questioned. But
judges differ in the intensity of their reverence for forms, and
of their reverence for justice. The conflict has been great
between the old forms, as far as they are oppressive, and the
demands of justice, made upon particular judges, in partic-
ular cases. Hence the result, stated already, that the prac-
tice of our day is less settled in criminal matters than in
civil.

§ 20. Still another matter remains to be noted. When un-
just rules, such as those of which we have here been speaking,
have pressed heavily upon prisoners, merciful judges, in con-
sideration of the hardship, have been led to listen more atten-
tively to nice and technical objections urged in their favor,
than otherwise they would have done. And, in consequence,
there have grown up some rules, particularly of pleading, and
as respects the indictment, too subtle to accord with the more
enlightened judgment of the present day. Most of these
over-subtle rules have, in the majority of our States, been
abolished by legislation; a few, that have not been so abol-
ished, have been discarded by the judges, without waiting for
the hand of legislation to lop them off; and now, little of this
sort, beyond a too close adherence to old technical words and
forms of expression, remains for us to condemn. Indeed, the
tendency now appears to be rather in the direction of too
loose a practice, and too indefinite a form of the allegation.

if, in such times, all things are sent into Oppress men who, not by rebellion, but
the civil courts as usual, the precedents by peaceable means, are seeking to re-
in those courts will necessarily become form abuses. And see Crim. Law, I.
corrupted, and then they may be used to § 55, 68.

[14]
CHAP. IL] CRIMINAL PROCEDURE. § 28

For, although the unthinking multitude —crying to-day for
this reform, and to-morrow for that; pursuing with hot blood
one class of offenders to-day; another, to-morrow — desire
oftentimes almost the entire removal of the obstruction of a
formal trial and conviction between the offence committed
and the punishment following ; wise men see, that what serves
to impede in some instances the rapidity of the course of
justice, in other cases is the protection of innocence in its
hour of peril and of anguish. And surely innocence needs
protection as truly as guilt merits punishment.

§ 21. Some very strong expressions have been made by
American judges, to the effect, that we of this country disre-
gard the technicalities of the English common law in our
pleadings in criminal cases.1_ But actual observation of the
decisions of our tribunals establishes that, except as statutes
have otherwise ordered, the courts of our entire country do
follow substantially the common law of England upon this
subject, the same as upon other legal subjects.

§ 22. There are some points on which even the English
common law of criminal pleading is not sufficiently favorable
to defendants. These points, or some of them, will be no-
ticed in their proper places. But let the observation be here
made, that, wherever such defects are found in the common
law, they demand legislative amendment, perhaps also amend-
ment by judicial decision, as much as the defects of too great
nicety and too close adherence to technical rule. It is now
the fashion to say much concerning the one sort of defect,
nothing concerning the other. Let us be just, not rashly
casting down without also building up.

§ 23. In all the States of our Union, and in the tribunals
of the United States, criminal prosecutions are carried on by
a public officer, learned in the law, and chosen for this par-
ticular purpose. This officer has great power in his hands ;
he may practically, in almost every case, prevent the grand
jury from finding an indictment, as he always or nearly al-
ways in practice draws the indictment. And, after it is found,

1 See Harriman v. The State, 2 Greene, Iowa, 270, 279; McKinney v. People, 2
Gilman, 540; ante, §10; post § 45.
[15]
§ 25 PRELIMINARY VIEWS. [BOOK 1.

he may refuse to pursue the accused, if he will. Such an
officer ought to possess that element essential in the charac-
ter of a truly great lawyer, integrity to the highest degree.
He ought also to possess the highest qualifications of learn-
ing, and exactitude of mental habit. A man of this sort need
never permit an offender to escape by reason of any defect in
the indictment, though the judges should hold him to exact
rule. And if the government or the people, as the one or the
other has the appointing or electing power, sees fit to confer
the office on some man whose qualification is simply that he
can bawl loudly and long before his countrymen met to de-
termine what candidates shall be put in nomination for office,
surely, though criminals should escape through his blunders,
it does not become government or people to complain. And
neither people nor government has the right, in the presence
of the Power who rules all, to remove any one of the neces-
sary bars which liberty has put up around her children, be-
cause they may expose the weakness of some tool of party,
whom people or government is pleased to honor and reward.

§ 24. Let us now, having noticed those general matters
which concern particularly the pleading and practice, proceed
to a consideration of some things which relate to the law of evi-.
dence. When we come, in regular course, to this part of our
subject, we shall be obliged to discuss it even more on prin-
ciple, and less on authority, than we do the other two divi-
sions. The law of evigence is not so fixed, either in its nature
or in the adjudications of the tribunals, as to a lawyer of su-
perficial reflection it appears. Moreover, this branch of the
law is almost all common law ; modern statutes have, indeed,
extended more or less the rules which determine who may
be heard as witnesses ; but they have not generally proceeded
much, if at all, further. And well is it for our jurisprudence
that they have not; because, in the nature of things, this de-
partment of any judicial system must rest almost entirely in
adjudication. Without great peril there can be no material
interference with it by legislation.

§ 25. And the fact that legislation can never put its hands
on this subject without fear and trembling, should induce the

[16]
CHAP. II] CRIMINAL PROCEDURE. § 27

courts to be more watchful to correct old errors here, than
in most other departments of the law. What old errors do
here exist we shall not now pause to consider; because this
matter, as concerns the criminal law, has a place further on ;
and, as concerns the law of evidence in a general view, it
does not come within the scope of these volumes.

§ 26. Upon a just administration and just views of the law
of evidence in criminal cases, depend the liberties and lives
of the people to a greater degree than most persons imagine.
No man is ordinarily accused of a crime, especially of one
which stirs the popular passions, until the public has pointed
its finger at him. And public opinion selects in this manner
no man whom it deems innocent. But why does the public
sometimes deem men to be guilty, when they are not? Sim-
ply because in most instances of the sort it suffers itself to
be misled by erroneous rules of evidence. For example, if a
mere rumor implicates some person in a foul transaction, the
public adopts hearsay evidence, and condemns the victim.
Now the object of a trial before a jury representing the pub-
lic, is to bring the proper testimony, omitting the improper, to
the consideration of the jury under proper instructions from
the judge. But if erroneous rules of evidence are to govern
on this occasion also, as well were the question left where it
stood, on the larger verdict of the uncounted multitude.

§ 27. What are the rules of evidence to be applied in
criminal cases, must be left for our consideration in the later
chapters of this volume ; and, in connection with the several
offences, in the chapters of the second volume. It may here
be observed, however, that in this matter of evidence a judge
should not deem himself so closely bound by precedents, when
they are, to his clear apprehension, wrong in principle, as in
most other departments of law. No man, looking at any ques-
tion relating to any subject of human cognizance, is in good
conscience justified in entirely ignoring the opinions of others.
Indeed, every man, upon every subject, should think and act
as the better part of the world does, until a new path lies so
plainly and well-defined before his understanding as to leave
in him no choice but to walk in it. While even a shadow of

2* [17]
§ 28 PRELIMINARY VIEWS. [BOOK I.

reasonable doubt obscures his mind, though he sees the new
path still, he should refrain from placing his feet therein.
And much more is this true, when the man is acting as a
judge, to administer laws in which other persons than him-
self have a deeper interest than he. Here, in many things,
in most, the established doctrine binds him. He must ordi-
narily administer the law as he finds it, though convinced it
is wrong. But that the rules of evidence, with perhaps such
exceptions as the rules which determine who may be wit-
nesses, and some others of the like nature, do not belong to
this class of absolute laws, where the judge has no discretion
but to follow what he finds, though he sees it to be contrary
to justice, let us proceed to consider. Yet let not the reader
be alarmed, for the propositions about to be laid down should
be applied only in those classes of cases and those circum-
stances to which they are in their nature applicable. There
may be a rule of evidence, there are such rules, of so techni-
cal a nature, or so pertaining to the substance of the law it-
self, as to be as immovable by the judicial power as anything
else within the entiré field of our jurisprudence.

§ 28. When the law provides, that ‘he who, for example,
commits a larceny, shall be deemed guilty of felony and pun-.
ished in a way which it points out, it lays down, as all admit,
an absolute rule. But the law does not say — what it could
not without modifying this absolute rule — that he of whom
such and such things are stated under oath, and only he,
shall be adjudged guilty of larceny. The two propositions
are in their nature repugnant. Therefore, if a judge means
to administer the law as he finds it, and a man is before him
on his trial for larceny, he must receive on the one hand what,
he clearly sees, tends to establish the fact, and on the other
reject what, he clearly sees, tends not to establish it. To do
otherwise is to disregard what he finds to be existing law. If
he finds that other judges, in like circumstances, have admit-
ted or rejected particular evidence which he sees should have
been disposed of otherwise, this fact may well prompt him to
exercise the utmost caution respecting his own decision, but
it cannot control his own. Two repugnant things cannot

[18]
CHAP. II] CRIMINAL PROCEDURE. § 30

exist in the law together. If even a statute contains two
clauses repugnant to each other, the courts in construction
always reject one of the clauses or both; much more must
they reject what is put forward as a rule of evidence, when it
is repugnant to what all admit to be a fixed rule in the law
of the case.

§ 29. But there is another consideration urging to the
same conclusion. It is, that, in the nature of things, the ad-
mission of testimony is always a matter of discretion in the
judge, — a judicial discretion, indeed, it is, wherefore every
judge is bound to walk by previous rule, if he can, — yet no
discretion, judicial or otherwise, can ever be exercised prop-
erly in a way to overthrow what the person exercising it
clearly sees to be the established law. Moreover, the circum-
stances of cases differ; what would justly be admissible un-
der one set of circumstances would not be so of necessity
under another set; therefore the course of the court in one
case cannot bind it as by positive authority in another case.
And for a judge to say to a jury, “ Gentlemen, I have some
evidence which ought to lead you to a different conclusion
from that to which I see you will arrive in the case as it
now stands before you, but I shall withhold it and let you
find a wrong verdict, and then I shall pronounce judgment
on your verdict, knowing it is wrong, because other judges
in cases a little like this, though not identical, have withheld
evidence a little like what I have here to withhold, though
not the same,’ —is but another way of telling them, he means
to violate his oath of office, and to make them bear him out
in doing this.

§ 80. These observations refer rather to what the author
sees to be the clear deductions of legal reason than to any-
thing expressly laid down in the books. There are legal
gentlemen who will withhold from them their approbation. .
Like observations might be made concerning those directions
which the judges are in the habit of giving to juries as to
presumptions, the burden of proof, the weight of circumstan-
tial evidence, and other practical matters of the sort. These
directions are in the main even less entitled to the character

[19]
§ 31 PRELIMINARY VIEWS.. [BOOK 1.

of fixed law than rulings on the admissibility of testimony.
We shall find them to have been, in many instances, very
unsatisfactory in their nature, and delusive in their tenden-
cy. Yet they cannot be overlooked when we are considering
what the law is; and some of these things, in some circum-
stances, are correctly classed among the fixed, the immova-
ble, the absolute things in our jurisprudence. General words
cannot distinguish here; but the reader is referred to the mi-
nuter discussions which will follow in their proper places.

§ 81. Let not these observations be misunderstood. Pre-
cedents will always have their weight, even in matters of ac-
knowledged individual discretion in the judge. But the law,
like all other things, must go onward, becoming better and
better ; or, taking the path toward decay, it must become
daily worse and worse. It cannot stand still. Nothing, either
on the earth or around it, is stationary ; all moves. Legisla-
tion cannot wisely, to any great extent, direct the movement
in the law of evidence ; it must be done, if wisely, by the ju-
dicial hand. And the purpose of these suggestions is to show
that here the judicial hand is not absolutely tied.

[20]
CHAP. III. ] OUTLINE OF PROCEEDINGS. § 84

CHAPTER III.
OUTLINE OF THE PROCEEDINGS IN A CRIMINAL CAUSE.

§ 32. Iv will assist the student in his subsequent studies
of these volumes, to see drawn before him here, a sketch of
the various proceedings by which one who has committed a
crime is pursued till he is made to suffer the punishment due
from the law. Only in brief and very rough outline, however,
‘will this matter be given in the present chapter; because to
descend into detail would require a statement here of much
which must be repeated further on.

§ 33. When a man has committed a crime, the first step in
the course of justice is to arrest him. Under some circum-
stances, and with respect to some crimes, the arrest may be
made by the proper officer, or even by a private individual,
without any warrant; under other circumstances, and with
respect to other crimes, there must be first a warrant obtained
from the proper judicial source. In no circumstances, and
with respect to no crimes, is the warrant improper, if it can
be had. When it is necessary there should be a warrant, and
when not; how the arrest is to be made, as to the manual
touch, the breaking of doors, the pursuit after an escape, and
the like ; what the person arresting is to do with the person
arrested ;—these, and other things connected with them, fur-
nish a very considerable title in the criminal law.

§ 84. When there has been an arrest, it becomes necessary
to hold the prisoner in some way for his trial. If the arrest
was without warrant, application should be made to the proper
judicial officer, usually a justice of the peace, to institute the
appropriate judicial proceedings. These may consist of a for-
mal trial on complaint entered ; or, if the crime is of a mag-
nitude beyond his jurisdiction to punish it, there will be an
examination to ascertain whether the prisoner shall answer
before a higher tribunal. If the arrest was on warrant, the

[21]
§ 38 PRELIMINARY VIEWS. [BOOK 1

officer serving the warrant took the prisoner before the tribu-
nal issuing it. With respect to most crimes, the prisoner has
the right, up to the time of the final sentence of the court on
the main issue against him, to avoid being committed to jail,
by giving bail, as it is called, for his appearance, from time to
time, before the judicial tribunal.

§ 85. For some of the inferior offences, the trial may be
had, on a written complaint tendered, before the court of a
justice of the peace, or other petty court. But for the heav-
ier offences the trial must proceed, not on a complaint, but
on indictment found by the grand jury, or, in some States and
under some circumstances, on information filed by the prose-
cuting attorney, before some one of the higher courts, pro-
ceeding with the aid of a traverse jury. And when the trial
is before a petty tribunal, the defendant has generally the
right of appeal to a higher.

§ 86. Connected with the form of the indictment or infor-
mation, there are a vast number of questions of law; also,
connected with the pleadings, or proceedings of record sub-
sequent; also, connected with the evidence; also, connected
with the proceedings after verdict found against the defend-
ant; for, after he is convicted by verdict, he has often various
ways by which he may hope still to escape the punishment, or
to obtain a rehearing on the merits.

§ 87. Now, it will not be either scientifically well or prac-
tically convenient, in the following pages, to trace the several
steps of a cause in their order in point of time, or natural
succession. They do not, in point of fact, always follow one
‘another in precisely the same order; but, what is more im-
portant, they have to one another certain legal relations,
which, in a discussion of them, it is of the highest practical
and scientific importance to preserve.

§ 88. If, in reading these volumes in the order in which
they are printed, the inquirer meets with terms he does not
yet understand, he can, by the help of the Index, look for-
ward to where they are explained. Thus his way will be
made easy. But, in the actual discussion of the subject, it is
best to begin with the part which relates to pleading; then

[22]
CHAP. It. ] OUTLINE OF PROCEEDINGS. § 39

pass to the evidence; then to the practice; bringing under
review some of the first things almost last. Having thus, in
the first volume, considered the general doctrines, we shall
be prepared to examine, in the second volume, the procedure
relating to the specific offences severally.

§ 89. But even this plan of the arrangement must be held
subordinate to the general idea of grouping together things
which belong together ; so that, when a subject is commenced,

it may be finished as far as possible in the place where it first
arises.?

1 And see post, § 83.

[23]
BOOK II.

PLEADING AS RESPECTS THE INDICTMENT.

CHAPTER IV.
INTRODUCTORY VIEW OF CRIMINAL PLEADING.

§ 40. Ture is not much difficulty in framing the plead-
ings in a criminal case, if the pleader is familiar with the
general rules of pleading in civil causes, except as concerns
the indictment or information. Still it will be necessary, in
our next Book, to go over the matter of the pleadings subse-
quent to the indictment, and state the general rules governing
the subject; both because practitioners at the present day are
not generally well acquainted with civil pleadings, and be-
cause there are some rules peculiar to the criminal depart-
ment important to be understood. In the series of chapters
which constitute this book, the indictment will be brought
under a somewhat minute examination; in the present chap-
ter, a few general views will be presented relating to the
whole subject of criminal pleading.

§ 41. The necessity for requiring parties, who are seeking
to establish claims against one another, to present in writing
the particulars of their claims, is obvious; since. otherwise
the judge cannot have any foundation on which to proceed
in pronouncing judgment upon the case submitted to him.
But equally obvious also is it, that, on other grounds, even
more than on this one, rests the duty of written and distinct
allegation ; for, the world being possessed of the art of writ-
ing, no man should be called to stand his trial on any charge
whatever, before any human power, until such charge has

[24]
CHAP. Iv.]

INTRODUCTORY VIEW OF CRIMINAL PLEADING. § 42

been so set forth as to leave no doubt concerning its nature
and its limits, and leave it impossible for the accuser to vary
it in the course of the hearing. Whatever comes short of
this, comes short of that justice which every individual, how-
ever erring, is entitled to receive from his fellows. In early
ages of the world, when writing was unknown, —such, at
least, was the fact under the early Roman law,— the thing in
controversy was brought manually, if possible, into the pres-
ence of the magistrate ; and, when it was of a nature not to
be so presented, the nearest practicable approach to this ab-
stract justice was made.! But now the written, charge or
claim stands in the stead of the manual presence. And the
doctrine concerning this written charge is, that it must be
made as distinctly and directly as the nature of the case, in
reason, will permit.

§ 42. The first point to be stated is, therefore, that the
allegation must be what is called cerfain. The meaning of
this word, certain, in legal phrase, seems to be, to use a figure
of speech, exact in outline, with a complete filling up. Lord
Coke says: ‘‘ There be three kinds of certainties, — first, to a
common intent, and that is sufficient in a bar, which is to de-
fend the party and to excuse him. Secondly, a certain intent
in general ; as in counts, replications, and other pleadings of
the plaintiff, that is to convince the defendant ; and so in in-
dictments, &c. Thirdly, a certain intent in every particu-
lar.”2 This language of the learned person does not convey
a very “certain” meaning to the minds of inexperienced

1 Just. Inst. Sand. Ed. 64 et seq., in
the Editor’s Introduction.

or charge the party; the third, is re-
jected in law.” But Lord Coke cannot

2 Co. Lit. 303 a. He adds here, in
illustration of this third kind of cer-
tainty, ‘‘as in estoppels.” In Long’s
case, 5 Co. 1204, 1214, it is said:
“There are three manner of certainties :
1. toa common intent; 2. to a certain
intent in general ; 3. to a certain intent
in every particular. The first intent is
sufficient in bars which are to defend the
party and excuse himself; the second,
is required in indictments, counts, repli-
cations, &c., because they are to accuse

VOL. I. 3

here mean, that there are no cases in
which this third kind of certainty is re-
quired ; for thus the passage would be
in direct conflict with what has been
cited in the text from his Commentary
on Littleton. The true proposition is,
that this third kind of certainty is not
required in any defence or pleading
which the law favors, but that it is re-
quired where anything is set up which
the law does not favor. And see post,

§ 37 and note.
[25]
§ 44 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

readers; but we gather from it, and from other statements
found interspersed throughout our books of the law, that
there are recognized by our courts three distinct degrees of
what is called certainty. And the certainty which concerns
us most in these volumes is of two of the degrees only ; that
is, certainty to a certain extent in general, being the middle
one of the three certainties mentioned by Lord Coke ; and
certainty to a certain extent in every particular, being the
last and most extreme degree mentioned by him. Yet the
first-mentioned kind of certainty, being what Lord Coke calls
certainty to a common intent, is plainly all which is required
in such special pleadings of the defendant as former jeopardy,
pardon, and the like ; going, as they do, to show that no prose-
cution should be carried on against him relating to the mat-
ter of the indictment.

§ 43. No general direction given here would enable the
reader to understand the nature of the middle kind of cer-
tainty, being what is necessary, as he has already seen, to be
employed in indictments : if such a direction were practica-
ble, and a sure guide, there would be little need of the sub-
sequent chapters of this book. We read often, in opinions
given by judges, that the rules of pleading are the same in
criminal cases as in civil; therefore, that what would suffice
in a declaration will suffice also in an indictment. But this
is hardly so; if it were, still the general proposition would
help us only a little ; even then we should be obliged to trav-
erse the field of actual adjudication on this subject, as now.

§ 44. It is not in the nature of man that the judges should
hold the pleader to precisely the same rules, when he charges
against one some light matter of civil wrong, or breach of con-
tract or duty, and when he brings the person before the tri-
bunal to ‘answer for a crime on which his life depends.
Therefore, though the books contain more or less such lan-
guage as is mentioned in the last section, and though this
language is in a certain sense correct, still the practice is, to

1 Rex v. Lawley, 2 Stra. 904; Sher- 233. And see The State v. Nutwell, 1
ban ». Commonwealth, 8 Watts, 212; Gill, 54. But see Rex v. Marsden, 4
United States » Brown, 3 McLean, M.&S, 164, 168.

[26]
CHAP. IV.] INTRODUCTORY VIEW OF CRIMINAL PLEADING. §45

require greater strictness in criminal matters than in civil;
and, in criminal matters, greater strictness in indictments for
felonies and other high crimes, especially in capital crimes,
than in mere misdemeanors, especially misdemeanors of the
lower sort. And not unfrequently we find doctrine like this
laid down in express words by the judges.!

§ 45. We have already seen,? that the practice of the courts
in criminal cases has very much changed in modern times, yet
the old form of the indictment substantially remains. Now,
there are judges who have held quite different language from
this when speaking of the indictment. Thus, a learned judge
in Tennessee once observed: ‘ Much is to be found in the
books upon the certainty to be required in an indictment; and,
in the more remote periods of our law, some of the cases show
that, at times, niceties have been indulged in, and distinctions
countenanced, which in modern times cannot and ought not to
be given in to or admitted. These anomalies in the law, to be
found in the history of criminal proceedings in ancient times,
though not now to be encouraged, and much less followed as
precedents, still are not to be condemned, considering the
times and circumstances under which they existed, especially
as far as they were favorable to the prisoner. They exhibit
the virtuous feelings of the worthy judges, leaning in behalf
of the oppressed, and struggling against the over-riding power
of the crown bent upon the destruction of its innocent, and
too often obnoxious, victim. These times are passed over,
I hope never to return, and with them we ought to pass
over the precedents to which they gave rise.”? True, as we
shall see in chapters further on, there has been considerable
modern legislation intended to remove old technical absurdi-

1“ We have repeatedly decided,” courts of law are not at liberty to make
said Turley, J., in the Tennessee case intendments and inferences to support
of Martin v. The State, 6 Humph. 204, indictments, in the same manner as they .

206, “that in indictments for misde- may do to support civil actions.” See
meanors we will not require as great also Ike v. The State, 23 Missis. 525.
certainty as in indictments for felonies.” 2 Ante, § 10.

To the like effect is United States v. 8 Whyte, J., in The State v. Pearce,
Lancaster, 2 McLean, 431. So in Peck, 66; s.r. McKinney v. People, 2
United States v. Davis, 5 Mason, 356, Gilman, 540.

361, Story, J., said: “In criminal cases,

[27]
§ 46 [BOOK IL

PLEADING AS RESPECTS THE INDICTMENT.

ties in the indictment, yet aside from these there is really no
great change; though the courts do not now give so attentive
an ear as they once did to objections resting in no substantial
reason. And, as Lord Ellenborough, OC. J., once observed,
looking at the matter in a practical and common-sense way:
“ Undoubtedly it is advisable in most cases, and especially in
indictments, to adhere to old forms, even if it were only for
the sake of uniformity of proceeding.” But more than this,
the old cases are now, in all our courts, listened to as author-
ities on this subject, the same as on other legal subjects.

§ 46. The extreme kind of certainty, called certainty to a
certain intent in every particular, is required by the tribu-
nals when a party pleads any matter, not entering into the
merits of the case, but going merely to defeat the pending
proceeding against him. And this kind of certainty is de-
manded on the very just ground, that he who stands on a
technicality to ward off inquiry into his conduct, in distinc-
tion from defending himself upon the merits, shall himself
stand very technically erect. Likewise he shall not defeat at
all what is attempted of inquiry, without at the same time
disclosing to the other party how the defect may be cured on
a new proceeding instituted. This third or extreme cer-
tainty is also required in estoppels, because the law does not
favor estoppels; and it has been said also to be required in
the plea of alien enemy, and for the same reason. When, on
the other hand, a party puts his defence directly on the mer-
its of the cause, and the defence is of a nature not odious
in the law, he is properly in favor, even more than is the par-
ty who brings the accusation, in respect to the pleadings; he,
therefore, is held only to the lowest kind of certainty, being
the certainty to a common intent.?

1 Rex o. Marsden, 4 M. & S. 164,

168.

2 The several propositions in this sec-
tion are plainly sustaivied by the au-
thorities, yet it would not be easy to cite
from the books, after each clause in the
statement, a passage from an approved
source upholding it in exact words.

[28]

For example, there is no proposition in
this section more “ certain” to the mind
of one familiar with the course of adju-
dication relating to the matter, than
that the extreme certainty mentioned is
requisite in those defences which go
simply to defeat the particular action,
— as, for instance, that it is brought in
OHAP. IV.] INTRODUCTORY VIEW OF CRIMINAL PLEADING. § 48

§ 47. In later pages of this volume, we shall devote a chap-
ter to the subject of criminal informations. The information
is drawn after the same rules as an indictment; it is not the
ordinary form of proceeding in this country ; but it is some-
times used, and, therefore, is necessary to be understood.
Until we arrive at that chapter, we shall discuss the indict-
ment, and the attendant proceedings, as though there were
no other mode of procedure known ; referring, when neces-
sary, to adjudications under informations,—a course of dis-
cussion adopted for the sake of convenience. Meanwhile, let
it be borne in mind, that the certainty required in an indict-
ment is of the middle sort, called certainty to a certain
intent in general.

§ 48. Various attempts have been made by judges and
law-writers to explain, in brief words, this middle kind of cer-
tainty, as a guide to those who would determine whether a
particular indictment is sufficient or not. Thus in one case
the learned judge observed: “ It is a well-established princi-
ple, that, if all the facts alleged in an indictment may be true,
and yet constitute no offence, the indictment is insufficient.
A verdict does nothing more than to verify the facts charged ;
and, if these do not show the party guilty, he cannot be con-
sidered as having violated the law.”! And Lord Mansfield
had already said: ‘In a criminal charge, there is no latitude
of intention, to include anything more than is charged ; the
charge must be explicit enough to support itself’? The in-

the wrong county — but do not go to
the merits ; yet, after some searching,
‘I have not met with a passage which
sustains this proposition in precise
words, though I do not. mean to deny
that such a passage may be found; un-
less, indeed, some language used by
our American Gould may be deemed,
as I think it is, sufficiently to the point.
Gould Pl. ¢. 3, § 51-59. And see, as
‘shedding light on a matter like this,
1 Bishop Mar. & Div. Pref., and Crim.
Law, I. § 508. Many of the best-
established rules of our law — estab-
lished in actual adjudication — have

3*

never yet been announced, either by
judges, or by the writers of text law.
And see, on the doctrines of the text,
Rex v. Horne, Cowp. 672, 682; Dovas-
ton v. Payne, 2 H. Bl. 527, 530; Rex
v. Lyme Regis, 1 Doug. 149, 159;
Derieman v. Fennar, 7 M. & W. 439,
440; Barker v. Thorold, 1 Saund. Wms.
ed. 47, 49, and note; Com. Dig. Plead.
C. 17, E. 7; Steph. Pl. 353, 380; 1
Chit. Pl. 233 - 235 ; ante, § 35 and note.

1 Teriney, J., in the State v. Godfrey,
24 Maine, 232.

2 Rex v, Wheatly, 2 Bur. 1125, 1127.
And see The State v. Seay, 3 Stew. 123.

. [29]
§ 50 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

dictment, it has been otherwise laid down, must contain all
the material facts necessary to be proved, in order to procure
a conviction.

§ 49. But plainly, suggestions of this kind can render but
little practical help in cases of difficulty. Yet, without under-
taking here to collate the authorities, the writer will venture
upon the following statement of the certainty which is ordi-
narily required in indictments: There must be such an aver-
ment of facts as shows, prima facie, guilt in the defendant ;
and if, supposing all the facts set out to be true, there is, be-
cause of the possible non-existence of some fact not mentioned,
room to escape from the prima facie conclusion of guilt, the
indictment is insufficient. But it is not insufficient by reason
of its omitting to answer what of fact may be suggested in
the way of defence. This definition of the required certainty
does not render, of itself, under all circumstances, any com-
plete help, because it leaves open the question, — What is
prima facie guilt? or, in other words, What is matter merely
of defence ? This question the reader can see fully answered
only as he traces the line of adjudication. Still there are cir-
cumstances and cases in which these views will furnish even
a complete guide, and always they will be found helpful.

§ 50. An excellent work on the subject of pleading con-
tains the following: ‘Certainty of the third sort, or ‘to a cer-
tain intent in every particular,’ requires the utmost fulness
and particularity of statement, as well as the highest attain-
able accuracy and precision ; leaving, on the one hand, noth-
ing to be supplied by intendment or construction; and, on
the other, no supposable special answer unobviated.2. The
rule requiring this degree of certainty is a rule, not of ‘con-
struction’ only, but also of ‘ addition’ ; that is, it requires the
pleader, not only to answer fully what is necessary to be an-
swered, but also to anticipate and explain all such supposable
matter as would, if alleged on the opposite side, defeat his
plea.2 This last requisite affords a clear and marked distinc-

1 The State v. Philbrick, 31 Maine, % Co. Lit. 352 3,
401, 403. And see People v. Gates, 13 § Willes, 554; Lawes Pl. 55.
Wend. 311, 317.

[30]
CHAP. IV.] INTRODUCTORY VIEW OF CRIMINAL PLEADING. § 52

tion between this and the two former kinds of certainty. For
in these two, nothing more is necessary, in general, than, to
answer fully the substance of what is actually affirmed by the
‘adverse party ; or, at most, to make out a claim or defence
prima facie sufficient, without anticipating other matters not
already appearing in the pleadings, but which may possibly
be alleged in reply.’?

§ 51. Another point of certainty in these pleadings of the
third class, when brought forward to abate the particular pro-
ceeding, is, as already intimated,? that, if the defendant sets
up some matter of fact known peculiarly to himself, by reason
of which the proceeding cannot go on, he must allege, not
only so much of the fact as shows the proceeding wrong, but
must accompany the allegation of the fact with such further
matter as will show what would make the proceeding right.
“Tf, for example,” adds the author last quoted, “‘ the defendant
is misnamed in the writ or declaration (as if A is sued by the
name of B), it is not sufficient for the defendant to allege in
his plea, that his name is not B; he must also show in his
plea, that his true name is A ; and must aver that he was, at
the time of the writ purchased,’ known and called by the lat-
ter name ; and must, moreover, subjoin and traverse, that he
was known or called by the name of B,* thus excluding, by an-
ticipation, every supposition which could justify the plaintiff

‘in giving him the name of B.”5 The true reason of this doc-
trine, however, is, that the courts will not listen to a defendant,
seeking merely to evade the particular suit, not showing him-
self exempt from prosecution altogether, unless he will dis-
close how he may be lawfully proceeded against.®

§ 52. It is a familiar doctrine, acted upon in all the de-
partments of the law, that the court is always presumed to
be acquainted with the law, even in its minutest detail, and
as applied to every class of facts which may arise, yet is not

1 Gould Pl. p. 84, § 57. Roberts v. Moon, 5 T. R. 487; Com.

2 Ante, § 46. Dig. Abatement, I.11; Lawes Pl. 107;

3 Holman v. Walden, 1 Salk. 6; Dovaston v. Payne, 2 H. Bl. 527, 530.
Bac. Ab. Pleas, &c. F. 3. 5 Gould Pl. p. 96, § 59.

4 Willes, 554; 1 Lill. Ent. 6; 2 Chit. 6 See ante, § 42, 46.
PL. 418; Hixon ov. Binns, 3 T. R. 185 ;

[31]
§ 55 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

acquainted in any degree with the facts of any particular case
until informed of them. The object of a pleading in court,
therefore, is, among other things, to make the judge, who
presides over the tribunal, acquainted with the particular
facts of the case under consideration. Wherefore a pleading
alleges facts; but, when artistically drawn, it does not allege
law. It'is never of any avail for a party to state in his plead-
ing a matter pertaining to the general law of the land, — that
is, pertaining to the law whereof the courts take cognizance,
— though such things as private statutes, foreign law, and
the like, are necessarily set out in the pleadings, because the
courts do not take judicial cognizance of them.!

§ 53. In one sense, the law is a fact. But it differs from
most other facts in this, that the courts take judicial cogni-
zance of it, while they do not take such cognizance of most
other facts. Yet there are certain other matters of a pub-
lic nature of which they do take judicial cognizance, the
same as of the law. These other facts need not, more than
the law, be pleaded.

§ 54. Carrying in our minds the familiar propositions stat-
ed in the last two sections, we arrive by a direct process at
‘the following results. The pleadings in a criminal case must
embrace a statement of all the facts in the case whereof the
judges do not take judicial cognizance, and they need contain
nothing more. But these must be, in a certain sense, the
primary facts. For example, if it is said that a certain per-
son is guilty of larceny, here is a statement only of a second-
ary fact, produced by a combination of primary facts and pri-
mary law; or, in other words, it is a conclusion of the law
upon the facts. And this is not a fit statement upon which
to put the accused person on his trial for the offence. The
pleader should set out the primary facts, disconnected from
the law; and then the court, applying the law to the facts,
will deduce the legal result.

§ 55. Yet the facts may, if the pleader chooses, be set out
according to their legal import, in distinction from their mere

1 And see 1 Bishop Mar. & Div. § 421 and note, and the accompanying sec-

tions.
[32]
‘CHAP. IV.] INTRODUCTORY VIEW OF CRIMINAL PLEADING. § 56

outward order and appearance; sometimes, indeed, they
must be so set out, or the pleading will be adjudged insuffi-
cient. Thus, what a man does by his agent, he does in point
of law by himself; therefore, if James, acting as the agent of
Samuel, pays to Richard a certain sum of money, the payment
is in point of law a payment from Samuel to Richard ; and, in
a pleading, it may, if the pleader choose, be so alleged, and
the name of James need not even be mentioned? So, if a
legal instrument in writing is to be introduced into a plead-
ing, it may, except where certain special reasons exist to the
contrary, be equally well described by its legal effect as by
its exact words.’ In like manner, where several persons are
together committing a crime in one another’s presence, the act
of one is the act of all; and it may, if the pleader choose, be
so alleged, or of course it may, if he choose, be alleged ac-
cording to the more outward fact. Thus, if an indictment
for a felonious homicide charges that A gave the mortal blow,
and that B and C were present, aiding and abetting, while
the evidence shows that B struck the blow, and that A and
C were present, aiding and abetting ; this is not a material
variance, for the blow is adjudged in law to be the stroke of
every one of them. And as Holt, C. J. said in an old case:
“Tt is to be known that a fact which would make one acces-
sory in felony, in treason, and in trespass makes him a prin-
cipal ; and sure one may lay the matter either way, namely,
making him principal, or laying it special, as it will appear
upon evidence.” 5

§ 56. The judicious pleader, however, having this liberty
of election, will employ a reasonable discretion in its exercise.
Thus, in the case last quoted, Powell, J. added: “I think, in
the principal case, it is more prudent and safe to draw the
indictment upon the special matter; for otherwise it might
be difficult to persuade the lay gents [who are the jurors],

1 And see Rex ». Healey, 1 Moody, 1. * Brister v. The State, 26 Ala. 107.

2 Commonwealth v. Bagley, 7 Pick. And see Crim. Law, I. § 596; Com-
279. See also The State v. Brown, 31 monwealth v. Chapman, 1! Cush. 422;
. Maine, 520. Reg- v. Tyler, 8 Car. & P. 616.

8 United States v. Keen, 1 McLean, © Reg.v. Tracy, 6 Mod. 30, 32.

429,
[33]
§ 59 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

that procuring, inciting, commanding, &c., would make one
a principal.” ! But, though the pleader might be inclined
to follow the advice of Powell in instances like the particular
one here presented, he will, if judicious, more frequently lay
the matter according to its legal aspect.

§ 57. Let us look at some reasons sustaining the latter
proposition. In the first place, the legal way is usually the
short one; and, when an indictment, for instance, is made
short, there are less liable to arise entanglements of variance,
and the like, on the hearing, than when it is made long. It
is also drafted with less manual labor; therefore the com-
bined labor, mental and manual, is likely to be less. In the
next place, if the pleader undertakes to experiment, without
discrimination, by setting forth the facts in all cases accord-
ing to their. outward forms, rather than their legal effect, he
will find that sometimes the court will not sustain him ; for
there are in this direction limits beyond which he cannot
pass. The outer line, indeed, may be here uncertain, and
the legal author cannot well define where it lies.

§ 58. Thus, there are commonly employed in setting out
some crimes, certain technical words, for which, it is be-
lieved, there are no substitutes.2. These will be mentioned
in their proper places, but the following are specimens:
“malice aforethought,’’ and “murder,” in the indictment
for murder ;* “ravish ” in the indictment for rape ;* “ com-
mon scold,” in the indictment for this last offence.®

§ 59, As a general proposition, it is practically safest for
the pleader to follow the beaten track.® Still, as load after
Joad of pedantic rubbish and other useless material, which
obstruct the way, is cast out of the beaten track by judicial
decision or the hand of juridical reason, it is not walking in
this track to depart from it for the sake of walking upon the
old rubbish. There remains much to be cast out yet; and he
who himself casts it out, by rejecting it as useless, may be

1 Reg. v. Tracy, 6 Mod. 30, 32. * Gouglemann v. People, 3 Parker C.
2 Rex v. Stevens, 5 East, 244, C. 15.
® See in the notes to Toomes »v. 5 Rex v. Foxby, 6 Mod. 11.
Etherington, 1 Saund. Wms. Ed. 353 c; ® See ante, § 45.
People v. Urias, 12 Cal. 325.

[34]
CHAP. IV.] INTRODUCTORY VIEW OF CRIMINAL PLEADING. § 61

said still to keep in the beaten track, though he refuses to
walk over what is thus ejected. Let. us bear these thoughts
in our minds when we descend to the minuter discussions.

§ 60. Chitty says, the prosecutor, before submitting his in-
dictment to the grand jury, “ must cause it to be properly
prepared and engrossed on parchment.”?! How the indict-
ment is to be prepared and submitted in the United States, we
shall see in the proper place. But judicial pleadings are not,
with us, upon parchment: paper is used in its stead. They
may be written with the pen, or printed; or partly written
and partly printed. A judicious prosecuting officer will use
printed forms as far as he can ; because they are more easily
read than written ones, and printing promotes accuracy, and
diminishes the chances of escape to the prisoner. In an Ohio
case, the prosecuting officer having written an indictment
against a prisoner for the forgery of a promissory note, dis-
covered that the word promise, in the copy of the instrument,
required the addition of the letter s, making it promises, to
conform to the original; so he added the letter with a pencil;
and, inthis form, the indictment was found a true bill by the
grand jury. The court thereupon held the indictment to be
good. Said the learned judge: “‘ The court might not feel
disposed to tolerate the practice of drawing an entire in-
dictment with a lead pencil, because it is more liable to.be
effaced and obliterated than if drawn with ink; but there is
no statute in Ohio, nor any rule of common law, nor any
principle of ordinary sense, that will avoid an indictment
merely because one letter in the whole indictment is added to
some one word in pencil, and that letter making no differ-
ence, neither in sound, sense, nor effect, in the word to which
it is joined. An indictment is usually written, but it may
be printed ; and is, nevertheless, valid. It is commonly drawn
with black ink; but if written in red, blue, or yellow, who is
bold enough to say, that it is such a departure from usage
that vitiates the indictment ? We apprehend no one.” ?

§ 61. An indictment or other pleading may be more or less

11 Chit. Crim. Law, 316.
2 May v. The State, 14 Ohio, 461, 465, opinion by Wood, C. J.

[35]
§ 62 [BOOK IL.
illegible ; and, in all cases, it is for the court, and not the
jury, to decide what its words are.! Plainly, therefore, the
pleading may be so illegible that the court will, on this
ground, quash or otherwise suppress it. If there is an inter-
lineation in an indictment, it is not for this reason alone to be
quashed ; and, where there is a caret indicating the place at
which the interlineation comes in, the court will take notice
of the caret, and read the indictment accordingly.2 But an
insufficient allegation cannot be helped out by quotation
marks.?

§ 62. Let us conclude this general discussion by observing,
that the rules of criminal pleading are the combined result of
technical nicety, and of common sense. The technicalities
are passing away fast enough before the hand of legislation.
Unhappily, legislation sometimes cuts away the sensible and
better parts, in its attempts to get rid of the merely technical

PLEADING AS RESPECTS THE INDICTMENT.

and useless portions.

1 Commonwealth v. Davis, 11 Gray,
4,8; Commonwealth ». Riggs, 14 Gray,
376.

2 Rex v. Davis, 7 Car. & P. 319.
“Tf the indictment was conveniently
legible, it would not be bad simply be-
cause it contained interlineations ; and,
in the absence of anything appearing
upon the face of a written instrument,
or being shown extrinsically tending to
prove that interlineations were made
subsequently to the execution of the
instrument, it will be presumed they
were made before or at its execution.”
French v. The State, 12 Ind. 670, 671.

8 Commonwealth v. Wright, 1 Cush.
46, 64. Said Forbes, J.: “If these
marks should be held sufficient to sustain
an indictment, they might also be held
sufficient to defeat it, whenever a slight
mistake is made in the use of them;
and the accidental omission to include
a single word of the libel in inverted
commas, or the including within them
of a word which was not in the libel,
would be a fatal variance. It some-
times happens that the change of a single

[36]

It is for the courts so to explain and

comma will give an entirely different
meaning to a sentence; suppose a
pleader to have occasion to set out a
sentence of this description, would the
misplacing or the omission of a com-
ma, thereby leaving the meaning equiv-
ocal, be fatal to the indictment ? ‘ Had
we power to do it, we should doubt the
expediency of introducing a new rule in
pleading, the probable effect of which
would be to throw additional embarrass-
ments in the way of the pleader, and to
increase the chances of escape, by means
of purely clerical mistakes or technical
errors. The practice of arraignments is
to read the indictment to the prisoner,
and then to receive his plea. His knowl-
edge of the charge against him is de-
rived, ordinarily, from hearing the in-
dictment read, and not from the inspec-
tion of it. But these indications of the
meaning of the pleader are addressed
to the eye; they are not perceptible by
the ear; and, if the rule of construc-
tion contended for be correct, this well-
established practice is clearly wrong.”
p. 65.
CHAP. IV.] INTRODUCTORY VIEW OF CRIMINAL PLEADING.  § 62

apply the rules, that the legislators will plainly see which be-
long to the one class, and which to the other. The purpose
of the writer, in arranging the matter comprising the follow-
ing chapters upon ‘the indictment, has been so to separate
things, and conduct the course of the elucidation, as to assist
the reader in making this distinction for himself; without
pausing at each step to say, “ This is technical — this is sen-
sible.’ A rule may indeed be useful, though it is technical.
And, in short, in the words of Lord Mansfield: ‘“ The sub-
stantial rules of pleading are founded in strong sense, and
in the soundest and closest logic; and so appear when well
understood and explained ; though, by being misunderstood
and misapplied, they are often made use of as instruments of
chicane.” }
1 Robinson v. Bayley, 1 Bur, 316, 319.

VOL. I. 4 [87]
§ 65 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

CHAPTER V.

THE COUNTY OR DISTRICT IN WHICH THE INDICTMENT IS TO
BE FOUND.

§ 63. In the volumes on the Criminal Law,1 we had occa-
sion to consider the local jurisdiction of the United States
and the respective States, as to one another, and as to foreign
nations; and the indictability of crimes committed within
one jurisdiction in the tribunals of another, together with
some kindred questions. We are now—assuming the courts
of the particular sovereignty to have authority to proceed in
the case — to inquire in what local division of the country the
proceeding is to be instituted.

§ 64. There can be no doubt, that it is competent for the
governing power of any country to determine within what
locality the perpetrator of a crime, over which the courts
have jurisdiction, shall be tried. Still the common law has
its rules on the subject, and there are in the constitutions of
the United States and of the respective States, some provis-
ions controlling legislation with regard to it.

§ 65. According to the common law doctrine, all crimes
are local. In other words, the prosecution for them can be
carried on only in the county of their commission.? A grand
jury cannot inquire concerning them except within such
county ;® and, if a county is divided, a criminal act, done be-
fore its division in the part which is created a new county,

1 Crim. Law, I. § 69-154. frey, 8 Fairf. 361; The State v. Patter-

2 Coon v. The State, 13 Sm. & M.
246; Sullivant v. The State, 3 Eng.
400; Harker v. The State, 8 Blackf.
540; Rex v. Spiller, Style, 108, 3 Salk.
77; Rex_v. Jones, 6 Car. & P. 187;
Bouche’s case, Cro. Eliz. 200; People
v. Honeyman, 3 Denio, 121; The State
v. Nixon, 18 Vt. 70; The State v. God-

[38]

son, 1 Murph. 443 ; Commonwealth ».
Call, 21 Pick. 509; Rex v. Hicks, 12
Mod. 30, 81; Dawdale’s case, 6 Co.
466; Barns v. Hughs, 1 Lev. 249.

8 4 Bl. Com. 303; 1 Stark. Crim.
Pl. 2d ed. 1; Hughes v. The State, 35
Ala. 351.
CHAP. V.] THE COUNTY OR DISTRICT. § 66

must be. prosecuted in the new. The offence is against the
State ; the trial, in the new county.1

§ 66. Let us remember, that the foregoing is merely the
common law rule, which the legislature may alter unless pre-
vented by some constitutional provision. The Massachusetts
bill of rights declares, that, ‘‘in criminal prosecutions, the
verification of facts in the vicinity where they happen is one
of the greatest securities of the life, liberty, and property of

1 The State v. Jones, 3 Halst. 307,
4 Halst. 357, 372; The State v. Jack-
son, 39 Maine, 291. And see Crim.
Law, I. § 212. After Maine was sepa-
rated from Massachusetts and formed
into a new State, it was held, in the
former, that, if an indictment for an of-
fence against the statutes of Massachu-
setts, committed before the separation,
did not charge the offence to have been
committed against the peace of Massa-
chusetts, and its laws, the omission
would be fatal. ‘Said the court:
‘‘ Whoever commits an offence, indict-
able either by statute or at common
law, is guilty of a breach of the peace
of that government which exercises
jurisdiction, for the time being, over
the place where such offence is com-
mitted.” Damon’s case, 6 Greenl. 148,
152. In North Carolina, in 1842, a
part of the county of Burke, and a
part of the county of Rutherford, were
constituted a new county by the name
of McDowell ; and, afterward, jurisdic-
tion of all criminal offences committed
in the part of McDowell which was
taken from Burke was given to the
Superior Court of Burke. Thereupon,
it was held, that an indictment for a
criminal offence, alleged in the indict-
ment to have been committed in Burke,
could not be supported by evidence of
acts done in McDowell, after the estab-
lishment of the latter county. The
State v. Fish, 4 Ire. 219. According to
an Arkansas case, if a new county is
formed of territory formerly included
in an old county, an indictment for an

offence antecedently committed within
the territory embraced in the new coun-
ty may be maintained in the new, under
the usual allegation setting out the of-
fence as committed in the new. Mc-
Elroy v. The State, 13 Ark. 708. But on
the latter point the exact contrary was
held, by the New Jersey court, in the
above-cited case of The State v. Jones.
Said the judge: ‘It is seen, that, at the
time mentioned, there was no such place
as that at which the offence is alleged to
have been committed.” In harmony
with this New Jersey case is one in
Georgia, where it was held, that the
trial should indeed be in the new county,
but the offence should be — or might be
— charged as perpetrated in the old
county. The method adopted, which
was held to be right, was to charge,
that, as stated by McDonald, J., “the
offence was committed in that portion
of the county of Baker which is now
the county of Dougherty.” Jordan v.
The State, 22 Ga. 545, 555. In Ar-
kansas, a statute declared the citizens
living on the east fork of Illinois Bayou,
in Van Buren County, to be citizens of
the county of Pope, with the rights and
privileges thereof; and this was held
not to effect the transfer of any part of
the territory of Van Buren County to
Pope County ; therefore, upon the trial
of an indictment, alleging the offence
to have been committed in Pope County,
proof that it was committed on the east
fork of Illinois Bayou, in Van Buren
County, would not sustain the allega-
tion. Holmes v. The State, 20 Ark. 168.

[39]
§ 67 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

the citizen’ ;1 and this was held not to be violated by a stat-
ute enacting, that, in cases of homicide, the trial may be in
the county where the death took place, though the blow or
other cause of death was in another county.? There is a like
constitutional guaranty in Tennessee ; and the court there
has decided, that defendants may waive their privilege under
it; consequently, that it does not make void a statute author-
izing a change of venue; that is, a removal of the indict-
ment into another county for trial, on motion of the pris-
oner.®

§ 67. There is a difference between a thing and the evi-
dence of the thing. Consequently witnesses may come from
another county than the one in which the offence is alleged
to have been committed, and testify to facts occurring in the
other county, when such facts tend to establish the offence as
charged.* Overlooking this principle, the courts are said to
have anciently doubted, whether, if a blow were inflicted in
one county, and death from the blow followed in another, the
offence could be prosecuted in either. “This difficulty,” says
Starkie,° “was frequently avoided by carrying the dead body
back into the county where the blow was struck, and there
the jury might inquire both of the stroke and the death.”
But the true view appears to be, that the blow is murder or
not according as it produces death within a year and a day
or not ;7 and therefore in all cases an indictment lies in the

1 Mass. Const. part. 1, art. 13.

2 Commonwealth v. Parker, 2 Pick.
550. And see Tippins v. The State,
14 Ga. 422; Steerman v. The State, 10
Misso. 503; Crim. Law, I. § 82, 83;
post, § 67.

8 Dula v. The State, 8 Yerg. 511.
See, as to the change of venue, the
chapter after the next.

4 See Respublica v. Malin, 1 Dall.
33; The State v. Wisdom, 8 Port. 511;
United States v. Britton, 2 Mason, 464;
Commonwealth v. Parmenter, 5 Pick.
279; Bland v. People, 3 Scam. 364;
Reg. v. Bleasdale, 2 Car. & K. 765;
1 Stark. Crim. Pl. 2d ed. 21 - 23.

[40]

5 “ Though the more common opin-
ion was, that he might be indicted where
the stroke was given.” 1 Hale P. C.
426; 1 East P. C. 361, and see p. 363,
365 et seq.; 3 Inst. 48; 1 Hawk. P. C.
6th ed. c. 81, § 13.

® 1 Stark. Crim. Pl. 2d ed. 3, 4,
note.

7 Commonwealth v. Roby, 12 Pick.
496, 505, 506; Burns v. People, 1 Par-
ker C. C. 182, 185; People v. Gill, 6
Cal. 637, “The giving of the blows
which caused the death constitutes the
felony.” Patteson, J., in Rex v. Har-
grave, 5 Car. & P.170; Crim. Law, I.
§ 83,
CHAP. V.] THE COUNTY OR DISTRICT. § 68

county where the blow was given.! If the death takes place
out of the country, the question possibly involves another
principle, conducting to a different result, but probably not ;
and therefore we may doubt the soundness of a Virginia de-
cision holding, that, where a man is stabbed in one State and
dies of his wounds in another, the offender cannot be held in
the former State for the murder.?- And we may also hesitate
to concur with what has sometimes been held in the United
States’ courts, that, where the stroke is on the ocean, and the
party injured expires on land, there is no “ murder commit-
ted on the high seas,”’ within the act of congress.2 Some of
these matters were discussed in the author’s work on the
Criminal Law.

§ 68. If, however, the death is within the State, the Eng-
lish statute, 2 & 3 Edw. 6, c. 24, § 2, which is common law
in this country,® applies. It provides, “‘ that, where any per-
son or persons hereafter shall be feloniously stricken or pois-
oned in one county, and die of the same stroke or poisoning
in another county, that then an indictment thereof, founden
by jurors of the county where the death shall happen, &e.,

1 Riley 7. The State, 9 Humph. 646 ;
post, § 68; Rex v. Burdett, 4 B. & Ald.
95, 173.

2 Commonwealth v. Linton, 2 Va.
Cas. 205. And see The State v. Dunk-
ley, 3 Ire. 116.

8 United States v. Magill, 1 Wash.
C. C. 463, 4 Dall. 426; United States
v. Armstrong, 2 Curt. C. C. 446. There
is apparent common law authority for
the doctrine thus disapproved of in our
text. Lord Coke says: “If a man be
stricken upon the high sea, and dieth of
the same stroke upon the land, this can-
not be inquired of by the common law;
because no visne can come from the place
where the stroke was given (though it
were within the sea pertaining to the
realm of England, and within the liege-
ance of the king), because it is not with-
in any of the counties of the realm.
Neither can the admiral hear and deter-
mine this murder ; because, though the

4*

stroke was within his jurisdiction, yet
the death was infra corpus comitatus,
whereof he cannot inquire.: neither is it
within the statute of 28 Hen. 8, because
the murder was not committed on the
sea. But, by the act of 13 Rich. 2, the
constable and marshal may hear and
determine the same. And before the
making of the statute of 2 Edw. 6, if a
man had been feloniously stricken or
poisoned in one county, and after had
died in another county, no sufficient in-
dictment could thereof have been taken
in either of the said counties ; because,
by the law of the realm, the jurors of
one county could not inquire of that
which was done in any other county.” 3
Inst. 48. See Rex v. Farrel, 1 W. BI.
459; Riggs v. The State, 26 Missis. 51 ;
Steele v. Thacher, Ware, 91.

4 Crim. Law, I. § 80-84 and notes.

5 The State v. Moore, 6 Fost. N. H.
448 ; Riley v. The State, 9 Humph. 646.

[41]
§ 69 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

shall be as good and effectual in the law as if the stroke or
poisoning had been committed and done in the same county
where the party shall die, or where such indictment shall be
so founden.”! This statute, moreover, has been substantially
re-enacted in some of the States ;? as we have seen? it has
been in Massachusetts. In Tennessee, this English provision
has given place to the rule of the earlier common law, estab-
lished by a statute declaring, that, “in all criminal cases, the
trial shall be had in the county in which the offence may have
been committed.” The consequence of which is, that the pro-
ceedings may and must be carried on where the blow was
given, though the death took place in another county.* And,
in construing the various statutes on this subject, regard
should be had to the rule of construction, that a new provis-
ion, without negative words, does not abrogate any prior law
to which it is not repugnant,® but that both may stand to-
gether,—a rule which seems to have been sometimes over-
looked in these cases.®

§ 69. Another thing is, that the locality of the crime is not
necessarily in law, or always in fact, in the same county
with the personal presence of him who commits it. We have
seen ’ indeed, that, to constitute a crime, an evil intent must
combine with the evil act; but, though we usually contem-
plate the intent as existing in the mind and the mind as in-
habiting the body, yet legally, instead of this, the intent fol-
lows and dwells with the act. Thus, if a man stands upon

1 2 Hawk. P. C. Curw. Ed. p. 302;
Bauson v. Offley, 3 Salk. 39; 1 Stark.
Crim. Pl. 2d ed. 5, 6. Statutes of this
class are to be liberally construed.
Crim. Law, I. § 228. This seems to
have practically abolished the common
law rule for those cases to which it is
applicable; but query whether it really
does so. Crim. Law, I. § 197-201.

2 Stoughton v. The State, 13 Sm, &
M. 255; The State ¥. Toomer, 1 Cheves,
106 ; Nash v. The State, 2 Greene, Iowa,
286. In some of the States the pro-
vision is, that the indictment may be in
either county.

[42]

3 Ante, § 66.

* Riley v. The State, 9 Humph. 646.

5 Crim. Law, I. § 197 et seq. “In
general,” says Starkie, “when a statute
creating a new felony directs that the
offender may be tried in the county in
which he is apprehended, but contains
no negative words, he may be tried in
that county in which the offence was
committed.” 1 Stark. Crim. Pl. 2d ed.
12, citing 1 Hale P. C. 694; 3 Inst.
87.

§ Sce a previous note to this sec-
tion.

7 Crim. Law, I. § 365, 370,
CHAP. V.] THE COUNTY OR DISTRICT. § 70

shore within a county, and by discharging firearms kills
another upon the high seas without the county, he is triable
for the murder by the admiralty, which has jurisdiction over
the locality where the ball took effect, and not over the place
where he stood to perpetrate the crime.1 And one who
poisons another by the help of an innocent agent? is guilty
of the murder in the county where the poisoning took place.’
So a person who puts forth a libel, or a threatening letter,
or a letter enclosing a forged instrument intended to defraud
the one to whom it is addressed,® or a letter making a false
pretence to a person who thereupon parts with his goods in
the county where he receives it,’ or soliciting one to commit
a crime,’ may be indicted in the county to which it is sent,
though he does not go there himself. Likewise a man who
entices away a slave from his master is guilty, within the
statutes on this subject, in the county in which the slave quits
service with intent to escape from bondage as a slave, whether
the enticer were within the county near enough to aid him
or not.2 And one who criminally neglects to do any act, as
to surrender to a fiat in bankruptcy,” or repair a highway," is
answerable for the neglect in the county where the act ought
to have been done, and in no other.”

§ 70. Sometimes a wrongful thing is done partly in one

1 Rex v. Coombes, 1 Leach, 4th ed. 8 Griffin v. The State, 26 Ga. 493.

388; 1 East P. C. 367; 1 Stark. Crim.
Pl, 2d ed. 22, 23.

2 Crim. Law, I. § 387, 599.

8 Anonymous, J. Kel. 53; 1 Stark.
Crim. Pl. 2d ed. 23.

* Commonwealth v. Blanding, 3 Pick.
304.

5 People v. Griffin, 2 Barb. 427 ; Rex
v. Girdwood, 1 Leach, 4th ed. 142; 2
East P. C. 1120; Esser’s case, 2 Hast
P. C, 1125.

6 People v. Rathbun, 21 Wend. 509.

7 Reg. v. Jones, 1 Den. C. C. 551,
Temp. & M. 270, 1 Eng. L. & Eq. 533.
And see Adams v. People, 1 Comst.
178, 3 Denio, 190; Reg. v. Leech,
Dears. 642, 7 Cox C. C, 100, 36 Eng.
L. & Eq. 589.

9 Mooney »v. The State, 8 Ala. 328,
to which the earlier case of The State
v. Wisdom, 8 Port. 511, seems to be
opposed.

1 Reg. v. Milner, 2 Car. & K. 310.

11 Rex ». Clifton, 5 T. R. 498, 502, in
which it was held, overruling Rex »v.
Weston, 4 Bur. 2507, that, if a parish,
bound to repair a highway, is situated
in two counties, an indictment for the
non-repair of the part of the way lying
in the one county, against the inhabi-
tants only of the part of the parish within
that county, is bad: it should be against
the whole parish. And see Rex ov.
Great Broughton, 5 Bur. 2700.

2 Archb. New Crim. Proced. 74.

[43]
§ 71 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

county, and partly in another ; and the common law rule here
is, that, to sustain an indictment, so much must be shown to
have occurred in the county where it is laid, as makes a com-
plete offence. A case may therefere be so situated that pro-
ceedings cannot be carried on in either county... Thus, under
the English statute, 3 Hen. 7, c. 2, against the forcible abduc-
tion and marriage of an heiress, two acts were necessary to
constitute the felony ; first, a forcible abduction ; secondly, a
marriage ; and so, if the heiress were taken by force from one
county, and the constraint ceased before she reached a second
county in which she was married, there could be no indict-
ment in either; though, if the constraint continued, the of-
fence would be complete in the latter county.? And, “ where
clergy is ousted on circumstances of aggravation, such cir-
cumstances must all be proved to have happened within the
county in which the offender is tried.” 8

§ 71. Some writers have fallen into the mistake, that the
doctrine of the last section applies in its full extent to felonies
only, not so strictly to misdemeanors ;4 but, on principle, there
can be no difference, and the authorities show rione in the
facts of the law.5 Their error has arisen from a misappre-
hension of a correct proposition ; namely, that, since every
felony includes a misprision of felony, which is a misde-
meanor,® if a felonious act has been so committed, partly
within each of several counties, as, though complete in itself,
not to be complete in any one county, still a prosecution for
the misprision of it may be carried on in either.’ Now we
have seen,® that a misprision is a neglect, either to prevent
the commission of a felony or treason in the process of being
committed, or to disclose it to the authorities after it is done ;
and so, when a man commits a felony, he commits also a full
misprision of it in every county in which he does any part

1 Danby’s case, 1 Hale P. C. 651, 4 1 Stark. Crim. Pl. 2d ed. 26; 1
652; 1 Stark. Crim. Pl. 2ded. 2; Rex Chit. Crim. Law, 196.
v. Burdett, 4 B. & Ald. 95, 172. 5 Rex v. Burdett, 4 B. & Ald. 95,
21 Stark. Crim. Pl. 2d ed. 2; 1 136, cited 5 D. & R. 616.
East P. C. 453; Fulwood’s case, Cro. 6 Crim. Law, I. § 652.
Car. 488; Crim. Law, II. § 1 et seq. 71 Hale P. C. 652, 653.
3 2 Hast P. C. 773. 8 Crim. Law, I. § 652, 655.

[44]
CHAP. V.] THE COUNTY OR DISTRICT. § 78

of the felony, or omits to make disclosure of what he has
done.

§ 72. But if a statute creates an offence which, in terms,
- must consist of acts both within and without the State, an
indictment under it will lie in that county, within the State,
in which what we may call the domestic part of the trans-
action is performed ;! for otherwise the statute is rendered
wholly inoperative.? Obviously, too, a legislative provision,
bringing into being a new offence entirely within the State,
may be in such words as to require the application of the
same principle ; and thus, by a necessary implication, to
authorize proceedings in a county in which a part only of the
guilt was incurred. In England, at present, an act of Par-
liament provides expressly, ‘ that, where any felony or misde-
meanor shall be commited on the boundary or boundaries of
two or more counties, or within the distance of five hundred
yards of any such boundary or boundaries, or shall be begun
in one county and completed in another, every such felony
or misdemeanor may be dealt with, inquired of, tried, deter-
mined, and punished in any of the said counties, in the same
manner as if it had been actually and wholly committed
therein.” * And there are similar provisions in some of our
States.

§ 73. The doctrine we are considering, namely, that a
complete crime must have been committed in the county in
which the indictment is laid, in order to sustain the indict-
ment, demands only that so much should have been there
done as is strictly necessary ® to the crime; while those things
which may be viewed as parcel of it or not at the election ® of
the prosecutor, or which may be contemplated merely as evi-
dence,’ may equally well have been performed in any other
locality. Thus, to state a simple case, a person who takes

‘11° Stark. Crim. Pl. 2d ed. 9; 1 4 7 Geo. 4, ¢. 64, § 12; Reg. v. Leech,
Hale P. C. 706; 3 Inst. 80. Dears. 642, 36 Eng. L. & Eq. 589.

2 Crim. Law, I. § 186.* 5 Crim. Law, I. § 597, 598.

8 And see Pope v. Davis, 2 Taunt. 6 Crim. Law, I. § 804.
252 ;-Scott v. Brest, 2 T. R. 238, 241; 7 Ante, § 67.
Scurry v. Freeman, 2 B. & P. 381; 8 And see Skiff v. People, 2 Parker
The State v. Hudson County, 3 Zab. 206. C. C. 139, 147. 145)
§ 74 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

a false impression of a warehouse key, for the purpose of hay-
ing a false key made, is indictable in the county where the
warehouse and key are, though the false key was made in
another county.! And to proceed to facts apparently more
complicated, when one solicits another to commit an offence,
the solicitation may be deemed to be the beginning of the of-
fence of the solicitor; and, if the person solicited declines, or
undertakes and fails, the solicitor is, as we have seen,” indict-
able for the attempt. Here evidently the indictment must be
in the county where the soliciting is performed ; or at least it
must be, if the other makes no attempt, though the offence
contemplated were to be accomplished in another county.?
But, suppose the person solicited proceeds to the other coun-
ty, and there executes the thing ; the person soliciting may
then, if it were a misdemeanor, be held as a joint principal,
guilty not merely of the attempt, but of the substantive
crime ; the solicitation may be shown, not as constituting a
part of the criminal act, but as evidence of the intent which
travelled with the act into the new locality, and dwelt with
it there, when done ;* and thus that becomes an offence in
the second county, which, in another aspect, was a less offence
in the first. Hence the rule as to misdemeanors is, that all
who participate in them, whether present or absent, are indict-
able in the county in which they are committed.6 And there-.
fore, says Starkie®: ‘If A procure B to publish a libel, A is
liable to be indicted’ in every county in which B publishes
that libel. So if A abroad procure false vouchers to be de-
livered in Middlesex, which he has fabricated for the purpose
of fraud, he is indictable in Middlesex.’ 9

§ 74. According to ordinary legal reasoning, the procurer
of a felony, as accessory before the fact, should, like the pro-

1 Griffin v. The State, 26 Ga. 493. 469, 478; Rex v. Brisac, 4 East,
2 Crim. Law, I. § 689. 164.
8 See Reg. v. Danicll, 6 Mod. 99, § 1 Stark. Crim. Pl. 2d ed. 28.
101. And see Griffin v. The State, 26 T Rex v. Jghnson, 7 East, 65.
Ga. 498. 5 See also Rex v. Girdwood, 1 Leach,
* Ante, § 69. 4th ed. 142, 2 East P. C. 1120.
51 Stark. Crim. Pl. 2d ed. 28; ® Rex v. Brisac, 4 East, 164. And
Commonwealth v. Gillespie, 7 S.& R. see Crim. Law, I. § 80.

[46]
CHAP. V.] THE COUNTY OR DISTRICT. § 74

curer of a misdemeanor,! be indicted in the same locality
with the immediate actor ; for he, too, should be deemed a
principal. But we have seen,? that, owing probably to the
blunder of some early judge, he has become in the common
_law punishable rather as the inciter to the act than as the doer
of it; and so perhaps he ought to be indictable in the same
manner, as to locality, with him who incites to a misdemean-
or when the latter is not performed, namely, in the county
where the inciting is done. But this question is left in doubt
by the old authorities,* and is doubtful also on principle.
Often, indeed, it is difficult to say on principle, when one
error, well established, should lead to the establishment of a
second error. To remove this embarrassment, the statute 2
& 3 Edw. 6, c. 24, which we have seen® to be common law
in this country, provides, in § 4, “ that, where any murder or
felony hereafter shall be committed and done in one county,
and another person or more shall be accessory or accessories
in any manner of wise to any such murder or felony in any
other county, that then an indictment found or taken against
such accessory and accessories upon the circumstance of such
matter before the justices of the peace or other justices or
commissioners to inquire of feloniesin the county where such
offences of accessory or accessories in any manner of wise
shall be committed or done, shall be as good and effectual in
the law as if the said principal offence had been committed
or done within the same county where the same indictment
against such accessory shall be found.”® This statute ex-
tends also, we perceive, to the accessory after the fact; and
clearly, as to him, the rule it prescribes is the same which is
deducible from the ordinary doctrines of the common law.’
But, in respect to such accessory after, we should observe, as
the doctrine of the English courts, that, where the principal

1 Ante, § 73. 5 Ante, § 68.
2 Crim. Law, I. § 616, 624, 627. 8 2 Hawk. P. C. Curw. Tid. p. 455,
8 Ante, § 73. § 50; 1 Stark. Crim. Pl. 2d ed. 5-7;

4 9 Hawk P. C. Curw. Ed. p.454and The State v. Moore, 6 Fost. N. H.
note 2. And see Rex v. Easterby, 2 448.
‘Leach, 4th ed. 947, Russ. & Ry. 37; 7 Crim. Law, I. § 631.
Admiralty case, 13 Co. 51.
[47]
§ 75 PLEADING AS RESPECTS THE INDICTMENT. [BOOK U.

offence is on the high seas, within the admiralty, and beyond
the common law jurisdiction, the crime of receiving the
principal offender on land, and within the body of a coun-
ty, cannot be taken cognizance of by the common law tri-
bunals.?

§ 75. When we apply the foregoing doctrines to the actual
facts of crime, we see, that often the indictment may be main-
tained in any one of several different counties. A frequent
illustration of this proposition is witnessed in cases of larceny.
For although, to constitute larceny, there must be a taking
and a carrying away of the property by trespass,” and the in-
tent to steal and the trespass must concur in point of time ;8
still, since one wrong neither justifies nor absorbs into itself
another wrong, the legal possession as well as ownership con-
tinues in the owner, and every fresh removal is a fresh tres-
pass ; so that the thief can be indicted for a complete larceny,
either in the county where he first took the goods, or in any.
other into which, the intent to steal continuing, he carries
them. And it is immaterial whether he takes them to the
other county immediately, or a long time after the original
taking ;° though such transfer must be felonious, or there
must be some felonious trespass in the new locality, and not
merely such as occurs when the prisoner, having the goods
about him, goes there with an officer who has arrested him

1 Admiralty case, 13 Co. 51. The
reason assigned is, “that the common

Harring. Del. 538 ; Commonwealth v.
Rand, 7 Met. 475; Commonwealth v.

law cannot take cognizance of the origi-
nal offence, because that is done out
of the jurisdiction of the common law ;
and, by consequence, where the com-
mon law cannot punish the principal,
the same shall not punish any one as
accessory to such principal.” p. 53.

2 Crim. Law, II. § 808.

8 Crim. Law, IL. § 810.

£ Rex v. Thompson, 2 Russ. Crimes,
Grea, Ed. 116; The State v. Douglas,
17 Maine, 193; Tippins v. The State,
14 Ga. 422; Anonymous, 1 Crawf. &
Dix C. C. 192; Crow v. The State, 18
Ala. 541; Commonwealth v. Cousins,
2 Leigh, 708; The State ». Whealey, 2

[48]

Simpson, 9 Met. 138; The State v.
Bryant, 9 Rich. 113; People v. Smith,
4 Parker C. C. 255. On this principle
it has been held, that if, between the
original theft and the finding of the in-
dictment, the old statute relating to
larceny has been superseded by a new
one, the thief, who retains possession of
the goods, may be proceded against un-
der the new statute. The State v. Som-
erville, 21 Maine, 14. The doctrine of
the text does not apply to slave stealing
in North Carolina. The State v. Groves,
Busbee, 191.
5 Rex v. Parkin, 1 Moody, 45.
CHAP. V.] THE COUNTY OR DISTRICT. §76
for the theft.1. But while a man may not, as thus seen, de-
fend himself against a criminal charge by setting up his own
crime in the same thing, he may, by setting up another’s ;
therefore, if, with felonious intent, he receives and carries
away goods he knows another to have stolen, he is not, in any
county, indictable for the larceny of them. He is, however,
an accessory after the fact, or a receiver of stolen goods, ac-
cording to the peculiar statute law of the State.?

§ 76. From these views it follows, that, if the larceny in
the first county is a compound one, as, for example, if it is
committed in the course of a robbery, the conviction in the
second county can be only for the simple larceny, not includ-
ing its aggravations; because the aggravations took place
only in the first county. And on the same principle, an in-
dictment for stealing a “ brass furnace,” in a particular coun-
ty, is not supported by proof that the prisoners stole such an
article in another county, there broke it into fragments, and
then took the fragments to the county where the offence is
laid ; because the thing stolen in the latter county was cer-
tain pieces of brass, not correctly described by the words brass
furnace. Likewise it has been ruled, that, where four per-
sons commit a joint larceny in one county, and there divide
the goods, and then bring them, in separate parcels, to anoth-
er county, — they cannot, in the latter, be held jointly, but
each is guilty in the latter of a several larceny as to his sepa-
rate parcel ;° while, on the other hand, if they commit in the

1 Rex v. Simmonds, 1 Moody, 408.

* Rex v. King, Russ. & Ry. 332;
Crim. Law, I. § 638, 639.

5 Haskins v. People, 16 N. Y. 344,
348; 2 Russ. Crimes, Grea. Ed. 118;
Rex v. Thomas, 2 East P. C. 605, 2
Leach, 4th ed. 634; 1 Hale P. C. 507,
508, 536; 2 Ib. 163. And see Rex v.
Millar, 7 Car. & P. 665; The State v.
Groves, Busbee, 191.

* Rex v. Halloway, 1 Car. & P. 127.
And see Rex v. McAleece, 1 Crawf. &
Dix C. C. 154; Anonymous, 1 Crawf.
& Dix C. C. 192; Rex v. Edwards,
Russ. & Ry. 497. Where the indict-

VOL. I. 5

ment was for stealing “two turkeys,”
and the proof showed, that they were
killed before being taken into the sec-
ond county, the charge was held not to
be sustained ; because, the court said,
the words “two turkeys” implied live
ones, and the indictment “ought to
have been for stealing two dead tur-
keys.” Rex v. Halloway, 1 Car. & P.
128.

5 Rex v. Barnett, 2 Russ. Crimes,
Grea. Ed. 117. See Rex v. Dann, 1
Moody, 424; Rex v. Smith, 1 Moody,
289.

[49]
§ 77 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

latter county a sufficient joint trespass, with intent to steal,
whether the goods were brought to it severally or jointly, they
may be held jointly! Of course it is not material, in the
application of these principles, whether the larceny is one by
statute or at the common law.®

§ 77. Moreover, it has been held, —a doctrine not firmly
established, though sufficiently so, — that a man who deposits
in the post-office a letter, provoking a challenge to fight a
duel,‘ or containing a libel ® or a forgery ® or an offer to bribe,”
is indictable in the county in which he deposits it ;* while, as
we have seen,® he is also liable in the county to which it is
sent. The principle underlying the doctrine is, that the de-
posit of the letter is a sufficient publication to constitute an
offence, either as a substantive crime or as an attempt. So,
under various circumstances, the act of embezzlement may
be deemed to have been committed in any one of several dif-
ferent counties, at the election of the prosecuting power.”
And, though the gist of conspiracy is the unlawful combina-
tion,” so that the offence is cognizable only in some county
where such mental concord took place; yet, as in point of
law the conspirators renew the conspiracy with every act done
by any one of them in carrying out the plan, they may be in-

1 Rex v. County, 2 Russ. Crimes,
Grea. Ed. 118; Commonwealth v. De-

6 Perkin’s case, 2 Lewin, 150.
7 United States v. Worrall, 2 Dall.

witt, 10 Mass. 154. See Rex v. Mc-
Donagh, Car. Crim. Law, 3d ed. 24.

2 Crim. Law, I. § 186.

8 Commonwealth v. Simpson, 9 Met.
188; Commonwealth v. Rand, 7 Met.
475; Crow v. The State, 18 Ala. 541.
And see The State v. Whaley, 2 Har-
ring. Del. 538; Rex v. Thomas, 2 Hast
P. C. 605, 2 Leach, 4th ed. 634. Rex
v. Millar, 7 Car. & P. 665, may well be
put as having turned on a question of
evidence; and whether the reporter is
right in his note, query.

4 Rex v. Williams, 2 Camp. 506.
And see Rex vo. Burdett, 4 B. & Ald.
95, 127.

5 Rex v. Burdett, 3 B. & Ald. 717, 4
B. & Ald. 95.

[50]

384, 388.

8 And see Rex v. Johnson, 7 East,
65, 3 Smith, 94; Rex v. Watson, 1
Camp. 215; Rex v. Williams, 2 Camp.
506.

9 Ante, § 69.

1 And see Crim. Law, I. § 865, 660,
665.

1 Rex v. Taylor, 2 Leach, 4th ed.
974, Russ. & Ry. 63, 3 B. & P. 596;
Rex v. Hobson, 1 ast P. C. Add. xxiv.,
2 Leach, 4th ed. 974; Reg. v, Murdock,
8 Eng. L. & Eq. 577; 1 Stark. Crim.
Pl. 2d ed. 25, 26.

12 Crim. Law, I. § 519, 1024.

18 Reg. v. Best, 1 Salk. 174.
CHAP. V.]

THE COUNTY OR DISTRICT. § 79

dicted either in the county in which they first entered into
the unlawful combination, or in any other county in which,
in pursuance of it, any overt act is performed.

§ 78. We have thus far been examining the subject of the
present chapter in the light of the common law as it prevails
in our States. Besides the English statute of 2 & 3 Edw. 6, c.
24, which we have seen is common law here,? there are other
acts of Parliament sufficiently early in date to fall within the
same consideration.’ But they are all either of a nature local
to the mother country, or otherwise of no practical common
law importance with us.4

§ 79. By statute in New York, “when any offence shall
have been committed within this State, on board of any ves-
sel navigating any river, lake, or canal, an indictment for the
same may be found in any county through which, or any part
of which, such vessel may be navigated in the course of the
same voyage or trip, or in the county where such voyage or
trip shall terminate.” ° There are similar provisions in other
States. In Missouri, this kind of enactment has been held
to be constitutional.’ A like statute exists also in England.®
And there are, relating to this general subject, some other Eng-
lish and American enactments not necessary to be here men-
tioned.

1 Commonwealth ». Gillespie, 7 S. &
R. 469, 478; People v. Mather, 4 Wend.
229, 259; Rex v. Brisac, 4 East, 164;
Rex v. Bowers, cited 4 Kast, 171.

2 Ante, § 68, 74. ;

3 See 1 Stark. Crim. Pl. 2d ed. 9-20.

4 The statute 1 Jac. 1, ¢. 11, against
polygamy, provided, in § 1, that the
offender against the statute might be
tried in any county where he should be
apprehended. 1 Stark. Crim. Pl. 2d
ed. 11. But I presume this enactment
to be superseded in all the States by
more recent legislation. Under it, the
English courts decided, that, where the
person is taken into custody on a charge

of larceny, he may be detained for po-
lygamy, and such detaining will be an
apprehension authorizing an indictment
in the same court for the polygamy.
Rex v. Gordon, Russ. & Ry. 48.

5 As to the construction of which,
see People v. Hulse, 3 Hill, N. Y. 309;
Manley v. People, 3 Seld. 295.

6 Nash v. The State, 2 Greene, Iowa,
286; Steerman v. The State, 10 Misso.
503.

7 Steerman v. The State, 10 Misso.
503.

8 Stat. 7 Geo. 4, vc. 64, § 13; Reg. v.
Sharpe, Dears. 415, 24 LawJ. n. 8. M.
C. 40, 29 Eng. L. & Eq. 532.

[51]
§ 81 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

As to Crimes against the United States.

§ 80. Hitherto, in this chapter, we have been contemplat-
ing the subject as it exists in the respective States, with regard
to crimes committed against the government of the State.
The constitution of the United States provides, in the body of
the instrument, that “the trial of all crimes, except in cases
of impeachment, shall be by jury; and such trial shall be
held in the State where the said crimes shall have been com-
mitted; but, when not committed within any State, the trial
shall be at such place or places as the congress may by law
have directed.”! And an amendment further declares: “In
all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed,
which district shall have been previously ascertained by
law.” 2

§ 81. The principal acts of congress relating to the matter
provide, that, ‘in cases punishable with death, the trial shall
be had in the county where the offence was committed ; or,
where that cannot be done without great,inconvenience, twelve
petit jurors at least shall be summoned from thence ” ;? and
that ‘the trial of all offences which shall be committed upon
the high seas or elsewhere, out of the limits of any State or
district, shall be in the district where the offender is appre-
hended, or into which he may be first brought.””* The for-
mer of these provisions is earlier in date than the constitutional
amendment recited in the last section ; by which, however,
it is not repealed ;° while yet it may be modified in some slight
degree by subsequent legislation.6 The courts deem them-
selves to comply with the provision when they summon the

1 Const. U. S. art. 3, § 2, cl. 3.

2 Const. U. S. Amendm. art. 6;
United States v. Britton, 2 Mason, 464.

3 1U.S. Stats. at Large, p. 88, act of
Sept. 24, 1789, c. 20, § 29; United
States v. Burr, 1 Burr’s Trial, Phil.
Ed. 352; United States ». Cornell, 2
Mason, 91, 96; United States v. Wil-
son, Bald. 78, 117.

[52]

* 4 U.S. Stats. at Large, p. 118, act
of 1825, c. 65, § 14. And see The
Octavia, 1 Gallis. 488; United States
v. Thompson, 1 Sumner, 168.

5 United States v. Burr, 1 Burr’s
Trial, Phil. Ed. 352, 353.

® United States v. Cornell, 2 Mason,
91, 96.
CHAP. V.] THE COUNTY OR DISTRICT. § 82

jurors mentioned from the county in which the offence was
committed, without resorting to the difficult and doubtful
expedient of ordering a special term to be held in that
county.

§ 82. Another adjudged point is, that, in all cases of crime
committed against the United States, within the local limits
of a State, the offender’s trial must be in the State and judi-
cial district of its commission ; the provision respecting the
trial being had in the judicial district into which the offender
is first brought, not being applicable in such circumstances.?
By being brought within the district is meant, brought into
custody, and not merely conveyed thither by the ship in
which the offender first arrives.®

1 See the several cases before cited to 484; United States v. Bird, Sprague,
this section. 299, e

2 United States v. Jackalow, 1 Black, 8 United States v. Bird, supra.
5* [53]
§ 85 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

CHAPTER VI.

HOW THE PLACE OF THE OFFENCE IS TO BE SET OUT IN THE
INDICTMENT, AND HOW PROVED.

§ 83. Tue title of this chapter illustrates what has been
already said} concerning the arrangement of the matter of
these volumes; namely, that the respective subjects are
brought together, when practical convenience requires, into
clusters, by means whereof those things which are best seen
in conjunction are presented thus upon the page. According
to the general order of this volume, we do not treat of the
law of evidence in criminal cases until the law relating to the
pleading is disposed of; yet, in the particular instance, we
anticipate in the present chapter so much of what properly
belongs to a subsequent division as is requisite to exhibit
to the reader those few points which pertain to the establish-
ment, in proof, of the allegations which it is the principal
purpose of the chapter to consider.

§ 84. The subject of this chapter, as respects the pleading,
lies in some apparent confusion in the books; therefore, that
we may properly understand it, we shall be obliged to descend,
a little more than we sometimes do, into the principles which
underlie the adjudged law; and ascend, a little more, the
stream of history. Let us direct our attention to the last,
first.

§ 85. There can be no proper course of judicial pleading,
except such as flows in harmony with the course of the trial.
Now, in the early times of our law, the latter was entirely
different, in some respects, from what it is in modern times;
the consequence being, that, in modern times, the former
should depart in a corresponding way from its earlier course.
Witness, for example, what is said in the following extracts

1 Ante, § 39,

[54]
CHAP. VI.] ALLEGATION AND PROOF OF PLACE. § 85

from Reeves’s History of the English Law, where he is writing
of the times of Edward I.: “ When the oath was put [to
the second inquest in a criminal cause ; or, as it was after-
ward called, the petit jury], they were to swear, one after
another, that they would speak the truth of what should be
demanded of them on the part of the king; but there was to
be no mention of their belief, in cases of life and limb, it
being required that in matters of so high concern they should
speak upon their knowledge only. After this, the justices
were to give a charge to the jurors upon the matters concern-
ing which they were to speak the truth. They were then
[there being no evidence produced before them] all to go and
confer together, and be kept by bailiffs, so that no one should
be suffered to go near them; and, if any one did, or there
was any one of them who was not sworn, he was to be sent to
prison, and all the others amerced as a punishment for merely
suffering it. If they should not agree, they were to be sepa-
rated, and interrogated why they could not; and, after all,
according to the sense in which Britton is interpreted by a
late editor, the opinion of a greater number was to be fol-
lowed ; though no other author speaks of a verdict being
taken in a criminal case without the concurrence of all the
jurors ; and such unanimity is expressly required by Fleta.
If they all declared, upon their oaths, that they knew nothing
of the fact, others were to be put in their place who did know
it. . . . If the prisoner, finding the verdict was likely to pass
against him, would say, that some of the jurors were about to
procure his condemnation, at the instigation of the lord of
whom he held his land, to obtain an escheat, or from any
other motives; then the justices were carefully to question
them, and make strict examination and inquiry how they
were satisfied of their verdict. They perhaps might say, one
of their fellow-jurors told it them, and he (proceeds our
author!) perhaps might say, that he heard it asserted for a
truth at a tavern, or some other place, by one of the rabble,
or such a one as nobody ought to give credit to. If it ap-

1 Britton, referring to Kelham’s translation, p. 34 - 45,

[55]
§.87 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

peared to the justices, that one of the jurors was influenced,
or was intreated or procured by the lord, or by the enemies
of the indicted, to get him condemned, they were to cause
the procurers to be taken and punished by imprisonment and
fine. Britton lays it down as a rule, that, should the jurors
be doubtful of the matter, and nothing certain could be made
out, they should, in such case, always find for the defend-
ant.” 1

§ 86. Reading on, in this author, Reeves, we have the fol-
lowing : “It appears very evidently from this account of the
inquest upon which a prisoner put himself to establish his
innocence, that the jurors were considered as witnesses, the
same as in other juries, and in assizes; and to call witnesses
before them would have been absurd, and not at all conso-
nant with the notion entertained of this proceeding. They
were sworn to speak the truth ; to discharge which duty they
must speak from their own knowledge, and not from the tes-
timony of others ; and, as they came from the vicinage where
the fact was committed, none, it was thought, could be better
able to perform the office than themselves. It was many
years after this reign, and when the second (since called the
petty) jury began to be considered rather as judges of the
presumption raised by the finding of the presenters, than as
witnesses of the fact, that a kind of evidence used to be ex-
hibited to them.” 2

§ 87. The method by which the jury, in these times and
long afterward, was obtained, was for the court to issue to
the sheriff the precept known by the name of the venire, or
venire facias, whereby he was commanded to bring in the
proper jurymen ; and, plainly, since the jurymen were the
witnesses, he could not know where to look for them unless
the record disclosed the place where the offence was com-
mitted. It was not sufficient, for this purpose, that the county
was stated; but the neighborhood must be set down also.
Therefore it became the early law, which continued to have
more or less force after the reason of it ceased by the jury

12 Reeves Hist. Eng. Law, 269, 22 Reeves Hist. Eng. Law, 270,
270. 271»

[56]
CHAP. v1] ALLEGATION AND PROOF OF PLACE.

§ 89
ceasing to be regarded as witnesses, that both the county, and
the particular locality in the county where the offence was
committed, should be set down in the indictment.

§ 88. As to what was a sufficient allegation of the place,
other than of the county, the old authorities give us such ex-
amples as the following: Hawkins — treating, indeed, of
appeals in the antiquated and now obsolete sense of the word
— says, that, “if the truth will bear it, it is safest to lay the
act as having been done in a town, as the statute of Glouces-
ter! directs. But if it were done out of a town, it seems that
you may lay it in any other place from whence a visne may
come’; that is, whence a jury may be summoned as living
in the neighborhood wherein: the offence was committed?
Proceeding now to speak of criminal causes generally he says:
“TJ shall lay it down as a good general rule, that a visne may
come from any place which is of so small compass that all
who live in or near it may reasonably be presumed to have
some knowledge of the persons living in it, and therefore are
esteemed the most proper judges of the facts done within its
limits, as being most likely to be proved by witnesses, and
charged upon persons with whose integrity and reputation
they are best acquainted. And upon this ground it hath been
adjudged, that a visne may come, not only from a town, but
from a ward, parish, hamlet, burgh, manor, castle, or even
from a forest, or other place known, out of a town. Also it
seems clear, that, whensoever a place is generally alleged in
pleading, the law will intend it to be a vill, unless it be men-
tioned with some addition which shows the contrary; or be
alleged’ within a city or vill, in which case it would be absurd
to take it for a vill of itself.’ ®

§ 89. This old author proceeds as follows: “Yet if in

1 “Tt is enacted by the statute of
Gloucester, c. 9, ‘ that, if an appeal de-
clare the deed, the year, the day, the
hour, the time of the king, and the
town where the deed was done, and
with what weapon, the appeal shall
stand in effect, &c.’? And though this
more particularly relates to appeals of

death, yet it seems also to be generally:
a good rule as to the circumstances of
time and place in other appeals.” 2
Hawk. P. C. c. 23, § 86.

2 « Visne, A neighboring place, or
place near at hand.” Jacob Law
Dict.

3 9 Hawk. P. C. c. 23, § 92.

[57]
§ 90 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

truth there be no such town, nor hamlet, nor place known
out of town; or if a fact alleged in a forest were done in
some vill in the forest not mentioned in the record; the de-
fendant may plead it in abatement.1 Also if a fact done in a
vill, within a parish which contains divers vills, be in the
count in an appeal alleged generally in the parish ; or a fact
done in a city which contains divers parishes, be in the count
in an appeal alleged generally in the city ; it seems that. the
defendant may plead such matter in abatement: for otherwise
he could take no advantage of the insufficiency of the allega-
tion, because the place named, as it stands on the record,
must, till the contrary be shown, be intended to contain no
more than one town or parish, on which supposition a visne
may well come de vicineto civitatis, which does not exclude
the city, but takes in the city and its neighborhood within its
jurisdiction, whether such city be within a county, or be a
county of itself; excepting only the city of London, from
whence it seems that no visne can come, not only by reason
of the largeness of its extent, but also because it hath been
the constant usage of pleading to show the ward and parish

in which the fact alleged in London was done.” 2
§ 90. The reader perceives, that, at the time Hawkins

1 See also Rex v. Woodward, 1

to be found in the county ; it is ordered,
Moody, 323. In accordance with this

that every justice which, hath power to

doctrine, it may be observed, is Stat. 7
Hen. 5, extended by 9 Hen. 5, Stat. 1,
c. 1, and made perpetual by 18 Hen. 6,
c. 12, This statute seems at the first
impression to apply only to the county
palatine of Lancaster ; but, taken in con-
nection with 18 Hen. 6, vc. 12, it seems
correctly enough to be understood, as
it is by Williams in his Digest of Stat-
utes, to have a general application. I
copy it from this Digest, p. 109, where
it is slightly abridged of redundant
words: “Forasmuch as divers have
caused to be indicted and appealed di-
vers liege people of treasons and felo-
nies, pretending that the treasons or
felonies were committed in a certain
place, where of truth no such place is

[58]

hear and determine such treasons and
felonies by the oath of twelve men, of
whom every one shall have freehold in
the county to the yearly value of 100s.
before the exigent be awarded, without
allegations of the party, as well in the
party’s absence as in his presence, shall
inquire of office, whether any such place
be in the county or not; and, if it be
found that there is no such place, then
such appeals and indictments shall be
void. And in such case the indictors
shall be punished by imprisonment, fine,
and ransom. And if exigent be award-
ed before such inquisition of office be
taken, the exigent shall be likewise
void.”
2 2 Hawk. P. C. c, 23, § 92.
CHAP. VI.] ALLEGATION AND PROOF OF PLACE. § 91

wrote, the jury had ceased to be regarded as witnesses; their
function being then, as now, to hear the evidence, which con-
sisted in the testimony of third persons, and the like, and pass
upon it. Still the old rule, as to alleging the place within
the county wherein the crime was committed, prevailed; while
yet the reason of the rule had departed. And Hale, who
wrote earlier, though his great work was not published till a
later date, speaking of the writ of venire facias under which
the sheriff was to bring in the petit jury for the trial of a
criminal cause, says: It ‘“ commands him to return duodecim
liberos et legales homines de vicineto..... They are to be
de vicineto, but this is not necessarily required ; for they of
one side of the county are by law de vicineto to try an offence
of the other side of the county.”! It appears, therefore, from
this, that the effect of alleging the particular place in the
county wherein the crime was committed, was merely to as-
sist the sheriff in the exercise of his discretion concerning the
selection of the persons to be summoned as the jury. This
statement of the matter is believed to be substantially cor-
rect; though there are, in the books, some passages to be
found, qualifying or varying the matter somewhat.?

§ 91. Thus the law appears to have stood in England until
A. D. 1825, when by Stat. 6 Geo. 4, c. 50, § 18, it was enact-
ed, “that every writ of venire facias juratores for the trial of
any issue whatsoever, whether civil or criminal, or on any
penal statute, &., shall direct the sheriff to return twelve
good and lawful men of the body of his county, qualified ac-
cording to law, and'the rest of the writ shall proceed in the
accustomed form, &c., and shall not require the same to be
returned from any hundred or hundreds, or from any partic-
ular venue within, and that the want of hundredors shall
be no cause of challenge.” Afterward, in 1851, the English
law was further modified by Stat. 14 & 15 Vict. c.100, § 3,

1 2 Hale P. C. 264. 2 Hale, P. C. 163; — and, although

2 For example, in1 Chit. Crim. Law, the practice had fallen into disuse, the
177, it is said: “It seems that until right was not actually abrogated until
very recently, the right to challenge the. act of 6 Geo. 4, c. 50, by which it
for want of hundredors existed ;— Co. was taken away.” And see 1 Chit.
Lit. 125; 6 Co. 14 b; 2 T. R. 240; Crim. Law, 196. [59]
§ 93 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

as follows: “It shall not be necessary to state any venue in
the body of any indictment, but the county, city, or other juris-
diction named in the margin thereof, shall be taken to be the
venue for all the facts stated in the body of such indictment ;
provided that in cases where local description is or hereafter
shall be required, such local description shall be given in
the body of the indictment ; and provided also, that when an
indictment for an offence committed in the county of any
city or town corporate shall be preferred at the assizes of the
adjoining county, such county of the city or town shall be
deemed the venue, and may either be stated in the margin of
the indictment, with or without the name of the county in
which the offender is to be tried, or be stated in the body of
the indictment by way of venue.”

§ 92. The effect of the earlier of these two statutes seems
pretty plainly to have been, in England, to change the com-
mon law rule, and leave it unimportant for the pleader to al-
lege any place of the commission of the offence other than
the county ; for, as observed by Williams, J.: ‘* At a period
when the jury came from the immediate neighborhood, it was
necessary to allege a parish ; but now that they come, not de
vicineto, but de corpore comitatus, I cannot think it necessa-
ry.”1 This, let it be observed, was the general doctrine de-
rived from the statutory change respecting the locality whence
the jury was to come; but even this does not stand on so firm
a basis of authority as one might suppose it would.2 On the
other hand, there are exceptions to this doctrine, to be con-
sidered further on.

§ 93. In the United States, the matter stands substantially
as it did in England after the enactment of Stat. 6 Geo. 4, ¢.
50, § 18. There is believed to be no State in our Union
wherein the jurors are summoned de vicineto ; but in all the
States they come de corpore comitatus — from the body of
the county, not from the immediate neighborhood in which
the offence was committed. And the general rule in our
States, therefore, is, that there is no need for the indictment

1 Reg. v Gompertz, 9 Jur. 401, 14 2 See 3 Burn Just. 28th ed. 419;
Law J.n. 8. M.C. 118. Archb. Crim. Pl. 13th Lond. ed. 41.

[60]
CHAP. VI.] ALLEGATION AND PROOF OF PLACE. § 95

to allege the particular township or other like locality, within
the county, where the offence was committed. It may sim-
ply allege it to have been committed within the county which
it mentions, without more words.!

§ 94. Yet it is the safer as well as neater way, in most
cases, for the pleader to confine himself to the old forms in
this matter, and state the particular town, neighborhood,
vill, or parish wherein the offence was committed.2 For if he
does so, and unfortunately states it wrong, this will not ordi-
narily make the indictment bad, provided there was no need
it should have been stated at all.8 But here, if without occa-
sion, the pleader sets out the place by way of local description,
there is arule of evidence* which requires it to be proved as
laid.6 An instance of this kind occurred where, in an indict-
ment for arson, the house burned was described as being in
the sixth ward, New York, while the proof showed it to be in
the fifth ward: the variance was held to be fatal.®

§ 95. And there are some offences, which, by way of limi-
tation to the general rule, must be alleged to have been com-
mitted in some particular place smaller in extent than the

1 Wingard v. The State, 13 Ga. 396 ;
Studstill v. the State, 7 Ga. 2; The
State v. Warner, 4 Ind. 604; Dillon
v. The State, 9 Ind. 408; Barnes v. The
State, 5 Yerg. 186; The State o.
Goode, 24 Misso. 361; The State v.
Smith, 5 Harring. Del. 490 ; The State
». Lamon, 3 Hawks, 175; Haskins v.
People, 16 N. Y. 344; Covy v. The
State, 4 Port. 186 ; an Alabama case, in
which Hitchcock, C.J. observed: ‘In
this State, the jury comes from the
body of the county, and we have no
subdivisions into parishes, hamlets, &. ;
though in some of our counties we have
incorporated towns and cities, yet the
juries do not come from them, and the
jurisdiction of the circuit court is not
confined to them,” p. 191. In a large
part of our States, the entire area of the
several counties is organized into town-
ships, yet the result is not, therefore,
different in those States.

VOL. I. 6

2 See post, § 101, note. :

3 Heikes v. Commonwealth, 2 Casey,
5138. Thus an indictment for an as-
sault in one town is supported by proof
of an assault in another town in the
same county, and within the jurisdic-
tion of the court. Commonwealth v.
Tolliver, 8 Gray, 386; Commonwealth
v. Creed, 8 Gray, 387. In the former of
these cases, Dewey, J. observed: “Place *
is immaterial, unless when it is matter of
local description, if the offence be shown
to have been committed within the
county. All that is necessary to be
shown is, that the offence was commit-
ted at any place within the county,”
p- 386. See also The State v. Godfrey,
3 Fairf. 361. :

* Post, c. xvii.

5 The State v. Crogan, 8 Iowa, 523.

6 People v. Slater, 5 Hill, N. Y.
401.

[61]
§ 96 PLEADING AS RESPECTS THE INDICTMENT. [BOOK L

county. It is not possible to say, on authority, what are the
exact boundaries of this exceptional doctrine. In a late edi-
tion of Archbold on Criminal Pleading and Evidence, for in-
stance, it is said that this exception extends to “all cases
which are of a local nature.” 1 And similar language is found
in other books. But we have few practical illustrations to
show us what, in the adjudged law, such language means.
Plainly, in an indictment for forcible detainer, if the injured
party is to ask for a restitution of the premises by order of
the court,? the indictment must contain a sufficient descrip-
tion of them to enable the sheriff to make restitution, and the
simple allegation that the detainer was in the county will not
be enough.2 And under a peculiar statute in Iowa, it was
held, that, in an indictment for keeping a dram-shop, the de-
scription is not sufficiently specific if it merely mentions the
house as being in a certain block. “Only ordinary certainty
in description is required,’ said Kinney, J., “but still the
description should be sufficiently specific to point out with
reasonable certainty the house indicted, so that the building
could be proceeded against to final judgment and seizure,
without any uncertainty as to where it was located.” 4

§ 96. Suppose, again, there is a city within a county of
dimensions larger than the city, and there is a peculiar kind
of license required to sell intoxicating liquor in the city, dif-
fering from the license to sell in other parts of the county ;
or, suppose the penalty for selling in the one place differs from
the penalty for selling in the other-; in these circumstances,
the indictment must distinguish the locality in which the of-
fence was committed. In like manner, if it is a statutory

1 Archb. Crim. Pl. 13th ed. 41.

2 Crim. Law. II. § 488.

3 1 Russ. Crimes, Grea. ed. 311.

* Norris’s house v. The State, 3
Greene, Iowa, 513, 519, 520.

5 Legori v. The State, 8 Sm. & M.
697; Botto v. The State, 26 Mis-
sis. 108. In the former of these ca-
ges, 2 man was indicted for retailing
vinous and spirituous liquors in less
quantities than a gallon, in the city of

[ 62]

Vicksburg, without a license ; and was
found guilty upon proof that he made
such sale at a place four miles out of
the city. Thereupon the court held,
that, under the Mississippi statute of
1842, which appropriates all moneys
accruing from the granting of licenses
to retail, and from fines for a violation
of the statute, committed within the
city of Vicksburg, to that city, the par-
ticular place where the offence was
CHAP. VI.] ALLEGATION AND PROOF OF PLACE. § 98

offence to sell in a booth, or any other particular place, spe-
cifically named, less than a county, the indictment must
specify the place, it not being sufficient to allege the offence
to have been committed in the county generally! And ina
sort of general way it has been ‘laid down, that, where the
particular place is matter of essential description, it must be
truly alleged, and proved as laid?

§ 97. Some of the particular instances in which it has been
held not essential to mention more than the county in the in-
dictment, are the following: For the offences of murder,’ of
affray,* of disturbing the worship of a religious society,® of
purchasing goods from a slave without the master’s consent,®

of gaming.”

§ 98. If the jurisdiction of the court extends over a space

alleged to have been committed, be-
came a material fact in the offence,
and it was incumbent-on the State to
prove it as charged in the indictment.
In the latter case it was held, that,
where the indictment sets out the offence
of selling as committed in the county
generally, it is not sustained by proof of
a sale in Vicksburg ; because a differ-
ent license to sell is required in the one
case from the other; and the fine, on
conviction, goes differently. The in-
dictment should have charged the sale
to have been in Vicksburg.

1 Grimme v. Commonwealth, 5 B.
Monr. 263. This case holds, ghat a
presentment for retailing spirits, with-
out designating any place other than the
county, is not good; “for,” said Mar-
shall, J., “first, in the description of the
offence contained in various statutes,
place is always introduced as a part of
the definition ; as in the 4th section of the
act of 1793, if any person shall sell, &c.,
in any house, booth, arbor, &c.; and, in
the 5th section of the act of 1820, any
person who shall sell, &c., in any
booth, arbor, &c. So thatif the place
did not affect the grade of the offence,
it might still be material to its proper
specification. But second, there is a dif-

ference in the penalty inflicted for sell-
ing by retail in different places. The
first of the sections above referred to
subjects the offence of selling in the
places therein referred to, to a penalty
of 32. or $10. The second imposes a
penalty of $20,” &c. Under the gam-
ing act of Alabama of 1826, which pro-
hibits gaming “ on the premises ” of any
person, an indictment charging a per-
son with permitting gaming to be car-
ried on in his house is good; “ for there
can be no doubt, that « man’s prem-
ises may include his house.” Covy v.
The State, 4 Port. 186.

2 The State v. Cotton, 4 Fost. N. H.
143. In The State v. Smith, 5 Har-
ring. Del. 490, the court observed :
“Unless time or place enter into the
crime itself, it is not material to state or
prove it. The locality of a road enters
into the charge of obstructing it.”

8 Studstill ». The State, 7 Ga. 2;
Dillon v. The State, 9 Ind. 408 ; The
State v. Lamon, 3 Hawks, 175.

4 The State v. Warner, 4 Ind. 604,

5 The State v. Smith, 5 Harring,
Del. 490.

6 The State v. Goode, 24 Misso. 361.

7 Covy v. The State, 4 Port. 186.

[63]
§ 99 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

less than the county, an allegation that the offence was com-
mitted within the county, and no more, is insufficient; be-
cause, for all that appears on such a record, the tribunal may
be wholly without authority to take judicial cognizance of the
matter.1 For the doctrine is general, that the place wherein
the offence was committed must be so set out as to show juris-
diction in the court.2 Or, to state the matter in terms more
general, the place of the offence as alleged in the indictment
must not be larger than that over which the court has juris-
diction ; neither, on the other hand, must it be larger than
that from which the jury comes. In most cases, therefore, as
the jury comes from the body of the county, while the juris-
diction of the court is as wide or wider, the indictment must
state in what county the offence was committed.? But in the
courts of the United States the jury does not come from the
body of the county, and the jurisdiction of the court extends
over the entire district, therefore the indictment need not
mention the county.‘

§ 99. There is no form of words which the law requires to
be used exclusively of all other forms, in setting out the
county in which an offence was committed ; yet this allega-
tion, like every other, should be made with reasonable pre-
cision and exactness. And the facts stated, if there are such,

to show the county, should not be repugnant the one to the
other.

1 McBride v. The State, 10 Humph.
615. So in Chitty on Criminal Law we
have the following: “If the indict-
ment be preferred to a jury returned
only for a special division, or precinct, or
part of a county ; as in Yorkshire and
Lincolnshire, where there are different
districts and distinct juries ; and in the
Cinque Ports at Dover (part of Kent) ;
it must be shown in the body of the
indictment that the offence was not
only committed in a parish and the
county, but within the particular dis-
trict. 1 Chit. Crim. Law, 197, refer-
ring to Cro. Jac. 276; 2 Hawk. P. C.
c, 25, § 84; 2 Hale P. C.166; Keilw.

[64]

89, &. And see, as to the law of our
own country, Commonwealth v. Rich-
ards, 1 Va. Cas. 1; Taylor v. Com-
monwealth, 2 Va. Cas. 94.

2 The State v. Cotton, 4 Fost. N. H.
143.

8 The State v. Williams, 4 Ind. 234;
Halsey v. The State, 1 Southard, 324;
The State v. Welker, 14 Misso. 398;
Reg. v. O’Connor, 5 Q. B. 16; Searcy
v. The State, 4 Texas, 450; The State
v. Warren, 14 Texas, 406.

* United States ». Wilson, Bald. 78.

5 The State v. Hardwick, 2. Misso.
226 ; Jane v. The State, 3 Misso. 61.
CHAP. VI.] = ALLEGATION AND PROOF OF PLACE. § 101

§ 100. It is believed to be the common practice in all our
States, and it is certainly in some of them and in England, to
write the name of the county in the upper or side margin of
the indictment. And, says Chitty: “The county is stated in
the margin, thus, —‘ Middlesex,’ or ‘ Middlesex to wit,’ ! but
the latter method is the most usual.”? But in Virginia
the court held, that, if an indictment for a misdemeanor
states the name of the county in the body of the indictment,
this is sufficient though the name is left blank in the mar-
gin. And it seems plain, as matter of legal principle, that
the rule would be the same were the indictment for felony ;
also, that this is sound doctrine in all of our States. No-
where are things of form, like this, regarded, where the true
substance is preserved.*

§ 101. Chitty proceeds: “In the body of the indictment
also, the facts should in general be stated to have arisen in
the county in which the indictment is preferred, so that it
may appear that the offence was within the jurisdiction of the
court ; and, therefore, if a parish, vill, or other place where
the offence or part of it occurred, be stated without naming
the county in the margin, or expressly referring to it by the
words ‘the county aforesaid,’ the indictment will be defec-
tive.’5 But the reason why, in England, it is not sufficient
to mention, for example, the vill in which an offence was
committed, without adding the name of the county, is be-

1 Instead of “to wit,” the abbrevi-
ation “ss.” is in some of our States
used. Where there was an indictment
in the United States District Court for
the District of Massachusetts, and af-
ter the name of the district in the mar-
gin the customary “ss.” was omitted,
the defendant’s counsel objected that
therefore the indictment was insufficient.
It did*not become necessary for the
court to decide upon this objection ;
but, the point having been argued, Sto-
ry, J. observed, that the objection ap-
peared to him to be without foundation.
United States v. Grush, 5 Mason, 290,
302.

*6

2 1 Chit. Crim. Law, 194.

3 Tefft. v. Commonwealth, 8 Leigh,
721. And see Commonwealth v. Quin,
5 Gray, 478.

4 In Commonwealth v. Quin, su-
pra, Metealf, J. observed: “ Wedo not
understand that it ever was necessary
to insert the county in the margin, if it
was inserted in the body of the caption.
Lord Hale says, and it is so stated in
many books, that ‘the name of the
county must be in the margin of the
record, or repeated in the body of the
eaption”” 2 Hale P. C. 165, p. 480.

5 1 Chit. Crim. Law, 194. And see
Rex v. Hart, 6 Car, & P. 123.

[65]
§ 101 PLEADING AS RESPECTS.THE INDICTMENT. [BOOK IJ.

cause, in the language of Holt, C. J., “the court cannot
know where it [the vill] lies.”1 Yet where an indictment
alleged the facts to have transpired in the town of Cambridge,
without adding the name of the county, the court, in this
particular instance, held the allegation to be sufficient ; “ for
Cambridge being mentioned in several acts of Parliament,
the court must take notice of such acts, and upon such a re-
turn will intend that Cambridge is in the county of Cam-
bridge.”? In most of our States, perhaps all of them, the
divisions of the counties into townships, where there are such,
and the location therein of corporate cities and the like, are
matters of public law whereof the courts take judicial cogni-
zance, so that the exception in England constitutes the rule
with us; it being sufficient with us, as a general thing, to lay
the offence to have been committed in the minor locality, and
the court will judicially know that this minor locality is
within the larger, namely, is within the county.2 But, says

1 Rex v. Griepe, 1 Ld. Raym. 256,
oe ies v. Journeymen Tailors, 8 Mod.
10, 12.

8 The State v. Powers, 25 Conn.
48; Vanderwerker v. People, 5 Wend.
530; People v. Lafuente, 6 Cal. 202.
Parsons, C. J. states the doctrine thus :
“In England, the limits of the sev-
eral counties and parishes are not ascer-
tained by public acts of Parliament,
the records of which are remaining ; but
they are determined by ancient usage,
of which the judges cannot judicially take
notice. The case is different in Massa-
chusetts. Our county limits, and also the
boundaries of our several towns, are pre-
scribed by public statutes, of which we
are bound judicially to take notice.
When from these limits or boundaries
it appears that every part of any town is
in the same county, of that fact we can
judicially take notice.” Commonwealth
v. Springfield, 7 Mass. 9, 12, And
see The State v. Palmer, 4 Misso. 453.
According to » Tennessee case, while
the record should show the offence

[66]

to have been committed in the ‘proper
county, yet, if it states that it was com-
mitted ina town, which a public law
recites to be in a county, this is suffi-
cient; but if, since the passage of the
law, the boundaries of the county have
been changed, and the law changing
them does not show whether the town
is left within the old county, or is in-
cluded in the part which is taken off,
the court cannot judicially know in
which county the town is situate. Hite
v. The State, 9 Yerg. 357. The offence
charged, it was held in Maine, should
appear to have been committed in the
county named in the indictment ; but,
if it allege the commission in a town
named, and that the town belonged to
a county at the finding of the bill, it is
sufficient, without setting forth in what
county the town was when the ‘offence
was committed. The State v. Jackson,
39 Maine, 291. In Commonwealth
v. Springtield, supra, Parsons, C. J. in-
timates a doubt, whether, in capital fel-
onies, the doctrine of our text will pre-
vail. He says: “In indictments for
CHAP. VI] ALLEGATION AND PROOF OF PLACE. § 102

Parsons, O. J., “when, from the terms of the location of a
town or district by the act of incorporation, we cannot con-
clude that the whole town or district lies in one county, then
the indictment ought to describe the offence as committed,
not only in such town, but also in the county where it is
found. And in places unincorporated a similar certainty will
be expected.” ! In a late Massachusetts case, the court held
the very nice point, that, where a complaint before a justice
of the peace alleged the offence to have been committed “ at
West Brookfield,” instead of “at the town of West Brook-
field,” not mentioning the county, it was insufficient ; be-
cause, said the judge, “it does not appear in this complaint
that West Brookfield .... is either a town or a place within
the county of Worcester.” 2

§ 102. If the name of the county is stated in the margin,
or in the introductory part or caption,® of the indictment, —
suppose there is not a town mentioned, or suppose there is, —
then, if in the proper place the offence is alleged to have been
committed “in the county aforesaid,” this is sufficient, with-

out repeating the name of the county.*

capital offences, the strictness of requir-
ing the indictment to allege the offence
as committed, not only in a certain
town, but also in a certain county, has
always been adhered to ; and, in favor
of life, the court perhaps would not
feel authorized to depart from the an-
cient rule. Indeed, in all cases it would
be prudent [see ante, § 94] for those
who draw indictments to adhere to the
old practice ; because there are towns
which do not lie wholly in one county,
and also unincorporated plantations,
the locality of which we cannot judi-
cially know,” p. 13. In Tennessee, the
courts deem it not essential that the in-
dictment should lay the venue so strict-
ly in misdemeanors as in felonies.
Taylor v. The State, 6 Humph. 285 ;
Sanderlin v. The State, 2 Humph.
815 ; Thompson v. The State, 5 Humph.
138. Itis believed, however, that upon
the matter discussed in the text,

Chitty also says:

there is no difference between the in-
dictment for felony, capital or not cap-
ital, and for misdemeanor; and that,
while the advice of Parsons, C. J. to
prosecuting officers is good, the indict-
ment for a capital felony drawn in dis-
regard of the advice in the case put,
is also good. And see as to this dis-
tinction, ante, § 44, 71.

1 Commonwealth »v. Springfield, su-
pra, p. 12.

2 Commonwealth v. Barnard, 6 Gray,
488. See Commonwealth v. Quin, 5
Gray, 478; Commonwealth v. Cum-
mings, 6 Gray, 487.

8 As to the caption, see post, c. xi.

41Chit. Crim. Law, 194; Rex v.
Kilderby, 1 Saund. Wms. ed. 308 and
note ; Barnes v. The State, 5 Yerg. 186;
The State ». Ames, 10 Misso. 743 (see
the earlier case of McDonald v. The
State, 8 Misso. 283 ; and in the still ear-
lier case of The State v. Cook, 1 Misso.

[67]
§ 102 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

“Where two counties are mentioned, as Surrey, in the mar-
gin, and then a fact is described as having happened in Mid-
dlesex, and afterwards the offence is stated to have been com-
mitted at a place ‘in the county aforesaid,’ without showing
which county is intended; this will refer to the last antece-
dent county, Middlesex, and the indictment will be insuffi-
cient ; for the rule in civil actions, that the venue in the mar-
gin will aid it, does not extend to criminal proceedings.” }
The word “‘insufficient”’? must have been written “sufficient,”
to correspond with the rest of the sentence; but then the doc-
trine would have been wrong in principle, nor even sustained
by the authorities he cites. The true doctrine is, that, when-
ever two counties have been mentioned, whether in the body
or in the margin, and then the offence is alleged to have been
committed ‘“‘in the county aforesaid,” this is insufficient, for

it is uncertain to which county reference is made.”

547, the contrary, where the county was
named only in the margin, was distinct-
ly held) ; The State v. Alsop, 4 Ind.
141. Sce the State v. Conley, 39 Maine,
78. So, where, in an indictment for a
forcible trespass, the name of the coun-
ty was mentioned in the margin, and
there was the allegation that the dwel-
ling-house on which the trespass was
committed, was “there situated and
being,” these words were held suffi-
ciently to refer to the county. The State
v. Tolever, 5 Iré. 452. And where the
county has been mentioned in the mar-
gin, the word “ there,” in the body of
the indictment, will be understood as
referring to it. The State v. Bell, 3
Ire. 506. See Kennedy ». Common-
wealth, 3 Bibb, 490. It is no ground
for a motion in arrest of judgment on
an indictment for selling liquor, con-
trary to the New Hampshire statute,
that the indictment does not charge the
offence to have been committed within
the county where the indictment was
found, in any more direct form than by
describing the respondent as “ of the
city of Concord, in said county,” and
averring that the sale was made at said

[68]

Concord, — that being a city within the
county. The State v. Shaw, 35 N. H.
217. See post, § 151, note, par. 2;
The State v. Hopkins, 7 Blackf. 494.

11, Chit. Crim. Law, 194, referring
to 2 Ld. Raym. 888, 1304; 2 Hale,
P. C. 180; Cro. Eliz. 184; 1 Saund.
Wms. ed. 308, note ; 1 Chit. Pl. 4th
ed. 249 ; 2 Bast. 66; 1 Bulst. 205.

2 1. Lord Hale, for instance, in the
place to which Chitty refers, says:
“Tf there be two counties named, one
in the margin, another in the addition
of any party, or in the recital of an
act of parliament recited in the premi-
ses of the indictment, the fact laid apud
S. in com. preedicto, vitiates the indict-
ment; because two counties are named
before, and it is uncertain to which it
refers.” 2 Hale P.C.180. To the same
effect are 1 Saund. Wms. ed. 308, note ;
Elnor’s case, Cro. Eliz. 184; Rex v.
Moor Critchell, 2 East, 66; Reg. v.
Gunn, 11 Mod. 66.

2. American authorities ; The State
v. McCracken, 20 Misso. 411 ; Bell’s
case, 8 Grat. 600 ; Jane v. The State, 3
Misso. 61. An indictment was entitled
in the margin, “ The State of Alaba-
CHAP. VI.]

ALLEGATION AND PROOF OF PLACE. § 108

§ 108. There are other nice points concerning the words
necessary to be used to distinguish the county ; but, in the
nature of the case, no general direction in a law book can
furnish the practitioner or the judge with a sufficient sole
guide respecting such matters. In Massachusetts, for in-
stance, it was held, that a complaint against ‘“ Peter Cum-
mings of New Braintree, in the county of Worcester,” alleg-
ing a sale of intoxicating liquor by him “at New Braintree,”
not saying the “said”? New Braintree, or adding the county
in this place, was sufficient ; because “it must be understood
that he is charged with having sold it at the same New Brain-
tree which is mentioned, namely, in the county of Worcester.
If New Braintree had not been previously designated as with-
in the county of Worcester, the complaint would have been
insufficient to sustain a judgment.” ! The precedents relat-
ing to the class of subjects under consideration in this section
should be severally examined with care before they are fol-
lowed. For example: in the year 1793, while, as the reader
has seen,? it was necessary to set out in the indictment both
the county and the particular minor locality in which an
offence was committed, and the court did not take judicial
cognizance of the parishes and other like places composing

ma, Butler county,” and in the body of it
was the recitation, that the grand jurors,
&c., of the county of Buter, upon their
oaths present, &c. The name of the coun-
ty was not again repeated, nor was any
other county named. The offence was
charged to have been committed “in the
county aforesaid.” It was held, that the
indictment was not defective. The courts
are bound to know the names of all the
counties in the State; and, there being
no such county as Buter, the words “in
the county aforesaid ”’ must refer to the
county stated in the margin of the in-
dictment. Reeves v. The State, 20
Ala. 33. Where the indictment had in
the margin the words “ Herkimer Coun-
ty, ss,” then in the body of it de-
scribed the defendant as late of Utica, in
the county of Oneida, and lastly laid
the offence at Frankfort, in said county,

the court held the locality to be suffi-
ciently well stated. ‘ Saying the offence
was committed in Frankfort, a town
which we know is in Herkimer, was
equivalent to an express allegation that
it was committed in Herkimer.” Peo-
ple v. Breese, 7 Cow. 429,430. And
see ante, § 201.

1 Commonwealth v. Cummings, 6
Gray, 487, opinion by Metcalf, J. And
see further on this class of questions :
Reg. v. Albert, 5 Q. B. 37; Reg. v.
St. John, 9 Car. & P. 40 ; Reg. v. O’-
Connor, 5 Q. B. 16; Reg. v. Mitchell,
2Q.B. 636; Reg. v. Albert, Dav. &
M. 89; Graham v. The State, 1 Pike,
171; The State v. Jackson, 39 Maine,
291; The State v. Slocum, 8 Blackf.
315; Sandalin v. The State, 2 Humph.
315.

2 Ante § 87.

[69]
PLEADING AS RESPECTS THE INDICTMENT.

§ 104 [BOOK IL.

a county, an indictment alleging, that the defendant, late of
Woolhampton in the county of Berks, at the parish aforesaid
in the county aforesaid, did the criminal act, was held to be
insufficient. The court could not judicially know that Wool-
hampton was a parish, and it had not been named in the in-
dictment as such ; therefore there was no sufficient allegation
of the place, within the county, where the offence was com-
mitted But we have seen? that, in our States, if Wool-
hampton were a township or other like corporation, the court
would judicially know this fact ; hence the indictment would
be sufficient, even if it were required to set out this minor
place ; while, also, at the present day, such minor place need
not be stated in the indictment, either in England or in this
country. Therefore, what in 1793 was held to be bad in
England, would now be deemed in both countries good.

§ 104. We have seen,’ that there are some statutory pro-
visions under which an indictment is sometimes found, and a
trial is had, in a county other than the one in which the of-
fence was committed. Chitty, speaking of this class of stat-
utes, says: “ All facts within the realm should be laid in the
county where they actually happened. Thus, in case of mur-
der, if the stroke or poison be given in one county, and the
death occur in another, the facts should be stated according
to their actual existence. And in prosecutions on the black
act, which may be carried on in any county, it is usual to
state the crime to have been committed in that where it act-
ually occurred, though the venue be laid in any county.
And in an indictment against an accessory, under the stat-
ute 2 & 3 Edw. 6, c. 24, for procuring the commission of
a murder in another county, it should be averred, according
to the fact, that the principal committed the murder in the
county where it was actually perpetrated.” + In these cases,

1 Rex v. Mathews, 5. T. R. 162.

2 Ante, § 101.

8 Ante, § 79.

#1 Chit. Crim. Law, 195. He goes
on, in this place, to say further : “ Of-
fences committed in the county of #
city or town corporate, and indicted in

[70]

the county next adjoining under the
88 Geo. 3, c. 52, should be laid to
have been committed in the county of
the town ; but it need not be averred
that the county where the indictment
is brought, is the next adjoining coun-
ty. So indictments for offences com-
CHAP. VI.] ALLEGATION AND PROOF OF PLACE. §105

there must also be some allegation showing a jurisdiction in
a county other than that in which the offence is thus alleged
to have been committed. For example, the English statute
9 Geo. 4, c. 31, § 22, provided, that a person charged with
polygamy might be held to answer “in the county where the
offender shall be apprehended or be in custody, as if the of-
fence had been actually committed in that county”; and it
was under this statute decided to be necessary for the indict-
ment to mention the fact of the prisoner having been appre-
hended, or being in custody, in the county of the trial So
likewise it was held, that the proof of the apprehension must
be by the production of the warrant, in order to give the

court jurisdiction.?

§ 105. Where, by a statute, the offence may be tried in

mitted upon the high seas should al-
lege the. crimes to have been commit-
ted there, in order to show the admi-
ralty jurisdiction. And an _ offence
committed in a foreign country should
be stated to have been committed ‘in
parts beyond the seas, without the
realm,’ though it is said that it may
be laid to have been committed in the
county where the offence is to be
tried.”

1 Rex v. Fraser, 1 Moody, 407 ;
Reg. v. Whiley, 2 Moody, 186, 1 Car.
& K.150. Where a prisoner is tried
for forgery in the county where he is in
custody, under 1 Will. 4, c. 66, § 25,
the forgery may be alleged to have
been committed in that county, and
there need not be any averment that
the prisoner is in custody there. But
this comes from the peculiar language
of the statute. Rex v. James, 7 Car.
& P.553. An indictment on Stat. 9,
Geo. 4, c. 31, § 7, for murder com-
mitted by a British subject abroad,
must aver, that the prisoner and the
deceased were subjects of her Majesty.
To prove the allegation as to the pris-
oner, his own declaration is evidence
to go to the jury, and it will be for
them to say, whether they are satis-

fied that he is in fact a British-born
subject. The indictment ought not to
state the offence to have been com-
mitted at “Boulogne, in the kingdom
of France, to wit, at the Parish of St.
Mary-le-Bow, &c;” and, it being so
on a bill presented, the court directed
the London venue to be struck out
before the bill was found by the grand
jury. Rex v. Helsham, 4 Car. & P.
394,

2 Rex v. Forsyth, 2 Leach, 4th ed.
826. This indictment was under the
earlier’ statute, 1 Jac. 1, ¢. 11, but its
terms do not differ materially from
those quoted in the text. According
to a decision in one of the circuit
courts of the United States, it is not
usual to call upon the government to
offer direct evidence to prove that the
defendant was first apprehended with-
in the district where he is tried; and,
if there is evidence to show the offence
to have been committed by the de-
fendant in uw ship then on the voy-
age direct to B., a port in the dis-
trict, and the prisoner is in custody
in B., the jury is warranted in find-
ing the fact that ho was first brought
into B. United States v. Mingo, 2
Curt. C. C. 1.

[71]
§ 107 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

the county next adjoining the one in which it was committed,
there is no need for the indictment to allege that the county
is next adjoining! For, plainly, since the court takes notice
of the geographical divisions of the State, it knows what
county is next adjoining another one: this is a matter of law,
and, as we have seen,” matters of law need not be set out in
the indictment.®

§ 106. It is customary, in the United States, to write the
name of the State in the margin in connection with the name
of the county. But there is no need the name of the State
should appear, either in the margin, or in any other part of
the indictment.* .

§107. The remaining point to be mentioned in this chap-
ter is, that, while it is necessary for the indictment to state the
county in which the offence was committed, the proof must

- also affirmatively sustain this allegation.6 There are various
questions of presumptive evidence connected with this propo-
sition ; but it is deemed best to leave their discussion for
other parts of these volumes, merely referring here to some

of the authorities.®

1 Rex v. Goff, Russ. & Ry. 179.

2 Ante, § 52.

8 Perhaps Reg. v. Jones, 2 Car. &
K. 165, 1 Den. C. C. 101, proceeded
in part on this principle. According to
this case, which was decided under’a stat-
ute, it is sufficient, in an indictment pre-
ferred at the assizes for a felony commit-
ted on the high seas, to allege that the
offence was committed on the high seas,
without adding that it was committed
within the jurisdiction of the admiralty.

# The State v. Jordan, 12 Texas,
205; The State v. Lane, 4 Ire. 113 ;
Mitchell v. The State, 8 Yerg. 514;
Kirk v. The State, 6 Misso. 469 ; Com-
monwealth ». Quin, 5 Gray, 478.

5 Moody v. The State, 7 Blackf.
424 ; Gordon v. The State, 4 Misso. 375 ;
Yates v. The State, 10 Yerg. 549;
Mitchum v. The State, 11 Ga. 615;

[72]

Brown v, The State, 27 Ala. 47;
Hoffman v. The State, 28 Ala. 48;
Spaight ». The State, 29 Ala. 32 ; Sear-
cy v. The State,4 Texas, 450. This
doctrine extends as well to misdemean-
ors as to felonies. Snyder v. The State,
5 Ind. 194. A new trial may be award-
ed for want of proper proof of the venue.
Holeman v. The State, 13 Ark. 105;
Ewell v. The State, 6 Yerg. 364. A
special verdict, to sustain a judgment,
must find in what county the offence
was committed. Rex v. Hazel, 1 Leach,
4th ed. 368.

6 Rex v. Crocker, 2 Leach, 4th ed.
987 ; Russ. & Ry. 97 ; Rex v. Pim, Russ.
& Ry. 425 ; Rex v. Parkes, 2 East P.
C. 963, 992 ; Reid v. The State, 20 Ga.
681; Johnson v. The State, 35 Ala.
370 ; Henderson v. The State, 14 Tex-
as, 503.
CHAP. VII. ] CHANGE OF VENUE. § 108

CHAPTER VII.

CHANGE OF VENUE.

§ 108. In Burrow’s Reports we have the following as
enunciated by the court: ‘ The law is clear and uniform as
far back as it can be traced. Where the court has jurisdic-
tion of the matter, if from any cause it cannot be tried in the
place, it shall be tried as near as may be... . . Where an
impartial trial cannot be had in the proper county, it shall be
tried in the next.”’?1 This is the doctrine of what is termed
the change of venue. It is stated by Starkie as follows:
“Where an indictment has been removed into the Court of
King’s Bench by certiorari, if a case be made out which shows
that the justice of the case requires it, the court will direct

the trial to be had in the next adjoining county.” ?

This

change of venue is in many of our States allowed, by statute
or otherwise, in proper circumstances.?

1 Rex v. Cowle, 2 Bur. 834, 859.
However, in the case of Rex v. Holden,
5 B. & Ad. 347, 354, 355, 2 Nev. & M.
167, Lord Denman, C. J. observed:
“ T apprehend that the power of chang-
ing the place of trial, whenever it is ne-
cessary for the purpose of securing as
far as possible a fair investigation, is a
part of the jurisdiction of this court;
and that that power may be exercised,
where it is absolutely necessary, in cases
of felony. Instances have occurred in
which this has been done for the purpose
of removing the trial from limited ju-
risdictions, but there does not appear to
be any in which it has been done with
respect to a county at large; and I
should think such a proceeding could
not be necessary where the removal
must be from one great county to an-
other. Where it has happened on in-
dictments for misdemeanor, the cir-

VOL. I. qT

cumstances have almost amounted to a
necessity.”

21 Stark. Crim. Pl. 2d ed. 30 ; Rex
v. Hunt, 3B. & Ald. 444, 2 Chit. 130;
Reg. v. Wilts, 6 Mod. 307; Rex v. Not-
tingham, 4 East, 208 ; Rex v. Clen-
don, 2 Stra. 911; 1 Chit. Crim. Law,
201.

3 Fanny »v. The State, 6 Misso. 122 ;
People v. Harris, 4 Denio, 150 ; Peo-
ple v. Webb, 1 Hill, N. ¥. 179; The
State v. Ware, 10 Ala. 814; Porter v.
The State, 5 Misso. 588 ; The State ».
Burris, 4 Harring. Del. 582 ; Innerarity
v. Hitcheock, 3 Stew. & P.9; Com-
monwealth v. Rolls, 2 Va. Cas. 68 ;
Commonwealth v. Bedinger, 1 Va. Cas.
125 ; Commonwealth v. Wildy, 2 Va.
Cas. 69; The State v. Brookshire, 2
Ala. 303 ; People v. Vermilyea, 7 Cow.
108; People v. Scates, 3 Scam. 351;
Clark v. People, 1 Scam. 117 ; Find-

[73]
§ 109 PLEADING AS RESPECTS THE INDICTMENT. [BOOK U.

§ 109. It might be interesting to trace the unwritten law
of the several States to discover, whether or not this doctrine
of the change of venue has been everywhere received in this
country as a part of our inheritance from the mother coun-
try ; and, if it has, to show by what means, in some States in
which it is believed not to exist, it has been set aside. But
such an investigation is not practically important. In Ver-
mont it has been held, that there can be no change of venue ;
because, said Redfield, C. J., “as the statute provides, in gen-
eral terms, for the trial of criminal cases in the county where
the offence is charged to have been committed, we do not per-
ceive how any court could order a trial in such eases in any
other county.’’!. Here, therefore, is, in effect, a statutory
prohibition. In other States, as already observed, the change
of venue is expressly authorized by statute.2 And there may

ley v. The State, 5 Blackf.576; Ma-
ton v. People, 15 Ill. 536 ; Brennan v.
People, 15 Ill. 511; Moses v. The
State, 11 Humph. 232,

1 The State ». Howard, 31Vt. 414,415.

2 Ante, § 108.

8 Gordon v. The State, 3 Iowa, 410;
The State v. Barrett, 8 Iowa, 536 ;
Bishop v. The State, 30 Ala. 34 ; Moses
v. The State, 11 Humph. 232 ; and ma-
ny other cases, including those cited
to the last section. In a New York
case decided in 1827, there was employ-
ed some language indicating to out-
ward appearance, that the doctrine of

change of venue did not prevail in this-

State, but that something else analo-
gous did. Said Savage, C. J. : “ Chang-
ing the venue, speaking technically, is
out of the question. The course in crim-
inal prosecutions, where a clear case
is made out, is, to order a suggestion
upon the record, that a fair and impar-
tial trial cannot be had in the county
where the offence is laid. A venire is
then awarded to the sheriff of another
county, and the cause tried there ; the
indictment remaining unaltered as to
the venue.” And Woodworth, J. ob-
served : “ There is no doubt of our

[74]

power, upon a proper case, to send a
criminal cause down for trial to a coun-
ty other than that in which the venue
was laid. Crimes, however, are essen-
tially local. Hence, the venue, as such,
eannot be changed. The place of trial
must be altered by suggestion, and on
clear proof that the cause cannot be
tried in the county where the offence is
laid, with safety to the rights of the de-
fendant.” People v. Vermilyea, 7 Cow.
108, 137, 139. This appears, however,
not to differ materially from the Eng-
lish practice ; and, though in exact lan-
guage the term change of venue may
not seem appropriate, yet it is the term
generally employed to signify this, and
kindred things. The analogy between
what was thus laid down in New York,
and what is done in England, appears
from the following extract taken from
the report of a case in the Court of King’s
Bench: “ This was an indictment for
the non-repair of a road lying within
the county of the city of Chester, re-
turned by certiorari into this court; and.
on a former day arule had been obtain-
ed, on motion of Mr. Erskine, for the
prosecutor, for leave to enter a sug-
gestion on the record, that a fair and
CHAP. VIL]

CHANGE OF VENUE. § 110

be States in which the change is made in pursuance merely
of the common law doctrine ; but doubtless in most if not
all of the States, the question depends upon statutory and
constitutional provisions.

§ 110. Concerning the causes for which the change will be
allowed, Chitty observes: “An indictment against a county
for not repairing a bridge! will be thus removed, because
the jury by whom it would be tried, would form part of the
defendants. And therefore upon a suggestion entered by
leave of the court upon the roll, that a fair and impartial
trial cannot be had in the county of the city of Chester, the
court will award the trial to be had in the adjoining county
palatine. On an indictment for a misdemeanor, the Court of
King’s Bench will permit a suggestion to be entered on record,
for the purpose of carrying the trial into an adjoining county,
where there appears to be a reasonable ground, on the affida-
vits, for believing that a fair and impartial trial cannot be
had in the county where such inference is to be drawn.”’? It
may be said, in general, that, while the English tribunals
will change the venue when plainly an impartial trial cannot
be hhad in the county where the indictment was found ;* yet
this is an authority which will be exercised with great cau-
tion, and only in extreme cases. In one case it was held to
be no reason for changing the venue, in an indictment for a

impartial trial could not be had in that both from the common law and the Re-

county ; and praying the court to award
a trial in the county of Salop, that be-
ing the next English county, where the
king’s writ of venire runs.” Rex v. St.
Mary, 7 T.R. 735. I infer that the
above New York case was decided un-
der the common law of the State ; for
s0 the matter seems to have been regard-
ed both by the counsel and the court.
But since then, there has been enacted
astatute allowing the venue to be chang-
ed in “ special cases.” Said the court:
“The statute has not introduced a
new rule.” People v. Harris, 4 De-
nio, 150. See also People v. Webb, 1
Hill, N. Y. 179, where it appears that
the right to change the venue comes

vised Statutes.

1 Referring to Rex v. Cumberland,
6T.R. 194.

2 Referring to Rex v. St. Mary, 7 T.
R. 735.

3 1 Chit. Crim. Law, 201.

4 Rex v. Hunt, 3 B. & Ald. 444, 2
Chit. 130.

5 Rex v. Holden, 5 B. & Ad. 347, 2
Nev. & M. 167, ante, § 108, note ; Rex
v. Harris, 3 Bur. 1830, 1 W. Bl. 378.
In a case of felony, the court refused
to allow the defendant to enter a sug-
gestion for changing the venue, on the
ground of prejudice prevailing in the
county. Rex v. Penpraze, 1 Nev. &
M. 812, 4 B. & Ad. 573.

[75]
[BOOK IL.

§111 PLEADING AS RESPECTS THE INDICTMENT.

conspiracy to destroy foxes and other noxious animals, that
the gentry of the county in which the indictment was found,
were addicted to fox-hunting.!

§ 111. Similar to the English doctrine, as to the causes for
which a change of venue will be ordered, is the American.
Thus, it will not be changed for the mere convenience of the
witnesses and parties ;? neither will it be, because of a mere
belief, expressed in the affidavits, that the prisoner cannot
have a fair and impartial trial.in the county where the in-
dictment was found. Facts and circumstances must appear,
establishing this conclusion to the satisfaction of the court.®
It is not necessary, as a foundation for this order, that there
should have been an unsuccessful attempt to obtain an im-
partial jury in the county of the indictment.‘ Partiality or
prejudice in the judge is a good cause for a change of venue 55
so, a fortiori, is pecuniary interest in the event of the prose-
cution.© In like manner, the venue may be changed, if, be-
fore the elevation of the judge to the bench, he was the pris-
oner’s counsel in the matter.’ And, in a California case,
where one hundred citizens of the county had united in em-
ploying counsel to prosecute the prisoner, this was held to
entitle him to a change of venue.® '

1 Rex v. King, 2 Chit. 217.

2 People v. Harris, 4 Denio, 150. See
People v. Baker, 3 Parker C. C. 181.

3 People v. Bodine, 7 Hill, N. Y.

147; People v. Long Island Railroad, 4
Parker C. C. 602; The Statev. Wind-

lenged, it was held, that the refusal of
the circuit judge to change the venue
was not such an error of judgment as
would authorize the supreme court to
reverse his decision. Moses ». The
State, 11 Humph. 232. See also Worme-

sor, 5 Harring. Del. 512; The State
v. Burris, 4 Harring. Del. 582 ; Worme-
ley v. Commonwealth, 10 Grat. 658.

* People v. Long Island Railroad,
supra. In California, there is no error
in postponing the consideration for a
change of venue in a murder case, un-
til an attempt is made to impanel a ju-
ry. People ». Plummer, 9 Cal. 298,
Where a trial for murder commenced
on Tuesday, and a jury was obtained
on Friday, and two hundred men were
summoned as jurors, all of whom had
formed an opinion except the twelve se-
Jected, and thirty-four who were chal-

[76]

ley ». Commonwealth, 10 Grat. 658.

5 Ex parte Curtis, 3 Min. 274; Ley-
ner v. The State, 8 Ind. 490.

® Jim v. The State, 3 Misso. 147.

7 The State v. Gates, 20 Misso. 400.

8 People v. Lee, 5 Cal. 353. In
South Carolina, an affidavit of one in-
dicted for a capital offence, stating that
he believed he could not obtain an im-
partial trial because a subscription for
his arrest had been raised in the district,
was held not to be sufficient ground fora
change of venue. The State v. Williams,
2 McCord, 383. Said Colcock, J.: “The
fact stated was not of such a character
CHAP. VII] CHANGE OF VENUE. § 118

§ 112. In Illinois, “the statute,” says the court, “ provid-
ing the mode of changing the venue, is peremptory, — that
the court shall award a change, when the application is made
in the mode and for the causes set out in the statute.” It is
therefore unnecessary for the prisoner applying, to do more
than simply bring himself within the terms of the statute ;
and he is entitled, as of course, to the order he seeks.t But
in most of our States, the application for a change of venue
is addressed to the judicial discretion, and the matter is not
deemed one pertaining to strict right. In some States, the
discretion herein exercised by an inferior tribunal can be
revised by the superior one;® in other States, it cannot.*
This depends upon the peculiar statutory and common-law

jurisprudence of the State.

In some States, the venue, by

statute, can be changed but once.®
§ 118. Connected with this matter there have been decided,

as to produce any improper bias on the
minds of those who were subscribers,
and the subscription was confined to
a very few.”

1 Clark v. People, 1 Scam. 117. s. P.
Barrows v. People, 11 Ill. 121 ; Bren-
nan v. People, 15 Ill. 511. Itis differ-
ent in the recorder’s court for the city
of Chicago. Maton v. People, 15 Ill. 536.

2 ‘Hubbard v. The State, 7 Ind. 160;
Griffith ». The State, 12 Ind. 548 ; Hall
». The State, 8 Ind. 439 ; Weeks v. The
State, 31 Missis. 490; Mask v. The
State, 32 Missis. 405.

3 People v. Lee, 5 Cal. 353. Still the
superior court will not reverse the ac-
tion of the court below, except in. cases
of clear abuse of the discretion, or palpa-
ble error. Ellick 7. The State, 1 Swan,
Tenn. 325; People v. Fisher, 6 Cal.
154; Gordon v. The State, 3 Iowa,
410; The State v. Barrett, 8 Iowa, 536.
Where a new trial in a criminal case has
been ordered because the court improp-
erly refused to change the venue, the
defendant, at the new trial, must file
new affidavits, showing that the cause
for the change still continues. The State
v. Nash, 7 Iowa, 347. Under the Ten-

T*

nessee statutes, the court is bound, in
the exercise of a sound legal discretion,
to grant a change of venue, when it
appears that the prisoner cannot have a
fair trial in the county where the indict-
ment was found. Yet where in a former
trial the court had improperly denied
the application for «a change and the
prisoner was convicted, but on other
grounds granted a new trial which re-
sulted in a conviction, it was held, that
the former error would be of no avail
to the prisoner in a motion for a second
new trial. Major v. The State, 4 Sneed,
597.

4 McCorkle v. The State, 14 Ind. 39;
Ex parte Banks, 28 Ala. 28 ; The State
v. Ware, 10 Ala. 814; Spence v. The
State, 8 Blackf. 281; Fleming v. Thé
State, 11 Ind. 234; Maton v. People,
15 Ill. 536; Findley v. The State, 5
Blackf. 576 ; Sumner v. The State, 5
Blackf. 579; The State v. Brookshire,
2 Ala. 303.

5 Aikin v. The State, 85 Ala. 399.
And see Innerarity v. Hitchcock, 3 Stew.
& P. 9. In Iowa the venue may be
changed more than once. The State vz.
Minski, 7 Iowa, 336.

[77]
§ 113

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK IL.

in the various States, many points of practice, more or less
depending upon common-law principles, and more or less rest-

ing in statutes.

Some of these decisions are mentioned in

a note.1 The change of venue is usually ordered on applica-

1 In the absence of express enactment,
the clerk of the court from which: the
venue is changed by an order of court
in a criminal case, has no authority to
remove the original papers from the file.
A transcript thereof, properly certified,
is all he is allowed to transmit, and is
sufficient for the court to proceed upon.
Browning v. The State, 30 Missis. 656.
Upon a change of venue, the trans-
mission of the transcript of proceedings,
with the original indictment and other
papers, satisfies the Indiana statute.
Jones v. The State, 11 Ind. 357. So
also in Maryland, Price v. The State, 8
Gill, 295. The record must show a
transcript of the proceedings in the first
court, and a certificate of change, to give
jurisdiction to the second court. Johnson
». The State, 11Ind.481. In Alabama,
on change of venue, the prisoner must be
tried on acertified transcript of the orig-
inal indictment and proceedings thereon,
to satisfy § 3613 of the code, and not on
the original papers themselves, as requir-
ed by the former rule of practice. Bishop
v. The State, 30 Ala. 34. The same in
Missouri. Ruby v. The State, 7 Misso.
206. In Tennessee, the jurisdiction of a
court to which a criminal has been trans-
ferred by change of venue, is not ousted
by a failure to enter on the minutes of
the court at the first term a transcript of
the records of the case. Calhoun v. The
State, 4 Humph. 477. See also as to
the record and the transcript thereof,
Ellick v. The State, 1 Swan, Tenn. 825 ;
Adams v. The State, 1 Swan, Tenn.
466. A prisoner charged with a capital
offence, where the venue was changed,
went to trial without objecting that the
record transmitted was not attested by
the seal of the court. Held, that this
was a waiver, and that the objection
could not afterward be made. And the
seal of the court seems not to be neces-

[78]

sary, when the clerk attests the record.
Major v. The State, 2 Sneed, 11. See
also, Brown v. The State, 13 Ark. 96;
Bishop v. The State, 30 Ala. 34; Bram-
lett v. The State, 31 Ala. 376. The
Virginia act of assembly, which directs,
that, on a change of venue in a case of
felony, the judge shall certify the recog-
nizances, together with a copy of the
record of the case, ‘and all other papers
which he may deem necessary for the
trial,” does not require that he should
certify a copy of the record of the ex-
amining court. Vance v. Common-
wealth, 2 Va. Cas. 162. Where an in-
dictment for murder is removed from
the common pleas to the supreme court
of Ohio, at the election of the prisoner,
the original indictment must be sent up.
But the clerk of the common pleas need
not certify in the transcript, that he has
deposited it in the supreme court ; that
may be shown aliunde. Shoemaker v.
The State, 12 Ohio, 43. Where a pris-
oner, in North Carolina, is removed to
an adjacent county, the record sent with
him need not set forth the formula by
which the grand jury was constituted.
The State v. Lamon, 3 Hawks, 175. In
Indiana, if an indictment be found in
the circuit court of one county of the
State, and be tried in the circuit court
of another, the record not showing a
change of venue, nor that any objection
was made to the jurisdiction of the lat-
ter court, a change of venue will be pre-
sumed. Doty v. The State, 6 Blackf.
529. Yet another Indiana case holds it
to be necessary for the record to show,
not only that the court before which the
indictment was found had jurisdiction
of the offence, but also the court which
tried the cause. The jurisdiction of the
court which tried the cause can be shown
only by a statement, in the nature of a
caption to its proceedings, that the in-
CHAP. VII. |

CHANGE OF VENUE.

§ 114

tion of the prisoner, first giving notice to the prosecuting
officer, and then supporting the application by affidavits;
but it may equally be ordered, in the absence of any provision
of written law to the contrary, when applied for by the repre-

sentative of the government.?

§ 114. If the prisoner has been arraigned, and has pleaded
to the indictment, before the venue is changed, there is no

dictment was filed there, and that the
prisoner was tried upon it. The indict-
ment should also constitute a part of the
record of the last-named court. Doty
v. The State, 7 Blackf. 427. Yet, under
the statute, the indictment need not be
recorded in ‘the court in which it was
found. Beauchamp v. The State, 6
Blackf. 299. But by a subsequent stat-’
‘ate the indictment must be recorded in
the county where it was found. Reed v.
The State, 8 Ind. 200. The certified
copy of the indictment, transmitted ona
change of venue, may be read to the ju-
ry on the trial; therefore, if the entire
transcript, containing a copy of the in-
dictment, is offered, and the defendant
objects to it as a whole, his objection
may be overruled. Harrall v. The State,
26 Ala. 52. See also, regarding the tran-
script of the indictment, Pleasant v.
The State, 15 Ark. 624; Sharp v. The
State, 2 Iowa, 454; Harrallv. The State,
26 Ala. 52; The State v. Hicklin, 5
Pike, 190; The State v, Greenwood, 5
Port. 474 ; Ward v. The State, 28 Ala.
53; Stone v. Robinson, 4 Eng. 469, 477;
Stringer v. Jacobs, 4 Eng. 497 ; Green
-v. The State, 19 Ark. 178. Upon a
change of venue, the court to which the
case is removed is bound to presume all
things regular before the change, as the
existence of a good caption to the in-
: dictment, and it devolves upon the pris-
oner to show any fatal irregularity ;
likewise it is presumable that the record
has been duly transmitted and delivered.
Said Taylor, J.: ‘“ As the circuit court
of Montgomery county is a court of gen-
eral jurisdiction, the court into which
the case was removed was bound to in-

fer that all things had been regularly
done before the change of’ venue was or-
dered.” The State v. Williams, 3 Stew.
454, 463. An illegal change of venue,
where the transfer has still been made
to a court having competent jurisdiction
over that species of offence, has been
held in Missouri, by a majority of the
judges, not to be ground for reversing
the judgment, at the instance of the
defendant on whose application the
change was made. Porter v. The State,
5 Misso. 538.

1 The State v. Barfield, 8 Ire. 344;
The State v. Nash, 7 Iowa, 347; The
State v. Floyd, 15 Misso. 349 ; People v.
Baker, 1 Cal. 403; The State v. Wor-
rell, 25 Misso. 205, 207 ; Shifflet v. Com-
monwealth, 14 Grat. 652; Golden v.
The State, 13 Misso. 417; Reed v. The
State,11 Misso. 379 ; The State v. Byrne,
24 Misso. 151; People » McCauley, 1
Cal. 379. The testimony, on an appli-
cation for a change of venue, is some-
times taken orally. Mask v. The State,
32 Missis. 405. It has been held in Illi-
nois, that the change may be made by
consent. People v. Scates, 3 Scam. 351.
Where a prisoner filed a suggestion and
affidavit for the removal of his case from
the Baltimore city court to the criminal
court, it was held, that the jurisdiction
of the former court was not ousted until
the passage of the order for such remov-
al, previous to which time the prisoner
had the right, in either court, to with-
draw his suggestion, — a doctrine which
would probably apply to a change of
venue. Manly v. The State, 7 Md. 135.

2 People v. Webb, 1 Hill, N. ¥. 179;
People v. Baker, 3 Parker C. C. 181.

[79]
§ 115 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

need of a second arraignment and plea in the second county.?
Yet if in the second county he is arraigned and pleads again,
this double arraignment cannot be assigned for error. It has
been said to be a safe and judicious practice, to require the
plea of not guilty to be given in before the change of venue is
awarded.? The removal to the second county must take place
before the commencement of the trial ; in other words, before
the panel of twelve jurors is fully completed and sworn.?
The change is not necessarily to be made at the first term
of the court.£ When it is made, it has been held in Iowa, the
prosecuting attorney of the county is authorized, by virtue of
his office, to follow the cause into the new county, and conduct
the trial there. “ His jurisdiction is co-extensive with that
of the case, and should follow it to its final conclusion.” 5

§ 115. When several persons are jointly indicted, the
venue may be changed as to one, without being so as to the
rest.6 According to a Missouri case, if one only of two joint
defendants in an indictment applies for a change of venue,
the court to which the case is transferred gains no jurisdiction
over the other defendant.? In Alabama it has been held,
that, in such a case, the original papers must remain in the
court in which the indictment was found,’ and the defendant
who goes to the new county must be tried upon copies. In
Illinois, when an indictment was found against several jointly,
and the venue was changed to a second county on motion of
one of the accused, without the consent of the others; then,
when he was tried, the indictment was returned to the county
in which it originated, and the others were held to answer
there; the proceedings were declared to be regular? When

1 Vance v. Commonwealth, 2 Va. feited, it was error to discharge her on her

Cas. 162; Price v. The State, 8 Gill, 295,

2 Gardner v. People, 3 Scam. 83.

8 Price v. The State, supra.

* Bramlett v. The State, 31 Ala. 376.

5 The State v. Carothers, 1 Greene,
Iowa, 464.

6 The State v. Martin, 2 Ire. 101.

7 When, therefore, the second defend-
ant failed to appear in the second coun-
ty, and her recognizance so to do was for-

[80]

motion setting forth, that the venue had
never been changed with regard to her.
She should have been remanded for trial
to the county where she was originally
indicted. The State v. Wetherford, 25
Misso. 439.

5 As to this, in other cases, see ante,
§ 113, note.

® John v. The State, 2 Ala. 290,

10 Hunter v. People, 1 Scam. 453.
CHAP. VII] CHANGE OF VENUE. § 116

there is an application on behalf of the State for a change of
venue, and enough is shown to render such a change neces-
sary as to one of several defendants, the court will usually
send all the defendants to the new county, though they are
entitled to separate trials. So, at least, it appears from a case
before a single New York judge.t

§ 116. It was held in Alabama, that the section of the code
which requires defendants, after a change of venue, to be
tried on a certified copy of the indictment, neither impairs
the right of a trial by jury, nor violates any other principle of
the bill of rights.2 A few other points have come before our
American tribunals, but they are so local as to render it not
best to mention them here.

1 People v. Baker, 3 Parker C. C. 2 Bramlett v. The State, 31 Ala. 376.

181,
[81]
§ 118 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

CHAPTER VIII.

THE NAMING AND DESCRIBING OF THE DEFENDANT; AND, GEN-
; ERALLY, OF THE NAME IN CRIMINAL PLEADING.

§117. Tue subject of this chapter, if it were discussed in
full, would conduct us over a wide field of investigation,
where ancient and modern law would be found somewhat in
conflict, and even the adjudications of contemporary times
not quite harmonious with one another. In England, in
1826, the old law was modified by Stat. 7 Geo. 4, c. 64, § 19,
which provided, “that no indictment or information shall be
abated by reason of any dilatory plea of misnomer, or want of
addition, or of wrong addition, of the party offering such plea,
if the court shall be satisfied by affidavit or otherwise of the
truth of such plea; but in such case the court shall forthwith
cause the indictment or information to be amended according
to the truth, and shall call upon such party to plead thereto,
and shall proceed as if no such dilatory plea had been plead- ,
ed.” Other enactments followed in England; for instance,
in 1851, Stat. 14 & 15 Vict. c. 100, § 1, provided for amend-
ments in the body of the indictment to prevent an. acquittal
by reason of a variance between the names mentioned and
the proof, when the defendant would not be thereby preju-
diced as to any substantial rights of defence.!_ In like man-
ner; this whole subject has been legislated upon in this coun-
try, until now, in most of our States, the common law doc-
trines have become practically of but little importance. The
question of the constitutionality of this class of enactments
belongs to a chapter further on.

§ 118. Let us, however, look here a little at the doctrines
of our unwritten law. In 1822, in England, before the above
recited statute of Geo. 4 was passed, an unknown person was
arrested for an offence, and, says the report, “he refused to

[82]

1 See Greaves, Lord Campbell’s Acts, 1 et seq.
CHAP. VIII.] NAMING OF DEFENDANT, ETC. § 119

declare his name before the magistrate, and the prosecutors,
not being able to discover his name, indicted him as a man
whose name was unknown to the jurors. When called to the
bar, the indictment was read to him, and he then refused to
plead, and was remanded.” Various other steps were taken,
and intricacies occurred, when, “as this case appeared to be
without a precedent, and might materially affect the adminis-
tration of justice, the learned recorder requested the opinion
of the judges upon the following points: first, whether the
prisoner could be admitted to put a plea on the record with-
out a name ; secondly, whether such a plea should be treated
as a mere nullity, and the prisoner be remanded from time to
time, as in contempt for not pleading; thirdly, whether the
refusal to plead by name would entitle the court to enter up
judgment by default; and, fourthly, whether, in case the
prisoner should ultimately plead by name, the court could
proceed to try him upon this indictment, or should quash the
indictment as defective, and direct a fresh indictment to be
preferred against him by the name by which he might plead.”
When this matter came before the judges, some of them,
“before it was discussed, suggested that the prisoner might
be indicted as a person whose name was unknown, but who
was personally brought before the jurors by the keeper of the
prison. An indictment,” continues the report, ‘ was pre-
ferred accordingly, and the prisoner was convicted.” 4
§119. This case suggests for what object a name is re-
quired ; namely, to identify the person. Now, when a name
is used, it must be the true name, or the person is not identi-
fied. This proposition extends, not merely to the identification
of the defendant, but to that also of any other person men-
tioned. When the defendant is not correctly named, he must
take advantage of the error by plea in abatement, and, in the
plea, state what his true name is ; for, if he does not do this,
he will be conclusively holden to be the person in the indict-
ment mentioned, whatever may be the real fact.? But when

1 Rex v. , Russ. & Ry. 489. 377; Commonwealth v. Dedham, 16
292 Hale P.C. 238; 1 Chit. Crim. Mass. 141, 146.
Law, 202; The State v. Duestoe, 1 Bay,

 

[83]
§ 120 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

the mistake is in the name of some third person mentioned in
a material allegation of the indictment, the error becomes
fatal at the trial, by creating a variance between the allega-
tion and the proof.+

§ 120. According to some old cases, a person can have but
one Christian name, or, if hé has more, the law regards but
one So it seems; and, in the United States, this absurd
doctrine of the English law has been followed, to a greater or
less extent. Therefore, according to some cases, the inser-
tion or omission of a middle name is immaterial, and it may
be disregarded? But other cases hold, that, though the mid-
dle name need not be inserted, yet, if it is attempted to be,
and the wrong middle name or middle initial is given, the
defect will be fatal. The middle initial or middle name is
not deemed to be any part of either the Christian or sur-
name ;° therefore, where the indictment named the defend-
ant as William Martin, and on a plea in abatement the true
name was shown to be John William Martin, the objection
was allowed to prevail. Said McBride, J.: “It has been
held, and we think correctly, that the middle name of an in-
dividual forms no part of the Christian name. If this be cor-
rect, then the indictment cannot be sustained, as it only sets
out the middle name, and does not give the Christian name
at all.’® The thoughtful reader has already considered
within himself, that, under the circumstances of the present
times and in this country, these several distinctions are with-
out foundation in legal principle. The object of using a
name is to designate the person ; but, with us, at this day, the
middle name or middle initial is almost always important,
and is as well understood in the community as any other part
of the name. Many men ordinarily write their middle names
in full, and are familiarly called by those names, while the
first name is designated only by the initial letter.”

1 1 Chit. Crim. Law, 216. * Price v. The State, 19 Ohio, 423;

° Rex v. Newman, 1 Ld. Raym. 562; The State v. Hughes, 1 Swan,Tenn. 261.
And see Co. Lit.3a; 1 Stark.Crim Pl. 5 The State v. Manning, 14 Texas,

2d.ed. 46. 402; People v. Cook, 14 Barb, 259.
8 Edmundson v. The State, 17 Ala, ° The State v. Martin, 10 Misso. 391.
179; The State v. Smith, 7 Eng. 622. 7 It seems to me, that Walden v. Hol-

[84]
CHAP. VIII. ] NAMING OF DEFENDANT, ETC. § 121

§ 121. Says Starkie: ‘ According to some authorities, the
defendant was bound to answer to an indictment for felony,
though his name of baptism was mistaken. According to
others, no advantage could be taken of a mistake in the sur-
name, though there might be a mistake in the Christian
name. But Lord Hale was of opinion, that it was safest to
allow a plea of misnomer of either Christian name or sur-
name.”+ But, said Bay, J.,in a South Carolina case, “ the
distinction between Christian and surnames, though sup-
ported by authorities, seems to the court to be unsupported
by reason.” Therefore it was held that a plea of misnomer
of either name was good ;? and this is believed to be every-
where the American doctrine.? Where one who habitually
uses initials for his Christian name, is so indicted, and the

man, 6 Mod.115,s. c. Holman v. Wal-
den, 1 Salk. 6, is a case by no means
modern, almost sustaining the point
that a man may have two Christian
names. Said ‘ Holt, C. J. and the rest
of the court,” according to the report in
Modern: ‘Nor is it true that one bap-
tized by the name of John, cannot be
known by another name. Sir Francis
Gawdy acquired a new name by his con-
firmation, without, as Holt, C. J. said,
losing his Christian name ; at least, he
said, he was not satisfied that his name
of baptism did cease upon his taking
anew name of confirmation, as Powell,
J. would haveit.” See also Weleker v.
Le Pelletier, 1 Camp. 479. When, with
us, a child is named in his infancy John
William, for instance, and he is always
afterward known as John William,
with the addition of his father’s sur-
name, it is but matter of common sense
to say, that William is just as much a
partof his nameas John. If he was fa-
miliarly called John, without the Wil-
liam, and was known by the name of
John as well as by the name of John Wil-
liam, then it should be deemed sufficient
to describe him in the indictment either
way. And see Rex v. Brinklett, 3 Car.
& P. 416; Rex v. , 6 Car. & P.

VOL. I. 8

 

408; Rex v. Berriman, 5 Car. & P. 601.
In accordance with this view, where, in a
Massachusetts case, the defendant was
indicted by the name of Thomas Per-
kins, and he pleaded in abatement that
his name was Thomas Hopkins Perkins,
to which plea the attorney for the Com-
monwealth demurred, the court held that
the objection was well taken, and the
demurrer could not be sustained. ‘ The
indictment,” said the court, “ must give
the defendant his right Christian name.”
Commonwealth v. Perkins, 1 Pick. 388.
Likewise, in the same State, it was held
that Charles Jones Hall was not proper-
ly enrolled in the militia under the name
of Charles Hall. Said Morton, J.:
“Charles Jones is the respondent’s
Christian name. It needs no argument
to prove, that Charles and Charles
Jones are different names.” Common-
wealth v. Hall, 3 Pick, 262, 263. And
see The State v. Homer, 40 Maine, 438;
Hayney v. The State, 5 Pike, 72; The
State v. Dudley, 7 Wis. 664. But see
The State v. Houser, Busbee, 410.

1 1 Stark. Crim. Pl. 2d ed. 45, 46.

2 The State v. Lorey, 2 Brev. 395.

3 The State v. Hand, 1 Eng. 165;
People v. Kelly, 6 Cal. 210; Gabe v.
The State, 1 Eng. 540.

[85]
§ 122 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

fact whether he be so known is put in issue, and he is con-
victed, the court will notinterpose. So it hasbeen held in South
Carolina;! and, in Ohio, it was very properly decided that
such an indictment was good after verdict ;? but the court
added, that “‘a plea in abatement would have been fatal to
it’? In New Hampshire it was held, that, where surnames
with a prefix to them are ordinarily written with an abbrevi-
ation, the names thus written in an indictment are sufficient.
It was observed: “‘ The abbreviation complained of in the in-
dictment is the writing of the original name of the former
wife as McKusic; but this has become the more ordinary
spelling, or at least writing, of names with such a prefix, and
custom must govern in this respect.” 4

§ 122. When the name of the defendant is not certainly
known, the pleader, doubting whether he is to be called by
the one or the other of two or three names, employs what is
called an alias dictus, using both or all the names.6 And it
appears, that, if any one of the names thus laid is the true
one, the indictment cannot be abated.6 But for the reason
that a person cannot have two Christian names,’ an indict-
ment against Elizabeth Newman, alias Judith Hancock, was
quashed.’ Also because, in England, at the time the decision
was rendered, an addition was necessary,’ the following in-
dictment was quashed: “that James George Harrold, other-
wise Semple, otherwise Kennedy, laborer,” &c. ;° the word
* laborer,”’ which is the addition, in this case, referring only
to Kennedy, and not to Semple or to Harrold." The reader,

1 City Council v. King, 4 McCord,
487.

2 See ante, § 119.

8 Smith v. The State, 8 Ohio, 294.

* The State v. Kean, 10 N. H. 347,
351.

5 The form is as follows :

That John Richardson, of &c., laborer, other-
wise called John Baldwin, of &c., Esquire. See
2 Chit. Crim. Law, 2.

® Chitty states the doctrine thus : “If
a defendant be indicted with an alias
dictus, he cannot plead in abatement
that he was not known by such name ;

[86]

but, if he do, the prosecutor must de-
mur, and not move to quash the plea.”
1 Chit. Crim. Law, 446.

7 Ante, § 120.

8 Rex v. Newman, 1 Ld. Raym. 562.

® See post, § 129, 130

1 Rex v. Semple, 1 Leach, 4th ed.
420. s. p. Fusse’s case, Cro. Eliz. 583.

i 2 Hale P.C.177. Lord Hale in this
place says: “ Regularly the addition re-
fers to the last antecedent; and, upon
the same reason it is, if the indictment
runs Sibilla B. nuper de C., uxor Jo-
hannis B. nuper de C., spinster [it will
CHAP. VIL] NAMING OF DEFENDANT, ETC. § 124

consulting his statutes, and looking at the foregoing sections
of this chapter, will judge how far these authorities are
applicable in his own State.

§ 123. Obviously an indictment against a corporation prop-
erly uses, to describe the defendant, the corporate name. For
this purpose, the words “ The Vermont Central Railroad
Company, a corporation existing under and by force of the
laws of this State, duly organized and doing business,” were
held, in Vermont, to be sufficient.” And in Massachusetts,
the words, “ The town of Dedham, in said county of Nor-
folk,” instead of ‘‘the inhabitants of the town,” &c., were
held to be well enough.2. When, pending an indictment
against a town, the name of the town was changed by act of
the legislature, the court refused to quash the indictment for
that cause. It was deemed that the case could properly go
on to judgment and sentence, in the old name.’ Says Star-
kie: “In some instances an indictment at common law is
good without naming any person certain, as if it state a
highway to be out of repair through the default of the inhab-
itants, without naming them” ;* but this refers to the case
of. an indictment against a parish or town, which undoubt-
edly must be named.’

§ 124. The name by which the prisoner is described need
not necessarily be his name of baptism ; if he has assumed it,
yet has become known by it, that is sufficient. Still he may
be equally well described by what may be termed, in contrast,
his right name.’ <A bastard does not as of course bear his

be insufficient ]; because spinster is an
addition applicable to the husband, as
well as to the wife. But an indictment
of John B. vir. Emelin B., nuper de C.,
yeoman, is good; because yeoman is
not applicable to a woman, but to a
man.”

1 The State v. Vermont Central Rail-
road, 28 Vt, 583.

2 Commonwealth v. Dedham, 16
Mass. 141,147. Where, in South Car-
ofina, one was indicted for counterfeit-
ing a bill on a bank incorporated by the
name of the “‘ President and Directors

of the Bank of South Carolina,” but
the bill produced at the trial was of the
“ Bank of South Carolina,” the -evi-
dence was held not to support the in-
dictment. The State v. Waters, 3 Brev.
507, 2 Tread. 669.

3 Commonwealth v. Phillipsburg, 10
Mass. 78.

£1 Stark. Crim. Pl. 2d. ed. 47.

5 2 Hawk. P. C. c. 25, § 68; 1 Chit.
Crim. Law, 203.

6 Rex v. Norton, Russ. & Ry. 510.

7 Rex v. Williams, 7 Car. & P. 298.

[87]
[BOOK I.

§ 126

mother’s surname; in pleading, it is to be applied to him
only after he has acquired it by reputation.?

§ 125. The word “junior” is no part of a person’s name ;?
and it seems not to be material that it is altogether omitted,
in cases where usage would render its insertion justifiable ;#
or that it is inserted, in describing a person who is not known
as the younger.

§ 126. The law does not take notice of orthography ;5
therefore, if a name is misspelled,® no harm to the prosecu-
tion can come from this, provided the name as written in the
indictment is idem sonans, as the books express it, with the
true name.’ It is sometimes a nice matter to determine
when the names are of the same sound; and the courts do
not, in this matter, hold the rule of identity with quite a
strict hand. Among names which have been held to be idem
sonans, are Blackenship and Blankenship ;* Whyneard and
Winyard, pronounced Winnyard ;® Michael and Michaels ;
McInnis and McGinnis ;" Edmindson and Edmundson ;%
Deadema and Diadema; Conly and Conolly; 14 Hutson and
Hudson ;45 Chambles and Chambless. In pronouncing the
decision in the last-mentioned case, Stone, J. said: “The
books abound in hair-breadth distinctions; but we apprehend.

PLEADING AS RESPECTS THE INDICTMENT.

1 Rex v. Clark, Russ. & Ry. 358.
And see 1 Russ. Crimes, Grea. ed. 656;
Rex v. Smith, 6 Car. & P. 151, 1 Moody,
402. An illegitimate child, six weeks
old, was baptized on a Sunday; and
from that day to the following Tuesday
was called by its name of baptism and
its mother’s surname. This was held to
be sutficient evidence to warrant the ju-
ry in finding, that the deceased was pro-
perly described by those names in an
indictment for murder. Reg. v. Evans,
8 Car. & P. 765.

2 Cobb v. Lucas, 15 Pick. 1, 7; Kin-
caid v. Howe, 10 Mass. 203, 205 ; Com-
monwealth v. Perkins, 1 Pick. 388 ;
People v. Collins,7 Johns. 549 ; Brainard
v. Stilphin, 6 Vt. 9; People v. Cook, 14
Barb. 259.

3 Jackson v.

164.
[88]

Prevost, 2 Caines,

* Commonwealth v. Perkins, 1 Pick.
388.

5 See ante, § 60, 61.

§ 2 Hawk. P. C. c. 27, § 81.

7 Tibbets v. Kiah, 2 N. H. 557; Pe-
trie v. Woodworth, 3 Caines, 219 ; Com-
monwealth v. Gillespie, 7 S. & R. 469;
The State v. Upton, 1 Dev. 513; Rex
v. Shakespeare, 10 East. 83.

8 The State v. Blankenship, 21 Misso.
504,

9 Rex v. Foster, Russ. & Ry. 412.

1 The Statev. Houser, Busbee, 410.

11 Barnes v. People, 18 Ill. 52.

12 Edmundson v. The State, 17 Ala.
179.

18 The State v. Patterson, 2 Ire, 346.

M4 Fletcher v, Conly, 2 Greene, Iowa,
88.
18 The State v. Hutson, 15 Misso. 512;
Chapman v. The State, 18 Ga, 736.
CHAP. VII] NAMING OF DEFENDANTS, ETC. § 128°

the true rule to be, that, if the names may be sounded alike
without doing violence to the power of the letters found in
the variant orthography, then the variance is immaterial.” }
The following have been held not to be of the same sound,
within the rule: Donald and Donnel ;? Shakepear and Shake-
speare ;® Comeyns and Cummins.+

§ 127. Chitty says: “If two names are, in original deriva-
tion, the same, and are taken promiscuously in common use,
though they differ in sound, yet there is no variance.” 5 And
this proposition comes from the fact, that, when one hears a
particular form of the name spoken, or sees it written, his
memory is impressed likewise with the other, and he em-
ploys the one or the other according to fancy or convenience,
just as he does any other synonymous terms in the language.
This principle was in some degree recognized in Missouri,
and Ryland, J. observed : ‘« Wilkerson and Wilkinson, like
the names of Robinson or Robertson or Roberson, Hudson or
Hutson, are so much alike in sound, so nearly the same in
original derivation, and so promiscuously taken in common
use, that the variance in orthography may be considered so
nearly nothing as that the law will not notice it.”® It is be-
lieved, however, that the principle itself goes much further
than it is carried by this Missouri illustration. Thus it is
said in Bacon’s Abridgement, that Piers and Peter have been
adjudged to be the same in pleading; because by some acts of
Parliament it appears they “ have been used promiscuously,
as signifying the same person.. So Saunders and Alexander,
Jane and Joan, Jean and John, Garret, Gerat, and Gerald,
are the same names.” ?

§ 128. If an indictment neither names the defendant nor
‘avers that his name is unknown, it is bad. ® But the methods

1 Ward v. The State, 28 Ala. 53. where the instances of this principle are
2 Donnel v. United States, 1 Morris, statéd at large.
141. 8 Wilkerson v. The State, 13 Misso.

8 Rex v. Shakespeare, 10 East. 83. 91.
4 Cruikshank v. Comyns, 24 Til. 7 Bac. Ab. Misnomer, A.
602. 8 Ante, § 118; Campbell v. The
5 1 Chit. Crim. Law, 203, referring State, 10 Ind. 420; The State v. Hand,
to 2 Rol. Ab. 185; Bac. Ab. Misnomer, 1 Eng. 165.
8* [89]
§ 180 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Ih

of proceeding against unknown defendants are pointed out in
the statutes of most of our States.+

§ 129. In England, in 1413, long before the settlement of
this country, the following Statute of Additions (1 Hen. 5,c.
5) was passed: “In every original writ of actions personals,
appeals, and indictments, and in which the exigent shall be
awarded, in the names of the defendants in such writs orig-
inal, appeals, and indictments, additions shall be made of
their estate or degree or mystery, and of the towns or ham-
lets or places and counties of which they were or be, or in
which they be or were conversant ; and, if by process upon
the said original writs, appeals, or indictments, in which the
said additions be omitted, any utlagaries be pronounced,
that. they be void, frustrate, and holden for none; and that
before the utlagaries pronounced, the said writs and indict-
ments shall be abated by the exception of the party, wherein
the same the said additions be omitted. Provided,” &c.,—
the proviso having plainly no application to the law of our
own country in the present time.

§ 180. The reader observes, that, by the terms of this stat-
ute, its provisions extend only to cases ‘‘ in which the exigent
shall be awarded.”2 The exigent was the first process in
outlawry, to be issued when the defendant was not found, or
did not give himself up; and upon it certain forfeitures, as
well,as outlawry, followed. But we have seen,‘ that out-
lawry and these forfeitures are at present unknown in the
United States. There is therefore no scope, with us, for the
operation of this statute.6 At the same time, it seems to

1 And sce ante, § 118.
2 This view of the statute rests as

5 In an Indiana case, where the court
held it to be unnecessary in an indictment

well in adjudication as in its plain terms.
Thus in Lord Dacre’s case, Cro. Eliz.
148, “he was indicted for encroaching
upon the highway ; and exception taken
because it was not expressed of what
place he was. Sed non allocatur, for
the process of outlawry licth not against
him, but distress.”

8 Jacob Law Dict. tit. Exigent.

* Crim. Law, I. § 738-741.

[90]

to add to the name of the defendant his
degree or mystery, and the place of his
residence, Dewey, J. observed : “ By the
common law, no addition was required
in indictments against persons under
the degree of a knight. The statute of
additions, 1 Hen. 5,c. 5, enacts, that
defendants shall be described by adding
to their names their estate, degree, or
mystery, and place of residence, in all
CHAP. VIII.] NAMING OF DEFENDANTS, ETC. § 180

have been regarded as of force in Maryland} and Pennsylva-
nia ;? while, on the other hand, it has been held not to be of
force in Indiana.? Likewise, the indictment has been ad-
judged ill in Virginia, by reason of the addition to the name
of the defendant being wrong;* not ill, for causes of this
sort, in North Carolina,’ Alabama, and Georgia.’ Some of
the decisions here referred to were founded on statutes ; and
it is believed, that, at the present time, in consequence of ex-
press statutory provisions, or of judicial interpretations of’
common law doctrines, the indictment, in nearly or quite
every one of our States, is good though it omits to give the
residence of the defendant, and makes no mention of his

degree or mystery.

cases in which ,the exigent shall be
awarded. It has been held, in the con-
‘struction of this statute, that, in prose-
‘cutions which cannot be attended by
the process of outlawry, the indictment
need not give the addition of the de-
fendant. The exigent, being a step in
the proceedings of outlawry, is unknown
toourlaw. Itis therefore evident, that
the statute of additions, from its own
terms, is not applicable to prosecutions
in this State ; and it is equally clear,
that the common law does not require
the defendant to be described by his ad-
dition in our indictments.” The State
v. McDowell, 6 Blackf. 49.

1 Kilty Rep. Statutes, 226, where the
case of The State v. Hughes is mention-
ed ; Hughes was indicted for an assault
without an addition to his name; and

his plea in abatement, setting out this
defect, was held to be good. Says Kil-
ty: “A reference was made by one of
the judges to several acts of assembly,
in which the process of outlawry was
mentioned.” I presume this is the same
case which is reported, The State v.
Haghes, 2 Har. & McH. 479, though
the latter report is less satisfactory than
Kilty’s.

2 Report of Judges, 3 Binn. 599, 615.

3 The State v. McDowell, supra.

4 Commonwealth v. Clark, 2 Va. Cas.
401.

5 The State v. Newmans, 2 Car, Law
Repos. 74.

6 Morgan v. The State, 19 Ala. 556.

7 Studstill v. The State,7Ga.2. As
to Maine, see The State v. Nelson, 29
Maine, 329.

[91]
PLEADING AS RESPECTS THE INDICTMENT.

§ 182 [BOOK II.

CHAPTER IX.

THE INDORSEMENT OF THE PROSECUTOR’S NAME ON THE
INDICTMENT.

§ 181. Tur efficacy of every indictment comes from the
finding of the grand jury. Yet there is ordinarily some per-
son who, in a manner distinguished from the rest of the wit-
nesses, may be deemed the prosecutor. This is particular-
ly so in England, where there are no prosecuting attorneys
such as we have in the United States; there the party who
received the injury is usually, though not necessarily, or al-
ways, the person who puts the machinery of the law in mo-
tion, and is known as the prosecutor.}

§ 182. The prosecutor is, at the common law, under some
liabilities ; as, for instance, if the prosecution was both mali-
cious and without probable cause, the prisoner, on being ac-
quitted, may maintain against him a civil action for damages.?
Also he has some advantages. And in addition to what is
imposed on and granted to him by the common law, the stat-
utes of some of our States have made him liable for costs in
certain contingencies, and given him perhaps some special
privileges. Therefore, in some of the States, the statute also
requires that his name shall appear indorsed on the indict-
ment. In a part of these States, the indorsement need be

only on certain indictments,

1 See 1'Chit. Crim. Law, 1 et seq.

2 1 Chit. Crim. Law, 9, 10.

8 As to when the indorsement is re-
quired, and when not, see Mc Waters v.
The State, 10 Misso. 167 ; The State v,
McCourtney, 6 Misso. 649 ; The State
v.,Hurt, 7 Misso. 321 ; United States
v. Flanakin, Hemp. 30; Lucy v. The
State, 8 Misso. 134 ; The State v. Brown,
5 Eng. 104; Wortham v. Common-
wealth, 5 Rand, 669; The State v. Rob-

[92]

not on all.?

inson, 9 Fost. N. H. 274 ; Common-
wealth v. Bybee, 5 Dana, 219; The
State v. Moles, 9 Misso. 685 ; Common-
wealth v. Gore, 3 Dana, 474; The
State v. McCann, 1 Meigs, 91; United
States v. Mundel, 6 Call, 245. The
Pennsylvania act is construed not to
require an indorsement on all indict-
ments, but only where a prosecutor real-
ly exists. Rex v. Lukens, 1 Dall. 5.
CHAP. IX.] INDORSEMENT OF PROSECUTOR'S NAME. § 134

§ 133. Said the learned judge in an Alabama case: “ The
act of 1811, which enacts, that ‘it shall be the duty of the At-
torney-General to mark on all bills of indictment the name of
the prosecutor,’ has been long regarded as merely directory
to the Attorney-General; and the omission does not at all
affect the validity of the indictment.”! In Florida, it is oth-
erwise ; and an indictment on which there is no name of a
prosecutor indorsed, is liable to be quashed.? So, in most of
the other States in which this indorsement is required, its
omission is, either by judicial interpretation, or by the ex-
press words of the statute, fatal to the indictment.?

§ 134. Ifthe indictment is properly indorsed in the first
place, it does not abate though the indorser dies before the
trial. The foreman of the grand jury may be a sufficient in-
dorser ;5 and, in North Carolina, the prosecuting officer has
a discretionary power to put on the governor’s name as pros-
ecutor, whenever he thinks the public interest requires it.®
But it has been held in Tennessee, that a married woman
cannot be the indorser ; because, “ she being wholly irrespon-
sible in law, either for costs or damages, the indorsement of
her name was no compliance with the true meaning of the

statute.’ 7

1 The State v. Hughes, 1 Ala. 655, 656,
opinion by Collier, C.J. And see as
to Virginia, Commonwealth v. Dever,
10 Leigh, 685.

2 Towle v. The State, 3 Fla. 202.

8 Moore v. The State, 13 Sm. & M.
259 ; Peter v. The State, 3 How. Missis.
433; The State v. Joiner, 19 Misso.
224 ; Commonwealth v. Gore, 3 Dana,
474. In Mississippi, the want of indorse-
ment may be taken advantage of at any
time. Kirk v. The State, 13 Sm. &M.
406. And the indorsement must be made
before the indictment goes to the grand
jury ; atleast it is too late after verdict.
Moore v. The State, 13 Sm. & M. 259;
Allen v. Commonwealth, 2 Bibb. 210.
So, in Tennessee, the Statute provides,
“ that, if a bill of indictment be prefer-
red contrary to the provisions of this
act, the party so indicted may give

the act in evidence, and the court shall
order him to be discharged.” Therefore
the defendant need not plead the want
of an indorser in abatement, but he
may take advantage of the defect at any
time. Medaris v. The State, 10 Yerg.
239. In one case, where the indorsement
was by a married woman, the objection
to her competency was taken by plea in
abatement. Moyers v. The State, 11
Humph. 40. In Kentucky, the defend-
ant, to avail himself of the objection,
must raise it before the verdict is return-
ed. Hayden v. Commonwealth, 10 B.
Monr. 125.

£ Commonwealth v. Cunningham, 5
Litt. 292.

5 King v. The State, 5 How. Missis.
730.

® The State v. English, 1 Murph. 435.

7 Moyers v. The State ,11 Humph. 40.

[93]
§ 185 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

§ 185. The indorsement may be good in law, whether writ-
ten on the face of the indictment, or on the back, or on any
other part of it! It appears to be the custom in some States
to set the indorser’s name at the foot.? And there is no pre-
cise form of words necessary to show that the person named
is the indorser ; any words which convey the idea are suffi-
cient. According to a Kentucky case, a motion to strike off
a prosecutor’s name, or release him, should be very cautious-
ly received. Ifit is put on without authority, he may have
redress by a special action on the case.*

1 Williams v. The State, 9 Misso. %* Commonwealth v. Dove, 2 Va. Cas.
268. 29; The State v. Denton, 14 Ark. 343 ;

°2 Allen v. Commonwealth, 2 Bibb. Haught v. Commonwealth, supra.
210; Haught v. Commonwealth, 2 Va. * Bartlett v. Humphreys, Hardin, 513.

Cas. 3.
[94]
CHAP. X.] INDORSEMENTS BY THE GRAND JURORS, ETC. § 138

CHAPTER X.

INDORSEMENTS BY THE GRAND JURORS AND THE PROSECUTING
OFFICER...

§ 186. Ir does not belong to this chapter to consider the
proceedings before the grand jury ; but it may be here in gen-
eral terms observed, that, in England, the grand jurors hav-
ing met before the judge, taken the oath of their office, and
received from him such instructions concerning their duties
as he has to give them, retire to an apartment by themselves,
and there hear witnesses to sustain specific charges which
have been made against particular persons named. These
charges are delivered to them drawn out in due legal form,
and engrossed on parchment.1 A set of charges thus pre-
ferred against a particular person or collection of persons, is
called a bill ;? and, when found by the grand jury to be true,
it is called an indictment.

§ 187. In the United States, the course is the same in sub-
stance as is thus described. In minute particulars it seems
to differ somewhat in the different States; but in most of
them the prosecuting attorney for the State attends the grand
jury, and advises them in their deliberations; he does not
draw the indictments in advance, but, in each case, when the
evidence has been heard, he frames such an indictment as they
are prepared to find.?

§ 188. In both countries, before the grand jury enter upon
their deliberations there is one from their own number chosen
by themselves, or appointed by the court, to be their foreman,
who to a certain limited degree acts as the representative of
the body. Ifthe grand jury find a bill to be true, the fore-
man or their clerk indorses on it the words * A true bill” ;

1 Ante, § 60; Dears. Crim. Process, 8 And see Webster’s case, 5 Greenl.

85 ; 1 Gude Crown Pract. 84. 432 ; Commonwealth v. Smyth, 11
2 1 Chit. Crim. Law, 163. Cush, 473.
[95]
§ 140 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

if they find it not to be true, in the English practice, the
words “ Not a true bill,” or ‘* Not found,” are indorsed on it
instead of the other. We are now prepared to consider
more minutely some questions which have arisen.

§ 139. The usual course with us is for the foreman, when
an indictment is found, to write under the words “ A true
bill,” his own name, adding his official title of Foreman of the
Grand Jury. But suppose he simply writes his name, mak-
ing no mention of his official character, the indorsement is
still sufficient ; for, as observed in one case, ‘It appears upon
this record [uamely, the record of the court], that William
Bullock was foreman of the grand jury when the bill was
found ; and, therefore, if no letters had been added after his
name, his subscription to the indorsement could only be re-
ferred to his official act as foreman.” And, for a like rea-
son, where the record of the foreman’s appointment states his
name at length, if, in subscribing a bill, he writes only the
initial letters for his first name, this is sufficient.2 It is not
material whereabouts in the indictment the signature of the
foreman is placed.*

§ 140. An indictment thus made and signed fully meets
the demands of the law.6 And if the article “a” is omit-

11 Chit. Crim. Law, 324.

2 The State v. Chandler, 2 Hawks,
439, 440, opinion by Taylor, C.J. And
see post, §143; McGuffie v. The State,
17 Ga. 497. In The State v. Brown, 31
Vt. 602, 603, where the doctrine of the
text was held, Alidis, J. observed : “ The
court appoint the foreman, and the ap-
pointment should in all cases be made
a matter of record, so that an inspec-
tion of the records will always show
who is the foreman.” In Missouri it
has been held, that an indictment in-
dorsed a true bill, and returned by the
authority of the whole grand jury, is
sufficient without the special appoint-
mentofaforeman. Friar v. The State,
3 How. Missis. 422; Peter v. The State,
3 How. Missis. 433.

® The State v. Collins, 3 Dev. 117;

[96]

The State v. Taggart, 38 Maine, 298,
where Appleton, J. added the following
other reason : “ There is no rule of the
common law, there is no statutory provi-
sion, rendering all official acts Void when’
signed with the initial letters of the Chris-
tian name of the public officer whose
signature may be required.” p. 300,
See also, Studstill v. The State, 7 Ga. 2.

* Overshiner v. Commonwealth, 2 B.
Monr. 344. Where an information, con-
taining one hundred counts, each count
having a distinct caption, was only sign-
ed at the close of the last count, and
upon the last page, but the pages were
connected together, the information was
held sufficient. The State v. Paddock,
24Vt. 312. Sce also to a like effect, Bur-
gess v, Commonwealth, 2 Va. Cas. 483.

5 Spratt v. The State, 8 Misso. 247 ;
CHAP. X.] INDORSEMENTS BY THE GRAND JURORS, ETC. § 141

ted, so that the indorsement will read “ True bill,” this has
been held not to be a material defect.1 Likewise in a Penn-
sylvania case, where the indorsement was “ A bill,” omitting
the word “true,” the court held that the sentence against the
prisoner was not therefore invalid; for, supposing the word
“true” to be necessary, still, said Gibson, C. J., “ the omis-
sion was one of those clerical slips which, it is well settled
the court has power, by the previous assent of the grand jury,
to amend.’’?

§ 141. In Illinois,’ and perhaps some of the other States, the
statute law appears peremptorily to require this indorsement
by the foreman of the grand jury ; and, when it is not made,
the proceedings become, the court observed in one case, co-
ram non judice.* In a Kentucky case the judge said: “ The
statute of 1814 requires no other indorsement to be made
upon an indictment but the words ‘a true bill.’”’ Therefore
it was held, that the signature of the foreman to these words
was unnecessary.© And on the general question, whether in
the absence of statutory direction there need be any indorse-
ment of any words whatever, or any signature by the foreman
or by the individual members of the grand jury, the authori-
ties are conflicting, and not altogether satisfactory. Yet the
doctrine best sustained by reason, and as well sustained by
authority as any other, is, that while the records of the court
must show, in some way, the grand jury’s sanction of the in-
dictment, yet their official and recorded act of returning it in-
to court, and there affirming it, while the affirmation becomes
in their presence matter of record, will dispense alike with sig-
nature and with the words “a true bill.”® The plain com-

McDonald v. The State, 8 Misso. 283 ;
Harriman v. The State, 2 Greene, Iowa,
270, The signature of the foreman of
the grand jury to an indictment, certi-
fying it to be a true bill, legally imports
that it was found by twelve or more
grand jurors. Turns v. Commonwealth,
6 Met. 224.

1 The State v. Elkins, 1 Meigs, 109 ;
The State v. Davidson, 12 Vt. 300.

VOL. I. 9

2 Sparks v. Commonwealth, 9 Barr,
354.

8 Gardner v. People, 3 Scam. 83.

# Namaque v. People, Breese, 109.
See The State v. Mertens, 14 Misso. 94 ;
Steele v. The State, 1 Texas, 142.

5 Commonwealth v. Walters, 6 Da-
na, 290.

6 In Maine it was held, on a motion
in arrest of judgment, that an indict-

[97]
§ 144

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK IL

mon sense and clear legal discernment of Holt, C. J. once
put the matter admirably as follows: “An indictment is not

ment not certified to be a true bill,
though signed by the foreman of the
grand jury, is bad. And Mellen, C. J.
observed : “ In the case of indictments,
had not immemorial and uniform us-
age established it as common law in
England and in this State, that the at-
testation of the foreman, in the manner
mentioned [that is, signing his name
under the words ‘a true bill’], should be
legal evidence of the truth of the bill, it
would be necessary for each member of
the grand jury, who voted in favor of the
bill, to sanction it as true by his individ-
ual signature.” Webster’s case, 5 Greenl.

432, 434. Now, as an original question, I -

cannot see why a grand jury must sign
an indictment any more than a petit ju-
ry must sign a verdict, to make the find-
ing good. Both juries belong to the
court, and the clerk of the court is their
clerk, the same as he is the clerk of the
judge, only he acts under the immediate
supervision of the judge. What he re-
cords as done by the judge need not be
signed by the judge, and the same is
true of his record of the finding of a
petit jury, and it is not easy to see how
the grand jury stand on any other or
different ground. In New Hampshire
it has been held, that an indictment
must be signed by the foreman of the
grand jury, The State v. Squire, 10 N.
H. 558 ; but that the words “a true
bill,” need not appear above his signa-
ture or elsewhere on the indictment.
The State v. Freeman, 13 N. H. 488.
The latter point has been adjudged
also in Massachusetts. Commonwealth
v. Smyth, 11 Cush. 473. The intima-
tion, in this case, that the point would
be decided otherwise in England, I can-
not but deem to be a mistake ; at all
events, it is contrary to the opinion of
Holt, C J. as quoted in the text. Still,
an Irish Judge, Perrin, sitting at nisi
prius, once made the following observa-
tions: “It is perfectly competent for

[98]

any. twelve of the grand jury, in the
unavoidable absence of the foreman, to
take into consideration and deal with
the respective bills of indictment ; but,
in every such case, it is essential that
every one of the twelve grand jurors
who have concurred in finding or reject-
ing any bill do sign his name thereup-
on. The foreman alone has the privi-
lege of signing for self and fellows.”
In re Grand Jury, 3 Crawf. & Dix C.
C. 895. In the latter of the two New
Hampshire cases just cited, Gilchrist, J.
observed : “ With us the accusation does
not take the form, first of a bill, then of
an indictment, but it exists only as the
latter. We have held, that the signature
of the foreman of the grand jury should
be affixed to the indictment, and that
nothing short of such authentication
should be regarded as competent evi-
dence of their proceedings. If anything
more than the signature of the foreman
could be necessary to prove that the in-
strument signed by the prosecuting offi-
cer is authorized by the grand jury, the
certificate should be ‘a true indictment,’
rather than ‘a true bill.” As these words
are merely a form, and moreover an in-
correct form ; and as the reason for them
does not exist here, we think that their
omission is not a ground for arresting
the judgment,” p. 490. According to
an Alabama case, if it appears of record
that a grand jury elected, impanelled,
sworn, and charged, returned a bill of
indictment, it will be intended to have
been done regularly until the contrary
is shown by plea. The State v. Lassley,
7 Port. 526. And the principle govern-
ing this decision seems to cover the
ground of our text. So in Mississippi,
where it appeared by the record that a
foreman was appointed, and the indict-
ment was returned signed by him, and
the caption stated that the grand jury
returned the bill into court by their
foreman, it was held sufficient evidence
CHAP. X.] INDORSEMENT BY THE GRAND JURORS, ETC. § 142

an indictment till it be found, it is only a writing prepared
for the ease of the jury.and for expedition ; it is nothing till
it is found, for the jury make it an indictment by finding it ;
they may alter what they please, or refuse it absolutely. And
if the jury, upon examining the witnesses, would only pre-
sent a matter of fact with time and place, the court might
cause it to be drawn up into form, without carrying it to the
jury. Again, there needs no billa vera; for that is only the
jury’s owning that which the court has prepared for them.” 1

§ 142. As the court has the superintendence of its records,
it will not allow a mutilated record to be imposed upon it by
the grand jury. This inquest may undoubtedly alter the bill,
as mentioned by Holt, C. J., and then return it as an indict-

that the bill was returned by authority
of the grand jury. Greeson v. The
State, 5 How. Missis. 33. True, this re-
lates to the matter of the record; and,
according to a Tennessee case, it must
appear by the record that the grand jury
returned the indictment into court “a
true bill.” This requisition is satisfied
by an entry showing, that the grand
jury brought in the bill, which, with its
indorsement, “a true bill,” is spread on
the record. Bennett v. The State, 8
Humph. 118. See also The State v.
Muzingo, 1 Meigs, 112; Gilman v. The
State, 1 Humph. 59 ; Brown v. The
State, 7 Humph. 155. The record must
show, that the grand jury returned the
indictment into court. Rainey v. Peo-
ple, 3 Gilman, 71. These, and other
like cases, lend countenance to the view
maintained in our text. But in some
of our States it has been expressly held.
Thus, in South Carolina, it was decided
not to be necessary for the indictment
to be signed by the foreman ; Johnson,
J. observing ; “It has long been acus-
tom in this state for the foreman of a
grand jury to sign their finding ; and,
perhaps, it would still be advisable to
adhere to it ; but I concur in the opin-
ion, that its being in writing, and hav-
ing been publicly announced by the
clerk, as is invariably the case, in the

presence of the grand jury, is a suffi-
cient guard against misconstruction or
perversion ; and, as there is no positive
law requiring it, that it is not essential-
ly necessary to its validity that it should
be signed by the foreman.”’ The State
v. Creighton, 1 Nott & McC. 256, 257.
To the same effect is a decision in Geor-
gia. McGuffie v. The State, 17 Ga. 497.
So, in North Carolina, neither a pre-
sentment nor an indictment need be
signed by any ‘one. Publicly returning
them into court, and causing them to
be there recorded, render them effectual.
The State v. Cox, 6 Ire. 440. And see
the earlier case of The State v. Collins,
3 Dev. 117. The same doctrine has
been strongly intimated in Kentucky.
Commonwealth v. Ripperdon, Litt. Sel.
Cas. 194; Commonwealth v. Walters,
6 Dana, 290. And in Missouri, where
the statute expressly provided that the
foreman should certify every indictment
found, to be a true bill, on the indict-
ment itself, the statute was construed
to be only directory, and an indict-
ment which did not bear the foreman’s
name was held, on a motion in arrest of
judgment, to be good. The State v.
Mertens, 14 Misso. 94.

1 Rookwood’s case, 13 Howell St.
Tr. 139, 159.

[99]
§ 143 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

ment found; and to do so would accord with the prevail-
ing American practice, wherein the indictment is not drawn
until the jury has determined what to find. But where this
practice does not exist, the English and American usage is
as follows: “ After the grand jury have heard the evidence,”
says Chitty, “they are to decide whether the bill shall be
found or rejected. In the finding, twelve of the jurymen, at
least, must concur ; but, if the rest of the jury dissent, the
finding will still be valid. The jury cannot find one part of
the same charge to be true, and another false, but they must
either maintain or reject the whole; and, therefore, if they
indorse a bill of indictment for murder, Dilla vera se defen-
dendo, or billa vera for manslaughter and not for murder,
the whole will be invalid, and may be quashed on motion.
It has indeed been said, that, ifa grand jury find a bill for
manslaughter on an indictment for murder, the words ‘of
malice aforethought’ and ‘did murder’ may be struck out;
and the indictment amended by reducing it to a mere accusa-
tion of the inferior offence, in the presence of the jury. This,
however, seems questionable; and it is agreed, that it is the
safer course to prefer a fresh indictment for manslaughter ;
and so where the bill is originally for burglary, to prefer an
indictment for theft, which is, in substance, included. This
rule does not extend to the finding of different counts ; for,
as each count contains a distinct charge, the jury may return
a true bill upon one of them only, and the finding will be as
valid as if no other had ever been inserted. And an indict-
ment against several may be found against one or more, and
rejected as to the rest.””"1_ Where the bill was in ten counts,
and the indorsement by the grand jury was “ A true bill on
both counts,” the finding was ruled to be insufficient, being
too uncertain and indistinct.?

§ 148. In some of our States, it is customary for the pub-

1 1 Chit. Crim. Law, 322, 323. sault, find “A. guilty of a riot,” it isa

2 Reg. v. Cooke, 8 Car. & P. 582. partial finding of the whole count, and
On the subject of this section we have void. The State ». Creighton, 1 Nott
the following American decisions: In & McC. 256. Also, if a bill for assault
South Carolina it was held, that, if and battery contains but one count, the
grand jury, on a count for riot and as- grand jury cannot find a true bill as to

[100]
CHAP. X.] INDORSEMENT BY THE GRAND JURORS, ETC. § 144

lic prosecuting attorney to sign the indictment. But this is
not, as a general proposition, legally essential to its validity.}
Yet there are States in which it is made by statute essential ;
and, though in such States this officer will usually append to
his name the official character in which he signs, yet it seems
to follow, from principles already mentioned, that this is not
essential, but that, if he simply writes his name, he will be
understood to act in his official capacity.? An indictment
signed ‘“ Nathaniel Baxter, Attorney-General,” was held to
be sufficient, without mentioning the district for which he
was attorney-general.2 But where the attorney appended to
his name “ Solicitor-General,” instead of “Attorney-General,”
there being no such office known to the laws as that of solic-
itor-general, this signing was held not to be adequate. Said
Turley, J.: “ All documents required to be authenticated by
the signature of public officers must be certified by them in
their public character. A judge must authenticate the records
of his court; if he signs his name as Attorney-General, the
authentication isa nullity. So an Attorney-General must au-
thenticate, by his signature, to a bill of indictment; if he signs
his name as Solicitor-General, the indictment is a nullity.” *
§ 144. Of course, if there is a prosecuting officer, as a dis-
trict attorney, pro tem., the indictment may be signed by him
as such... And in most circumstances when one acts as such
officer, pro tem., his appointment will be presumed, in the
absence of proof to the contrary, to have been duly made.°

the assault, and no bill as to the bat- 1 Keithler v. The State, 10 Sm. & M.

tery; the finding must be general, on
the whole charge, as set out in the bill.
This was so decided on a motion in ar-
rest of judgment. The State o. Wil-
burne, 2 Brev. 296. So, in Tennessee,
an indictment was quashed, where the
indorsement was, “A true bill as to the
assault and battery, not a true bill as to
the felonious intent” ; the count having
been for an assault with intent to com-
mit murder. ‘“ Where there are separate,
distinct counts in the indictment,” said
the court, “the rule is otherwise.” The
State v. Wilhite, 11 Humph. 602.
9*

192; Ward v. The State, 22 Ala. 16 ;°
Anderson v. The State, 5 Pike, 444,
453; Thomas v. The State, 6 Misso.
457 ; Harrall v. The State, 26 Ala. 52;
Eppes v. The State, 10 Texas, 474.

2 Ante, § 139.

8 The State v. Brown, 8 Humph. 89 ;
The State v. Evans, 8 Humph. 110.

4 Teas v. The State, 7 Humph. 174.
5 Reynolds v. The State, 11 Texas,
120. "

8 ¥sham v. The State, 1 Sneed, 111 ;
Eppes v. The State, 10 ‘Texas, 474.

[101]
§ 146 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

CHAPTER XI.

THE INTRODUCTORY PART OF THE INDICTMENT, AND THE CAPTION.

§ 145. We have already seen,! that it is customary, in
England and in this country, to write the name of the county,
and sometimes also the name of the State, in the upper mar-
gin of the indictment. Next to the name of the county fol-
low, in the English practice, the words: ‘The jurors for our
lady the queen on their oath present, that,” &c.2_ This mat-
ter seems to be termed, in the English books, if it has a name,
the commencement ; it is never called the caption. The bill
which is presented to the grand jury, and by their finding be-
comes the indictment,® has on it, in the English practice, this
introductory matter, and no more.

§ 146. What is called the caption may be explained as fol-
lows: Says Starkie, —“‘ Where an inferior court, in obedience
to a writ of certiorari from the King’s Bench, transmits the
indictment to the crown office, it is accompanied with a for-
mal history of the proceedings, describing the court before
which the indictment was found, the jurors by whom it was
found, and the time and place where it was found. This in-
strument, termed a schedule, is annexed to the indictment,
and both are sent to the crown office. The history of the
proceedings, as copied or extracted from the schedule, is
called the Caption, and is entered of record immediately be-
fore the indictment.” * The caption, therefore, in the case
pointed out. by Starkie, first appears in the court of Queen’s
Bench, being made up by the clerks of this court from the
schedule transmitted from the lower tribunal. Says Dickin-

1 Ante, § 100 et seq. 8 See ante, § 136 et seq.
2 Archb. New Crim. Proced. 76 ; 2 * 1 Stark. Crim. Pl. 2d ed. 233.
Chit. Crim. Law, 1 ; Dickinson’s Quar-
ter Sessions, 5th ed. 179, 931.
[102]
CHAP. XI] INTRODUCTORY PART AND CAPTION. § 149

son, treating of the practice of the quarter sessions, “It is not
put on the files of the court of quarter session, and is annexed
only on removal.” 4

§ 147. Consequently the caption is that part of the record
which comprehends the judicial history of the cause to the
time of the finding of the indictment. The following is the
form given by Lord Hale in Latin, and translated by later
writers :

“Norfolk. At a general sessions of the peace, holden at S. in the
county aforesaid, on the fifth day of October, in the twenty-fifth year
of the reign, &c., before A. B., C. D., and their fellows, justices of our
said lord the king, assigned to keep the peace of our said lord the
king, and also to hear and determine divers felonies, trespasses, and
other misdemeanors in the same county committed, by the oath of G.
H., E. F., &¢., good and lawful men of the said county, sworn and
dianed to inquire for our said lord the king, and the ay of the
said county, it is presented,” &c.?

§ 148. The foregoing statement applies particularly, though
not in all respects exclusively, to cases wherein the indict-
ment is removed by certiorari for trial in a superior court,
before it is passed upon by a jury in the inferior. When,
however, the removal of the cause is at a later stage, —as,
after verdict, or after sentence, — whether by certiorart, or
on any other process, the same recitation of facts is also, in
the higher court, called the caption, and perhaps it is like-
wise called the caption in the lower. The record of: the
lower court does not, in the English practice, and probably
not in the practice of our States generally, contain a separate
caption for each case, but there is one general caption for the
whole session or term of the Court; and, should the record of
several distinct cases be sent up to a higher tribunal, the cap-
tion for each of them is taken from this one general caption.3

§.149. In the United States, there are some variations of
practice. In several of the States the same course is in sub-
stance pursued as in England; and the same names are em-

1 Dickinson Quarter Sessions, 5thed. 2 2 Hale P. C.165; 1 Chit. Crim.
931. Law, 327.
8 Rex v. Marsh, 6 A. & E. 236, 249.

[103]
§ 151 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

ployed to designate the different parts of the indictment and
of the record. But in other States the part of the indictment
termed in England the commencement,! is expanded to some-
what greater length, and is called the caption; serving, iit
would seem, the double purpose of the English commence-
ment and the English caption.? And there are still other
States in which this matter appears not to be very well set-
tled, or at least very clear.

§ 150. The reader, therefore, perceives, that in England
and in those States in which the English practice is followed,
the caption is not in any sense a part of the indictment; but
on the other hand it is a part of the record, and it may be
amended to the same extent as the record in any other place.®
What amendments may be made in any record is matter be-
longing, not to.this chapter, but to a subsequent division in
this volume.

§ 151. There are, connected with the caption in what may
be termed the American sense, —in other words, the extend-
ed commencement used instead of the English caption, —
some questions which are a little difficult on the authorities,
though perhaps plain enough when considered in the light
of principle. In matter of legal principle, this extended com-
mencement, or caption, is no part of the indictment as sworn
to by the grand jury; it is a mere formal statement which,

1 Ante, § 145.

2 Commonwealth v. Stone, 3 Gray,
453; Commonwealth v. Edwards, 4
Gray, 1, 5, 6, where Dewey, J. said:
“In our practice, every indictment has
a caption attached to it, and returned
by the grand jury, as a part of their
presentment in each particular case ;
and, in this respect, a caption as used in
this Commonwealth differs essentially
from that of other tribunals, where the
separate indictments are returned with-
out any caption, and the caption is add-
ed by the clerk of the court, as a gen-
eral caption, embracing all the indict-
ments found at the term”; Common-
wealth v. Culton, 11 Gray 1; The State
v. Nixon, 18 Vt. 70; The State v. Sut-

[104]

ton, 1 Murph. 281; The State v. Long,
1 Humph. 386, 388; Mitchell v. The
State, 8 Yerg. 514; McClure v, The
State, 1 Yerg. 206, 216; The State v.
Jeffreys, Conference, 364 ; The State v.
Wasden, 2 Taylor, 163 ; The State v.
Haddock, 2 Hawks, 461; The State v.
Conley, 39 Maine, 78. E

8 Faulkner’s case, 1 Saund. 249; Rex
v. Brandon, Comb. 70; The State »v,
Creight, 1 Brey. 169; The State ».
Brickell, 1 Hawks, 354 ; Reeves v. The
State, 20 Ala. 33; Noles v. The State,
24 Ala. 672, 694; The State v. Hop-
kins, 7 Blackf. 494; Allen ». The State,
5 Wis. 329 ; The State v. Paine, 1 Ind.
163, Smith, Ind. 73 ; Rex v. Davis, 1
Car. & P. 470.
CHAP. XI.] INTRODUCTORY PART AND CAPTION. § 151

though placed at the head of the indictment, is still of no
higher nature than is an entry on the docket made in court
by the clerk, — a thing which, if erroneous, is subject, like a
docket-entry, to be corrected by an order of the judge ; or,
when it becomes transferred into the permanent records, to
be amended to the same extent as any other part of those
records. And it is believed, that, though the decided cases
may not be very distinct to this effect, and though some of
them may even seem to come short, this doctrine is, on the
whole, sustained by the adjudged law.}

11. Weare first to considerinthiscon- matter of strict law, the commence-
nection, whether the English commence- ment is not in England deemed a part
ment is deemed, in England, » part of of the indictment, but at most it is no
the indictment. If we turn to the Eng- . more than a part of the caption.
lish text-books, we find forms in which 2. There are, in Indiana, some cases
the commencement is altogether omit- which seem to be adverse to this view ;
ted in the record, or is merged in the the introduction being there apparently
caption proper. Thusin 3 Burn’s Jus- regarded as a part of the indictment,
tice, 28th ed. by Chitty, p. 413, tit. not to be properly omitted or blended
Indictment, we have the following: with the caption; though possibly a full
“ Westmoreland. Ata general quarter understanding of the cases and of the
sessions,” &c., proceeding in the usual Indiana practice, would enable a reader
style of the caption, “it is presented, to see them in a somewhat different
[ here the caption ends,] that John Arm- light. The State v. Hopkins, 7 Blackf.
strong, late of ” &c. Looking back to 494; The State v. Paine, 1 Ind. 163,
§ 145, ante, we shall see, that the com- Smith, Ind. 73. On the other hand, it
mencement, which was here omitted or is distinctly adjudged in South Caroli-
merged in the caption, is as follows: na, that this introductory matter, stand-
“ Westmoreland. The jurors for our ing at the head of an indictment found
lady the queen on their oath present.” by the grand jury, is not to be deemed
See also Archb. Pl. & Ev.,13th Lond.ed. a part of the indictment, but itis a
30. Now, this is explained by the Eng- partof the caption. And said Trezevant,
lish writers, who say, that such used to J., referring to this exact matter: “The
bé the customary style ; “but,” adds caption of an indictment may be made
Starkie, “the more correct form seems up or amended, at any time, from the
to be this, ‘It is presented in manner minutes of the clerk, made on the bill,
and form following, that is to say, Lan- or from what may appear upon the face
cashire, to wit, the jurors for our lord of the bill. .. . The caption ends with
the king,’ &c., and then copy the whole the words ‘upon their oaths present.’”
of the indictment verbatim.” 1 Stark. And said Grimké, J., speaking of an
Crim. Pl. 24 ed. 238. And Chitty earlier unreported case: “It was resolv-
speaks of this as “the preferable form.” ed by the court in that case, that the part
1 Chit. Crim. Law, 334. So likewise itis of the indictment here in question was
given in some other books. Dears. Crim. a part of the caption, and might be
Process, 38; Reg. v. Marsh, 6 A. & E. filled up by the court at any time during
236; Broome »v. Reg. 12 Q. B. 834. the sitting of the court.” The State
The result, however, plainly is, that, in v. Creight, 1 Brev. 169, 171, 172. See

[105]
§ 152 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

§ 152. The English books inform us, with a reasonable de-
gree of distinctness as to most points, what the caption, in the
English practice, should contain. One of the principal things
is, that it should show the jurisdiction of the court. “Tf,
therefore,” adds Starkie, “the caption merely set forth that
it was holden before J. S., steward, without showing to whom
he is steward, or in what court; or that an inquest of death
upon view of the body was taken before J. S., or without ad-
ding that he was a coroner, and showing also that he was a
coroner for the district in which the inquest was taken; it will

also The State v. Williams, 2 McCord,
301.

3. As tending more or less strongly |

to sustain the South Carolina doctrine,
see The State v. Brady, 14 Vt. 358 ;
The State v. Wasden, 2 Taylor, 163 ;
Commonwealth v. Gee, 6 Cush. 174 ;
Mitchell v. The State,8 Yerg. 514;
United States v. Thompson, 6 McLean,
56; The State v. Conley, 39 Maine,
78; English v. The State, 4 Texas,
125; The State v. Thibeau, 30 Vt.
100 ; The State v. Freeman, 21 Misso.
481; Allen v. The State, 5 Wis. 329;
Barnes v. The State, 5 Yerg. 186 ; Kirk
v. The State, 6 Misso. 469. In a Ver-
mont case, Redfield, J. observed as fol-
lows: “ The caption of a bill of in-
dictment is no part of the presentment
of the grand jury. It is merely the
record of the court, and might be whol-
ly omitted. The minute of the clerk of
the time when the bill was found, and
the record of the court would supply
the defect. So, too, if the preface of
tbe bill, which formerly contained the
names of the jurors, is defective or
false, it may be corrected by reference
to the other records of the term.” The
State v. Gilbert, 13 Vt. 647. In a
Massachusetts case, it was held, that
an indictment which purports in its in-
troductory part, or caption in the Amer-
ican sense, to have been found “ at the
municipal court of the city of Boston,
begun and holden at said Boston, &c.,

[106]

on,” &c., yet charges the offence as
committed at a date earlier than is thus
mentioned, may be shown, by a refer-
ence to the clerk’s certificate endorsed
thereon, to have been actually returned
into court at a date subsequent to the
commission of the offence ; rendering
the indictment, therefore, good. But
Dewey, J. in delivering the opinion of
the court, made some observations
from which it might be inferred, that his
own views did not go quite to the ex-
tent mentioned in the text, and ad-
judged by the South Carolina court.
He said : “It is true, that, in practice
in England, appending the caption is
usually a ministérial act, and it is intro-
duced as a part of the record, or return
from an inferior to a superior court,
from which a certiorari issues. Here
the caption is usually drawn with the
other parts of the indictment, and is
embodied in the instrument returned by
the grand jury as a true bill. But we
do not think that an insuperable objec-
tion to showing, by a certificate filed
in the course of proceedings in a par-
ticular case, under the hand of the
clerk, the actual time of filing the bill.
It might be a good reason why an
amendment should not be made of the
caption in such cases, but leaves the
other sources for fixing the time open
to be resorted to, if any such exist.”
Commonwealth v. Stone, 3 Gray, 453,

454, 455,
CHAP. XI] | INTRODUCTORY PART AND CAPTION. § 153

be insufficient. But it would be sufficient to say coroner in
the county, for the court will intend that he is coroner for the
whole county.” !

§ 158. These cases, however, together with all the others
in which the caption has come under review in England, are
cases where the indictment was found before the court of an
inferior magistrate or other tribunal of limited jurisdiction ;
and where, therefore, in pursuance of a familiar rule, the
record must show the jurisdiction affirmatively, for it will
not be presumed ; while, on the other hand, the law presumes
that a superior court of general jurisdiction acted within its
authority, and the record need not show this. Therefore it
was laid down in North Carolina, that a caption setting forth
the jurisdiction is necessary only where the court acts under
a special commission ; or, at least, that it is not essential where
the court is a superior one sitting by authority of public law.?
And in another case the indictment, containing in its caption
the words, “ Fall term, 1822,” and then charging the offence
to have been committed “on the 1st day of August, in the
present year,” was held to be sufficient ; Taylor, C. J. observ-

1 1 Stark. Crim. Pl. 2d ed. 234, And
this writer goes on to say: “It has

ed was omitted, the caption was holden
to be defective. But it is unnecessary

been holden sufficient to allege the in-
dictment to have been taken at a gen-
eral sessions of the peace of such a
county, but insufficient to allege it to
have been taken at a general sessions
holden in such a county, instead of
saying for such county. The caption
ought to notice the authority of the jus-
tices to hear and determine divers fel-
onies, &c. It was formerly deemed
necessary to describe the justices either
as the king’s justices, or as justices of
the public peace, but it has since been
holden to be sufficient to describe them
as justices of the peace. But it is not
sufficient to describe them generally as
justices of the peace, &c., without either
naming them or showing for what di-
vision they were justices ; and, where
in their description as justices assigned
to keep the peace, &c., the word assign-

to allege that the justices of the gen-
eral quarter sessions were of the quo-
rum. It is a general rule, that the title
of their authority should be set forth ;
as, that they were justices of the peace,
&c., justices of jail delivery, &c. If ases-
sion be holden by virtue of several
commissions, as of jail delivery, oyer
and terminer, and the peace, and the
record be made up as upon all three
commissions, the caption will be good,
if the justices had authority to take the
indictment by one of those commissions
though not by the others. ... The
justices’ names should be set out; and,
though it is not necessary to mention
all, yet so many should be named as
are enabled by their commission to
take an indictment.”

2 The State v. Wasden, 2 Taylor,

163.
[107]
§ 154 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

ing: “The objection is, that the caption does not state the
term at which the court was held with sufficient certainty ;
but where is the necessity of stating, in the caption, any time
at all? The record in this case shows, that the indictment
was found at a superior court, held under due and legal
authority ; and, as it is known that the superior courts are
organized and act under a public law, this court is bound
judicially to recognize its power. A court acting under lim-
ited and special powers may require a caption specifying its
authority, but not a court sitting under the general law of
the land. But ‘Fall Term’ is certain enough; for we know
the Fall begins the first of September, and that the circuit in
which Columbus is located, also begins in September. The
time of committing the offence is stated with sufficient pre-
cision; the present year refers to the year mentioned in the
caption.” 2

§ 154. The distinctions taken in the last section rest in
established legal doctrine ; yet, as applied to the particular
matter of the caption, they seem not to have been always be-
fore the minds of our American judges. Indeed, the whole
question as to what the caption should contain, appears, when
approached through the American books, draped in mist and
girded about with darkness. Doubtless the nature and gen-
eral jurisdiction of the tribunal is to be considered; also the
peculiarity of its local jurisdiction, if it isa court of the latter
sort; also the statutes and judicial usage of the particular
State. The reader will find some help from consulting the
collection of points here appended in a note; but, it must
be observed, the reports themselves do not always disclose,
whether the caption spoken of is in the nature of the English
caption, or whether it is the introductory matter found at the
head of the indictment as returned by the grand jury.?

1 The State v. Haddock, 2 Hawks, who were summoned and sworn as
461. And see post, § 154, note, Wis- grand jurors; and this caption is ap-
consin. plicable to, or is a part of, every indict-

2 Alabama. “ The caption of anin- ment, and need not be again repeated
dictment is that entry of record, show- in any part of the indictment.” Dar-
ing when and where the court is held, gan, C.J. in Reeves, v. The State, 20
who presided as judge, the venire,and Ala. 83, 36. The caption may be look-

[108]
CHAP. XI.]

INTRODUCTORY PART AND CAPTION.

§ 155

§ 155. Starkie, setting forth the requisites of the English
caption, proceeds as follows: It “ must further show, that the

ed to in aid of the indictment, as a part
of the record. Noles v. The State, 24
Ala. 672, 694. If what properly be-
longs to the caption is inserted in the
body of the indictment, it may be re-
jected as surplusage. Rose v. The
State, Minor, 28. An indictment is
good, which purports to be found by
“the grand jurors for the said State,
sworn and charged to inquire for the
said county,” when the’ names of the
State and proper county are stated in
the margin. Lawson v. The State, 20
Ala. 65. When it is alleged, in the
commencement, that the “ grand jurors
for the State of Alabama upon their
oaths present,” &c., and the name of
the proper county is stated in the cap-
tion, the proceedings are sufficiently
certain, although it is not averred that
such grand jurors were selected, im-
panelled, sworn, and charged to in-
quire for the body of the county. Mor-
gan v. The State, 19 Ala. 556. The
venire of the grand jury and the names
of the grand jurors are a part of the
caption, and need not be introduced
into the indictment. The State v. Mur-
phy, 9 Port. 487.

Arkansas. The courts of this State
are disposed to relax somewhat the rig-
or of the ancient English forms with
regard to the caption. Accuracy in
showing that the grand jurors are good
and lawful men of the county, &c., is
not important, where every facility is
offered to the defendant to ascertain
their qualifications. Cornelius ». The
State, 7 Eng. 782.

Georgia. Judgment will not be ar-
rested because the names of three of the
nineteen grand jurors in the body of the
indictment were written with the initials
only. And Lumpkin, J. observes:
“Men in this country are frequently
just as well known by their initials as
any other way. The practice is some-
what different in England. A man is

VOL. I. 10

usually called there by his whole name,
as, James Sheridan Knowles. This has
always been so. And hence the com-
mon law rule, as to names, has always
been more stringent than in this coun-

try.” Hatcher v. The State, 18 Ga.
460, 465.
Illinois. Where one of two counts

constituting an indictment has been
quashed, this does not affect the caption,
but it remains good for the other count.
Duncan v. People, 1 Scam. 456.

Indiana. The court cannot presume
that an indictment was found by the
grand jury of the proper county, in the
absence of any statement of record to
this effect. Where the caption is sim-
ply, that it is presented by the grand
jury, &c., this is not sufficient. Clark
v. The State, 1 Ind. 253, Smith, Ind.
161. It is sufficient to describe the
grand jurors as “ good and lawful men,”
without any more specific words re-
specting their qualifications. Jerry v.
The State, 1 Blackf. 395; Beauchamp
v. The State, 6 Blackf. 299; Wein-
zorpflin v. The State, 7 Blackf. 186. If
the statement is, that the indictment was
found on the “ oaths ”’ of the jurors, in-
stead of their “oath,” this is no ground of
error. Jerry v. The State,supra. Where
the caption of an indictment from the
circuit court showed, that, at, &c., on,
&c., the jurors (naming them) appear-
ed in court, and, being duly sworn and
charged, &c.; it was held that the omis-
sion of the words “then and there,”
before the words “ sworn and charged,”
was not material. Beauchamp v. The
State, supra. The record of the board
of county commissioners must show,
that grand jurors, finding a certain in-
dictment, were selected according to
the provisions of the statute, or the in-
dictment will be quashed. The State
v. Conner, 5 Blackf. 325.

Maine. The commencement of an
indictment, termed the caption, was :

[109]
§ 155

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK 0.

indictment was found by twelve jurors of the county, city, or

place for which the court was holden.

“ State of Maine, Cumberland, ss. At
the Supreme Judicial Court begun and
holden at Portland, within the County
of Cumberland, on the first Tuesday
of March, in the year of our Lord one
thousand eight hundred and fifty-four.
The jurors for said State upon their
oaths present, that” &c. The court ob-
served ; ‘‘ The caption is conformable to
general if not universal practice in this
and other States,” &c. And it was held,
that this caption sufficiently showed at
what court the indictment was found.
The State v. Conley, 39 Maine, 78.

Massachusetts. An indictment which
purports by its caption to have been
found at a court of common pleas for
the county of Hampshire, and then it
is added, “ the jurors for said common-
wealth on their oath present,” sufficient-
ly shows that it was returned by the
grand jury for the county of Hamp-
shire. Commonwealth v. Edwards, 4
Gray, 1. See Commonwealth v. James,
1 Pick. 375. It is no objection to an in-
dictment purporting to have been found
at a court begun and holden “ on the
first Monday of January,” that in fact,
the grand jury was not impanelled
until the next day, or Tuesday, the sec-
ond day of the term. Commonwealth
v. Calton, 11 Gray, 1. “ The jurors for
the said commonwealth on their oath
present, that” &c., are words sufficient
in the commencement ; the form need
not be “the grand jurors,” &. Said
Dewey, J.: “ No other jurors than grand
jurors being authorized by law to find
and return bills of indictment, this in-
dictment, under this long-established
form of description, must be taken to
have been found by the grand jury.”
Commonwealth ». Edwards, 4 Gray, 1,
6. The reader has observed, ante, § 145,
that the form in England is in this re-
spect the same.

Mississippi. The caption of an in-
dictment must state, with sufficient cer-

[110]

The precedent cited

tainty, the style of the court, the judge
presiding, and the place at which, and
jurors by whom, the indictment was
found. Thomas v. The State, 5 How.
Missis. 20. A caption in the words,
“The grand jurors of the State of Mis-
sissippi, impanelled and sworn in and
for the county of Warren,” &c., states
with sufficient certainty that such jurors
were of the county of Warren. Byrd v.
The State, 1 How. Missis. 163. It must
appear by the record of an indictment
for murder, that the grand jurors were
sworn. Where this fact was recited in
the indictment itself, such recital was
held not to cure the omission in the
record. Abram v. The State, 25 Missis.
589. But the record need not show,
that the witnesses examined before the
grand jury were sworn. King v. The
State, 5 How. Missis. 730.

Missouri. An indictment commenced
thus; “State of Missouri, County of
Hickory. In the Hickory Circuit Court,
September Term, a. p. 1852. The grand
jurors for the State of , impan-
elled, charged, and sworn to inquire,”
&c. Above all were the words “ State
of Missouri.” The blank should reg-
ularly have been filled with the word
“ Missouri.” Yet the indictment was
held to be well enough. The State v.
England, 19 Misso. 386. The omission
of the word “ present,” in the com-
Mencement, does not render the indict-
ment invalid. The State v. Freeman,
21 Misso. 481. An indictment reciting
that the grand jurors were “ impanel-
led, sworn, and charged,” need not state
when and where they were so impanel-
led, &c. Vaughn v. The State, 4 Misso.
530. The defendant cannot object, that
the caption does not find in what court,
or at what term, the indictment was
found. Said the judge: “ The records
of the court show in what court and at
what term this bill was found, and the
caption of the indictment forms no part

 
CHAP. XI.]

INTRODUCTORY PART AND CAPTION.

§ 155

from Hale states the names of the jurors; but, though it cer-
tainly is necessary that the names of the jurors should be

of the indictment.”
“6 Misso. 469.
New Jersey. An indictment is not
vitiated because stated to be on the
“oaths,” instead of “ oath,” of the
grand jury. The State ». Morris Canal
and Banking Co., 2 Zab. 537. See supra,
Indiana. It is not usual to set forth in
the captions of indictments, that the
grand jurors were summoned, or by
whom, or even that they were impan-
elled. Where a caption styled the
court at which it was found, as “the
court of oyer and terminer and general
jail delivery, holden at N. B., in and for
the county of M.,” and the award of the
venire styled the judges, of whom one
was a justice of the supreme court and
the others were judges of the court of
common pleas, as “judges of the court
of oyer and terminer and general jail
delivery,” it was held, that the style of
the court was correct, as it was the title
given in the statutes and reports, and
that the style of the judges was correct
for the same reason. Berrian v. The
State, 2 Zab. 9. The caption of an in-
dictment ought to show distinctly the
names and style of office of the judges
composing the court to which it is pre-
sented ; if it does not, the indictment
will be quashed. Said the judge: “The
purpose is to show that they were com-
petent to hold the court, and had power
to take the indictment.” The State v.
Zule, 5 Halst. 348. The caption need
not state, in express terms, that the
grand jury were summoned and return-
ed as such. The State v. Jones, 4 Halst.
357 ; The State v. Price, 6 Halst. 203.
It need not specify their qualifications ;
but to describe them as “ good and law-
ful men’”’ is sufficient. A caption stat-
ing, that, “ at a court of oyer and ter-
miner and general jail delivery, held,
&c., before the honorable G. H. F., one
of the justices, &., and J. G, &e.,
their fellows, it is presented,” sufficiently

Kirk v. The State,

indicates the court to whom the grand
jury made their presentment. The State
v. Price, supra. Where an indictment
purports to be on the affirmations of
some of the grand jurors, it must ap-
pear that they were legally entitled to
serve on their mere affirmation, or the
indictment will be fatally defective.
The State v. Harris, 2 Halst. 361;
The State v. Fox, 4 Halst.244. In the
former of these two cases, the court,
however, observe: “We are not dis-
posed to favor exceptions of this kind,
which have nothing to do with the jus-
tice of the case ; and, were the ques-
tion now to arise for the first time, we
should hesitate before we gave it our
sanction. But the cases cited, particu-
larly Sharp’s case { a New Jersey case],
have settled the question ; and we feel
ourselves bound to adhere to the rule
established by the court on previous oc-
casions.” p. 362.

New York. Itis not a valid objec-
tion to an indictment for a capital of-
fence, that, in its caption, one of the
justices of the peace before whom it
was found, is described as “ in and for
the county of ——,” whereas justices
are town officers. People v. Thurston,
2 Parker C. C. 49.

North Carolina. The law requires,
that the grand jury shall consist of free-
holders ; therefore the words “ good
and lawful men,” in a caption, mean
freeholders. The State v. Glasgow,
Conference, 38. Where the caption’
was “ State of North Carolina, Franklin
County, March sessions, 1798,” it was
held to be sufficient. The State v. Jef-
freys, Conference, 364. See 1 Taylor,
216. In another case, however, it was
held, that the caption must state the
court, where there were two courts in
which indictments might be found in
the same county. The State v. Sutton,
1 Murph, 281.

Ohio. The number of the grand

[111]
§ 155

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK II.

returned in the schedule, yet, in making up the record in the
King’s Bench, it has been the constant practice in the crown

jury need not be specified in an indict-
ment. Young v. The State, 6 Ohio,
435. Where an indictment purports to
be found by “the grand jurors of the
State of Ohio, inquiring of crimes and
otfences within and for the county of
Monroe,” it must be taken to be a grand
jury of that county, as well as of the
State, and it is therefore found by such
a body as the law intends. Mackey »v.
The State, 3 Ohio State, 362.

South Carolina. The caption must
set forth with sufficient certainty the
court in which, the jurors by whom,
and the time and place at which, the in-
dictment was found. The State v. Wil-
liams, 2 McCord, 301. But the indict-
ment need not contain the names of the
grand jurors. The State v. Cook, Ri-
ley, 234. The words ‘“ good and law-
ful men” need not appear, as descrip-
tive of the grand jurors, in the caption.
Upon this point, Smith, J. said: “ This
might have been a sufficient ground un-
der the English law, regulating the im-
panelling of jurors. . .. . But by
the various acts of our own State legis-
lature, relative to the impanelling of
jurors, it is done under so many guards
and checks that these exceptions can
never prevail. .... Now under all this
strictness and precaution, it could scarce-
ly be deemed essential to the safety of
the prisoner that the particular words
‘good and lawful men’ should be set
forth in the indictment. I am not only
of opinion that itis perfectly unnecessary
to set out these words in the indictment,
buat I should deem them superiluous,
and believe that setting forth in the in-
dictment the impanelling of the jury, in
pursuance of the acts of the legislature,
is more conformable to good sense, and
equally safe, at least for the prisoner.”
The State v. Yancy, 1 Tread. 237, 288,
239,

Tennessee. Where the caption of an
indictment stated that the grand jurors

[112]

were “balloted for, elected, tried, and
sworn,” this was held to be equivalent
to saying they were qualified men.
Turner v. The State, 9 Humph. 119.
The caption, “ Circuit Court, November
Term, 1829,” in figures, is good, if it
appears from the record that an indict-
ment was found at that term. Barnes
v. The State, 5 Yerg. 186. The body
of an indictment need not show in what
court it was found, where the fact ap-
pears in the caption. Dean ». The
State, Mart. & Yerg. 127. The caption
should show within what county the
court is held, and that the grand jury
were sworn. The State v. Fields, Peck,
140; The State v. Hunter, Peck, 166.
It is sufficient to describe the grand ju-
rors as “ good and lawful men,” without
saying that they are freeholders. Bonds
v. The State, Mart. & Yerg. 143 ; Corn-
well vu. The State, Mart. & Yerg. 147.
The caption should mention the day
and year, and that the indictment was
taken on the oath of jurors of the coun-
ty in which the crime was committed.
Tipton v. The State, Peck, 308. As to
which, see also The State v. Long, 1
Humph. 386.

Vermont. “It has been decided, in
State v. Nixon, 18 Vt. 70, and in State
v. Gilbert, 13 Vt. 647, that the only
questions which can be raised on a mo-
tion in arrest of judgment, are those
which relate to the sufficiency of the
indictment ; and that, on the hearing of
such question, defects in the caption, or
even the omission of the caption, cannot
be noticed.” The State v. Thibeau,
30 Vt. 100,104. The commencement
of an indictment in these words, “ The
grand jurors for the people of the State
of Vermont, upon their oath, present,”

’ &e., is sufficient, on motion in arrest of

jodgment. The State v. Nixon, supra.
Where it becomes necessary, in charg-
ing the commission of an offence, to
allege that a certain term of a county
CHAP. XI. ] INTRODUCTORY PART AND CAPTION. § 155

office to omit the names of the jurors in the caption. And it
has been solemnly decided that it is unnecessary to insert
their names in the caption, though this was formerly doubt-
ed; but the caption must show, that the offence was pre-
sented by twelve jurdrs. It should appear that they were
sworn and charged ; but the omission of the latter will not
be fatal. It has been holden necessary to allege, that they
were then and there sworn and charged, and for what county
or division. And it must appear that they acted under the
obligation of an oath ; and, therefore, the caption should not
only allege that they were sworn, but also that they made
their presentment upon oath ; but it has been holden in some
instances that the words ‘present upon their oath’ supply
the place of the words ‘sworn and charged’; and probably
this would now be holden sufficient in all cases. It is unneces-
sary to describe them as probi et legales homines, for this is a

necessary intendment of law.” }

court was duly holden, it is not suffi-

cient to say it was holden by and before,

the chief judge of such court, without
mention of any assistant judge. If any
one of the judges is named, it should
appear that at least a quorum of the
court held the term. The State v. Free-
man, 15 Vt. 723.

Virginia. If the caption of an in-
dictment sets forth the county, without
entitling it of the court, it is sufficient.
Taylor v. Commonwealth, 2 Va. Cas.
94; Burgess v. Commonwealth, 2 Va.
Cas. 483. The indictment need not
show on its face when it was found.
Burgess v. Commonwealth, supra.

Wisconsin. A caption declaring that
the indictment was found by “ the grand
jurors of the State of Wisconsin, to
wit, twelve good and lawful men,” is
bad, and the indictment will not be sus-
tained, even after verdict ; because, by
a statute of the State, a grand jury
must consist of not less than sixteen
persons. It was observed by Cole, J.,
delivering the opinion of the court, that
perhaps less was required in the cap-

10*

tion, where the finding was before a
court of general jurisdiction, than where
it was before an inferior one (see ante,
§ 153), “yet,” he added, “even there,
should the indictment show upon its
face that it was found by a grand jury
not legally constituted, or that twelve
jerors did not concur in finding it, or
that the jurors did not possess the legal
qualifications to serve as jurors, we
think it would be declared bad.” Fritz-
gerald v. The State, 4 Wis. 395, 397.
It is not essential to set forth, in the cap-
tion of an indictment, the qualifications
of the grand jurors ; or to recite all the
facts which give the comrt, in which it
is found, jurisdiction, where such court
is invested with general criminal juris-
diction. The State v. McCarty, 2
Chand. 199. See also, The State vw.
Delue, 1 Chand. 166.

1 1 Stark. Crim. Pl. 2d ed. 236, 237.
See also Reg. v. Butterfield, 2 Moody
& R. 522; Rex v. Vaws, 1 Mod. 24;
Rex v. Waite, 4 Mod. 248; Rex v.
Roysted, 1 Keny. 255; Aylett v. Rex, 8
Bro. P. C. 529,6 A. & E. 247, note ; Rex

[113]
§ 156 PLEADING AS RESPECTS THE INDICTMENT. [BOOK UL.

§ 156. Upon most of the points mentioned in the last sec-
tion, the American law will be found in the notes to the
section before the last. On the whole it may be said in con-
clusion, that the caption varies according to the State, the
tribunal, the peculiar statute law, and’ the views of the par-
ticular judges before whom the question may come. The
practitioner will find, in this chapter, the elements which, in
connection with his own statutes and reports, he may com-
bine into an argument to supply a particular want; but the
chapter could not be made more distinct, unless it were also

made to mislead.

v. Fearnley, 1 Leach, 4th ed. 425 ; Rex
v. Davis, 1 Car. & P. 470 ; Dakin’s case,
2 Saund. 290; Rex v. Marsh, 6 A. &
E. 236, 1 Nev. & P. 187. When the
caption states the court to have been
held on an impossible day, it is fatal.
Rex v. Fearnley, 1 T. R. 316. If one
of the grand jurors is a Quaker, the in-
dictment should commence, ‘“ The ju-
rors for our lady the Queen, upon their
oath and affirmation, present,” &c.
Anonymous, 9 Car. & P.78. By the
caption of an indictment, it appeared,
that, “upon the oaths of twelve jurors,

[114]

good, &c.,” then and there sworn and
charged to “ inquire for our said lady
the Queen, &c.,” it was presented in
manner and form following ; that is to
say.” Then followed the indictment
thus: “ Middlesex. The jurors of our
lady the Queen, upon their oath, pre-
sent,” &c. :— Held, upon error brought
to the Exchequer Chamber, that by
taking the caption with the indictment,
it sufficiently appeared that the present-
ment was by jurors for the Queen.
Broome v. Reg., 12 Q. B. 834.
CHAP. ‘XII. ] THE CONCLUDING PART. § 158

CHAPTER XII.
THE CONCLUDING PART OF THE INDICTMENT.

§ 157. Currry says: “In the conclusion of the indictment,
or each count, there are several sentences in common use,
which do not seem to be at all material. Of this description
are, ‘to the great damage of the party’ particularly injured
by the offence, ‘to the evil example of all others,’ and ‘ to the
great displeasure of Almighty God’; and, though it is usual
to conclude an indictment for treason, ‘contrary to the de-
fendant’s allegiance,’ yet it will suffice if that allegation be
in the body of the indictment. .... The words ‘in con-
tempt of our said lord the king and his laws’ are frequently
used in indictments in superior courts, in informations of ob-
trusion, and in actions upon statutes; but they have been
frequently omitted and the proceeding held valid. And
there seems to be no other authority to prove the necessity of
their insertion in any case than the fourth Year Book of Hen-
ry VI., where it is admitted to be necessary in an action on
a penal statute. In general, therefore, in indictments for
offences at’ common law, they may be safely omitted.” It
does not belong to this place to consider what special matter,
by way of conclusion, must be inserted in indictments for
particular offences, or indictments under statutes; but we
are now inquiring after the conclusion common to all indict-
ments.

§ 158. It is said by Starkie?—Jet us here cite his notes
with his text: “At common law, the indictment in general
concludes with the words, ‘against the peace of our said lord
the king, his crown and dignity.’ And whenever the offence
includes a breach of the peace, the indictment should con-
clude contra pacem, for the necessity of these words is not

1 1 Chit. Crim. Law, 245. 21 Stark. Crim. Pl. 2d ed. 209.
[115]
§ 159 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

taken away by Stat. 37 Hen. 8, c. 8;1 but, where the offence
consists in a bare omission, as the not performing an order
of a justice of the peace,” or rests in tendency, or partakes of
the nature of a civil proceeding, as in the case of an informa-
tion for an intrusion, the averment appears to be unneces-
sary.? But if these words be alleged in an indictment for a
bare non-feasance, they may be rejected as surplusage.* Ac-
cording to Lord Hale, ‘ every offence against a statute should
be laid contra pacem’;® and, though there are precedents
without this conclusion, they do not appear to be warranted
by any resolution,® except where the offence consists in a bare
non-feasance.’ Where the averment is necessary, it must be
alleged to have been committed contra pacem domini regis,
and contra pacem alone is insufficient.” ®

§ 159. It seems pretty plain, that, in matter of principle,
there is no reason why an indictment for a non-feasance
should be excepted out of the general rule, which requires all
indictments to conclude ‘against the peace.’ And it is be-
lieved that the distinction thus drawn by Starkie, on a ground-
work of authority not very satisfactory, would not be gener-
ally accepted at the present day; “for,” in the language of
Holt, C. J., “every breach of a law is against the peace,
and ought to be so laid” ® in one case as much as in another.
A non-feasance is in law an act, the same as a misfeasance ;
and, if the latter disturbs the peace, so equally in its measure
does the former. And the general common law doctrine is

12 Hale P. C.188. Iwill observe be true of the other States. In most of

of the statute here referred to, that its
date is 1545; it is in two sections, and
the first section is the one alluded to in
the text. It provides, ‘‘ that the words,
vi et armis, videlicet, cum baculis, cultellis,
arcubus et fagittis, or such other like,
shall not of necessity be put or com-
prised in any inquisition or indictment,”
&c. This section of the statute was
received in Maryland (Kilty Rep. of
Statutes, 283), and in Pennsylvania
(Report of the Judges, 8 Binn. 595,
620), as a part of the common law of
those States, and the same is believed to

[116]

the States, however, its provisions are
expressly enacted.

‘2 Vent. 108, 111.

3 2 Hawk. P. C. c. 25, § 92; Rast.
209, 412; 1 Keb. 360, 8364-372, 390;
Salk. 380.

4 Salk. 380,

5 2 Hale P. C.188; 2 Hawk. P. C.
. 25, § 92.

6 2 Hawk. P. C.c. 25, § 92.
71 Vent. 108, 111.

8 2 Hale P. C. 188.

® Reg. v. Lane, 6 Mod. 128.
10 Crim. Law, I. § 520.

o
CHAP. XIL]

THE CONCLUDING PART. § 161

settled beyond dispute, that every indictment, whether for
felony or misdemeanor, must conclude against the peace of
the queen, State, or commonwealth There are in our
Union some States in which this conclusion is by statute ren-
dered unnecessary.2

§ 160. On the other hand, there are States in which this
conclusion is even made necessary by express constitutional
provision. Mr, Wharton says, that the provision is found in
“the constitutions of most of the States.”’? In South Caro-
lina it is, or was, in the following language: “The style of
all processes shall be, The State of South Carolina. All pros-
ecutions shall be carried on in the name and by the authority
of the State of South Carolina, and conclude against the
peace and dignity of the same.” And where an indictment
had in its commencement the words “ South Carolina,” in-
stead of “The State of South Carolina,” and concluded
“against the peace and dignity of the said State,” it was held
by a majority of the judges to be good.t Likewise when the
conclusion was simply “‘ against the peace and dignity of this
State,” instead of “this said State,” as the defendant con-
tended it should be, the conclusion was held to be suffi-
cient.5

§ 161. Where, in New Hampshire, the constitutional pro-
vision was, that all indictments should conclude “ against the
peace and dignity of the State,” a conclusion “against the
peace and dignity of our said State”? was held to satisfy the
requirement.6 And in Arkansas, where the constitution re-
quired the conclusion to be “ against the peace and dignity of
the State of Arkansas,” a conclusion “against the peace and

1 Rex. o. Cook, Russ. & Ry. 176;
Rex v. Taylor, 5 D. & R., 422; Com-
monwealth v. Carney, 4 Grat. 546.
And see the observations of Hawkins,
2 Hawk. P. C. c. 25, § 92.

2 Tt is so, for instance, in Massachu-
setts. Gen. Stats. c. 172, § 19.

8 1 Whart. Crim. Law, § 410.

* The State v. Anthony, 1 McCord,
285. A similar decision was made un-

der a like provision in Mississippi. The
State v. Johnson, Walk. Missis. 392.

5 The State v. Yancey, 1 Tread. 237.
So the conclusion “ against the peace
and dignity of the same State,” has been
held to be good; the objection being,
that the word “ State” does not follow
the word “same” in the constitution.
The State v. Washington, 1 Bay. 120.

6 The State v. Kean, 10 N. H. 347,

[117]
§. 162 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

dignity of the people of the State of Arkansas ”’ was held to
be well enough.t

§ 162. Not unlike the South Carolina provision is that in
Wisconsin, as follows: “ All criminal prosecutions shall be
carried on in the name and by the authority of the State.”
_And it has been held not to be necessary to allege, either in
the caption or in the body of the indictment, in terms, that
it is found or prosecuted by authority of the State; it is
sufficient where the crime is charged to have been committed
“against the peace and dignity of the State of Wisconsin ” ;
and the grand jury making the presentment are stated to
have been impanelled and sworn to inquire for the body
of the county in which the indictment is found, the same
being within the State.2 A like provision is contained in the
constitution of Kentucky; and there it is also held not to be
necessary for the indictment to express on its face that it is
found “‘in the name and by the authority of the common-
wealth of Kentucky,” which are the words of the constitution ;
but, if it appears to be in the name of the commonwealth, and
concludes against its peace and dignity, this is sufficient.2 But
in Illinois an indictment seems to have been held bad for not
containing the express words of the constitution, “in the
name and by the authority of the people of the State of Ill-
inois.”* The conclusion is, that it is not necessary to follow
the exact words of the constitution in order to comply with
these provisions ; but how wide a departure may be made
without disaster will depend very much upon a complication
of things, among which are the somewhat differing views of
particular judges.

1 Anderson v. The State, 5 Pike, 444. See also Zarresseller v. People, 17 Ill.

2 The State v. Delue, 1 Chand. 166. 101; Harriman v. The State, 2 Greene,

8 Allen v. Commonwealth, 2 Bibb, Iowa, 270; The State v. Lopez, 19
210. And see Commonwealth v. Young, Misso. 254; The State v. Durst, 7.
7 B. Monr. 1. Texas, 74.

* Whitesides v. People, Breeze, 4.

[118]
CHAP. XIII. ] THE LANGUAGE, ETC. § 163

CHAPTER XIII.

THE LANGUAGE, AND THE PURITY AND PRECISION THEREOF,
REQUISITE IN THE INDICTMENT.

§163. Iv is well known that what are now called the plead-
ings in court, were anciently delivered orally, and the sub-
stance of them was taken down and entered of record by the
clerk of the court. Now from the time of William the Con-
queror downward, these oral pleadings, together with all the
discussions before the judge and by him, were in the Norman
French language ; but the record, made by the clerk, was in
Latin, — not, indeed, in the classical Latin, but in a sort of cor-
ruption of the language, called sometimes law Latin. Jn this
state of things, Stat. 36 Edw. 3, stat. 1,¢.15, a. p. 1862, was en-
acted, as follows: ‘ Because it is often showed to the king by
the prelates, dukes, earls, barons, and all the commonalty, of
the great mischiefs which have happened to divers of the realm,
because the laws, customs, and statutes of the realm be not
commonly holden and kept in the same realm, for that they
be pleaded, showed, and judged in the French tongue, which is
much unknown in the said realm, so that the people which do
implead, or be impleaded, in the king’s court, and in the
courts of other, have no knowledge nor understanding of that
which is said for them or against them by their serjeants and
other pleaders, &c., &c., the king, &c., hath ordained, &c.,
that all pleas which shall be pleaded in any courts whatever,
before any of his justices whatsoever, or in his other places,
or before any of his other ministers whatsoever, or in the
courts and places of any other lords whatsoever within the
realm, shall be pleaded, showed, defended, answered, debated,
and judged in the English tongue, and that they be entered
and enrolled in Latin.” Blackstone and some others have

1 Ante, § 2.
[119]
§ 165 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

fallen into what is now understood to be the error of sup-
posing, that, previous to this statute, even the record was m
French. Actual inspection of the records has shown that
they were in Latin.

§ 164. “The record,” it is said in Tomlins’s Dictionary,
“is a history of the most material proceedings in the cause, en-
tered on a parchment roll, and continued down to the present
time ; in which must be stated the original writ and summons,
all the pleadings, the declaration, view or oyer prayed, the
imparlances, plea, replication, rejoinder, continuances, and
whatever further proceedings have been had; all entered
verbatim on the roll, and also the issue or demurrer, and
joinder therein.”* This definition, the reader perceives,
more properly applies to the state of things existing after the
pleadings of the parties came to be delivered into court in
writing ; for, before this time, they were, anterior to the
statute of 36 Edw. 3, spoken orally in French, and, subse-
quently to the statute, spoken orally in English, and in both
instances entered by the clerk as before mentioned upon the
rolls in Latin. But when the pleadings came to be delivered
to the clerk in writing, prepared for his record, there was an
obvious reason why they should be in the language of the
record ; therefore, as observed by Mr. Stephen, “on the in-
troduction of paper pleadings, they followed, in the language
as well as in other respects, the style of the record, and were
therefore drawn up in Latin.” ® Thus at the time when the
colonies, which now compose the older States of our Union,
were settled, all indictments, declarations, pleas, and the
like, and all judicial records, were, in England, in Latin.

§ 165. It is believed that the use of the Latin in this way,
is a part of the common law which was never adopted in any
of our colonies ; though, on this point, the author cannot cite
authorities covering the entire ground. Chancellor Kilty says,

1 See on this general matter, Tom- phen Pl. 4th ed. App. xxiv. ; 2 Reeves
lins Law Dict. tit. Pleading ;3 Bl.Com. Hist. Eng. Law, 449.
317 et seq. ; 3 Co. Thom. ed. Pref. ? Tomilins Dict. tit. Pleading.
xxxviii. ; Dugdale Orig. 8d ed. 95,96; | 8 Stephen Pl. 4th ed. App. xxiv.
Barrington Obs. Stat. 4th ed. 290 ; Ste-

[120]
CHAP. XIII. ] THE LANGUAGE, ETC. § 166

of the practice in Maryland, that “the proceedings, which
were not very formal, were always in English.”? In some
of our States there are statutes expressly excluding the use,
in such cases, of all languages but the English ; and such is
clearly the general American law.’ :

§ 166. In England, the use of the Latin ceased in 1733; a
statute passed in 1781, 4 Geo. 2, c. 26, providing, that, after
the former date, “all writs, process, and returns thereof, pre-
sentments, verdicts, prohibitions, certificates, and all patents,
charters, pardons, commissions, records, judgments, statutes,
~ recognizances, bonds, rolls, entries, fines and recoveries, and
all proceedings relating thereto, and all proceedings of courts
leet, courts baron, and customary courts, and all copies
thereof, and all proceedings whatsoever in any courts of jus-
tice within that part of Great Britain called England, and in
the Court of Exchequer in Scotland, and which concern the
law and administration of justice, shall be in the English
tongue and language only, and not in Latin or French, or
any other tongue or language whatsoever, and shall be writ-
ten in such a common legible hand and character as the acts
of Parliament are usually engrossed in, and the lines and
words of the same to be written at least as close as the said
acts usually are, and not in any hand commonly called court
hand, and in words at length and not abbreviated.” This
statute was afterward slightly modified by Stat. 6 Geo. 2, c.
14, § 5, which among other things provided, that the matter
thus mentioned ‘may be written or printed in a common
legible hand and character, and with the like way of writing
or printing, and with the like manner of expressing numbers
by figures, as have been heretofore or are now commonly used
‘in the said courts respectively, and with such abbreviations
as are now commonly used in the English language,” &.
These statutes are important helps to an understanding of
the modern English decisions ; but, by express language, they
did not extend to the Colonies ; and they are not generally
deemed a part of our common law.?

1 Kilty Rep. Statutes, 249.
2 The State v. Reed, 35 Maine, 489; The State v. Hodgeden, 3 Vt. 481.

VOL. IL 11 [121]
§ 168 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

§ 167. Lord Hale says: “ Figures to express numbers are
not allowable in indictments, though sometimes literal num-
bers be allowable in returns; but, in indictments, the num-
bers, whether cardinal or ordinal, must be expressed in
Latin.” ! Though the mention here of “literal numders”
casts some obscurity upon the passagé, it plainly expresses
the idea that the reason why figures were inadequate, was
because they were not Latin. But the Roman numerals
were for many purposes deemed sufficient in pleadings and
in records ;? though a learned judge, who has investigated
this matter, has found no case in which such numerals were
adjudged to be sufficient (or insufficient) in indictments, the
books being silent on this exact point. But as our common
figures would not answer before the statutes of Geo. 2,* so
by the express language of these statutes they were inadmis-
sible afterward, as the reader will see who compares the two
statutes with each other. Therefore, though the English
books lay it down correctly for England, that figures are in-
admissible in indictments, their authority is of no weight in
this country ; the matter here and there resting on different
foundations.

§ 168. But our indictments must be in English. Are fig-
ures English? It has been laid down by the judges in some
of our States that they are ; and, on the whole, the American
doctrine is pretty plainly, that they are sufficient. They
have been held to be insufficient in New Jersey 7 and Indi-
ana,® under the common law of those States; though, in both
States, the matter was afterward set the other way by legisla-
tion. And in other States legislation has aided the same

1 9 Hale P. C. 170. 418; Winfield v. The State, 3 Greene;

2 Hawkins v. Mills, 2 Lev. 102; and
see the discussion and authorities cited
in Berrian v. The State, 2 Zab. 9.

8 See the opinion of Greene, C. J. in
Berrian v. The State, supra.

* Ante, § 166.

5 The State v. Reed, 35 Maine, 489.

6 The State v. Reed, 35 Maine, 489;
Kelly ». The State, 3 Sm. & M. 518;
The State v. Seamons, 1 Greene, Iowa,

[122]

Iowa, 339; The State v. Raiford, 7
Port. 101; The State v. Smith, Peck,
165 ; The State v. Hodgeden, 3 Vt.
481; Rawson v. The State, 19 Conn.
292,

7 Berrian v. The State, 2 Zab. 9.

8 The State v. Voshall, 4 Ind. 589 ;
Finch v. The State, 6 Blackf. 533.

®° Hampton ». The State, 8 Ind. 336;
Johnson v. The State, 2 Dutcher, 313.
GHAP. XIII. ] THE LANGUAGE, ETC.

§ 170

conclusion. Still it is deemed practically best that the
pleader should write out all dates in words; and considera-
tions of this practical utility have had their weight with those
judges who have deemed the same thing to be necessary in
matter of law.

§ 169. Where a complaint (the principle being the same
as in an indictment) charged the offence to have been com-
mitted “on the fifteenth day of July, 1855,” the allegation
of time was held to be fatally defective ; because, as observed
by the judge, “there should, at all events, have been words,
or at least letters, which have acquired an established use in
the English language, so added to or connected with the fig-
ures contained in it, as to describe or indicate with certainty
the era to which it was intended that they should refer.” 2
But it is sufficient that the abbreviation A. D. be placed be-
fore the figures ;* so the words Anno Domini, written in full,
are sufficiently English ;* also the words “in the year,” with-
out adding “of our Lord,” will be referred to the Christian
era: therefore they are adequate.5

§ 170. Our language is being constantly augmented by
words taken from other languages, and what is foreign to-
day may be English to-morrow. In a Vermont case, Red-
field, J., after saying that the words Anno Domini “ have be-
come literally English by adoption,” added: “ The same is
true of a very considerable number of terms in the language.
Most of these adopted terms have changed their costume,
while others have not. Phenomenon and memorandum are
as strictly English as any terms of the most purely Saxon de-

rivation.

1 Lazier v. Commonwealth, 10 Grat.
708; Cady v. Commonwealth, 10 Grat.
776.

2 Commonwealth v. McLoon, 5 Gray,
91, 93, opinion by Merrick, J. See
Commonwealth v. Penniman, 8 Met.
519. Qn the other hand, just such a
complaint has been held to be sufficient
in Connecticut. Rawson v. The State,
19 Conn. 292.

3 The State v. Hodgeden, 3 Vt. 481.

Others are not the less so because they still retain

4 The State v. Gilbert, 13 Vt. 647.

5 Hall v. The State, 3 Kelly, 18, 22 ;
Engleman ». The State, 2Ind. 91. In
the latter of these cases, Perkins, J.
observed : “It is a fact, historically
known, that Christian nations have gen-
erally adopted the Gregorian calendar,
numbering the years from the birth of
Christ. This is a Christian State, and
has adopted the same.” See also post,

§ 241.
[123]
§172 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

their foreign dress; for example, pro tempore, sine die,
nemine contradicente, bona fide, Anno Domini; as well as
ennui, sang froid, beaux, cap-a-pie, téte-d-téte, and thousands
of others, which are well understood by mere English read--
ers.” }

§ 171. When indictments were in England required to be
in Latin, they were held not to be vitiated by false Latin.
The doctrine on this subject is extended by Hawkins,? as fol-
lows: ‘It seems to be holden generally in some books, that
no false Latin will vitiate an indictment. And it seems to be
holden by my Lord Coke,’ that an indictment shall not be
quashed for any false concord between the substantive and
the adjective, as prefate regi, or prefato reging ; because,
though the expressions be incongruous, yet they are Latin
and significant. Neither do I find this opinion denied by any
other authority, and therefore I leave it to be considered,
whether it may not still be maintained, especially consider-
ing that the sense appears as fully, as clearly, and expressly
from such Latin as if it had been never so properly expressed.
And it seems also, that the like reason may be given for the
case in Yelverton, wherein an indictment of forcible entry,

_finding that the defendant wnum messuagium ingressum fecit,
without adding the word in before messuagium, was adjudged
good ; but it is said in the book, that this is not false, though
it is not fine Latin ; by which it seems to be implied, that, if
it had been false Latin, it might have vitiated the indictment.

§ 172. “ However, it seems to be settled at this day, that
an indictment against two or more, laying the fact charged
against them in the singular number, is insufficient ;® as
where it finds, that A and B insultum fecit; the reason
whereof perhaps may be this, that it appears somewhat doubt-
ful upon the face of the indictment whether the jurors intend-
ed to charge more than one, because the fact is laid in the
singular number, which it seems absurd to apply to more
than one, and therefore the indictment is insufficient for its

1 The State v. Gilbert, 13 Vt.647, 8 Long’s case, 5 Co. 119, 121.
651. * Reg. v. Fenton, Yelv. 27, 28.
2 2 Hawk. P. C. c. 25, § 86-88, 5 See post, § 222 and note.

[124]
CHAP. XII.] ' ‘THE LANGUAGE, ETC. § 174

uncertainty. As to Fulwood’s case,! wherein Croke reports
the contrary to have been resolved, it is certain, that the verb
in the record is in the plural number. And as to the cases
wherein faults of this kind have been amended in original
writs, as teneat conventionem for teneant, and such like, it
may be answered, that those emendations were made by vir-
tue of the statutes of Amendments, which extend not to
criminal proceedings. And as to the case in Bulstrode’s Re-
ports,” wherein it is said to have been resolved that an in-
dictment of felony against more than one in the singular
number was amended, and thereupon the defendants were
adjudged to be hanged, it may be answered, that it doth not
appear in what part of the indictment the singular number
was put for the plural; neither is the said resolution, in
whatsoever sense it be taken, reconcilable with the later
authorities.

§ 173. “But it is said, that a fault of this kind is made
good by the grand jury’s finding the indictment billa vera
against one of the defendants only ; the reason whereof per-
haps may be this, that the uncertainty of the indictment is
supplied by such an indorsement. But this seems contrary
to the authorities relating to this matter. Also it hath been
adjudged, that, where a bill of indictment lays the fact in the
plural number against two, and it is found billa vera as to
one of them only, it is good; and yet the verb in the plural
number in the record must, after such a finding, be applied
only to one person: but to this it may be answered, that there
is no uncertainty either in the bill or the indorsement. Also
it hath been adjudged, that the word solvet instead of solvat
is not fatal in a judgment, but that a new one shall be given.

§ 174. “If any material part either of the body or caption
ef an indictment be expressed in a word which is not Latin,
as by the word erectaverunt, instead of erexerunt, or brachia
sua dextra, instead of brachio, or presentant. existit instead
of presentat., the indictment is insufficient (except in some
special cases hereinafter set forth) ; for no one can say, that
the bare giving a Latin termination to a word unknown in

1. Fulwood’s cage, Cro. Car. 488. 2 Odington v. Darby, 2 Bulst. 35.
11* [125]
§ 175 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

that language, can make it become Latin ; and, if the want
of one material word may be supplied, why not the want of
two, and soon? It hath indeed been holden, that a fault of
this kind, as imaginavit for imaginatus est, ave for avia, is
amendable in an original writ, which yet is denied by others,
if it be in a substantial part. However, it seems certain, that
such amendment must depend upon the statutes of Amend-
ments, which extend not to criminal proceedings.

§ 175. “Also it seems, that it is no less a fault to make
use of a word which is proper Latin in another sense, wheth-
er entirely different, or of a much larger extent, than that in
which it is used, as of the word collis for colli, or mala ars
for veneficium. Also it seems agreed, that an abbreviation
not justified by legal usage, as dno. without a dash for domino,
R. Rs. for regni regis; or the expression of a number in fig-
ures that are not Roman, is equally fatal as it would have been
wholly to have omitted what you endeavor in such manner to
express. Also it hath been adjudged, that an inquisition find-
ing that J. S. seipsum emersit, &c., is insufficient ; because
emergo doth not signify to put into, but to rise out of the
water. Also it is said, that an indictment has been quashed
for the words pace regia instead of pace regis; but it appears
not what was the nature of the indictment, nor in what part
of it these words are used, and therefore I would suppose it
to have been in such part of some indictment wherein those
expressions are so material that they cannot be rejected as
surplus and immaterial ; for it seems to be a settled rule, that
nothing which may be so rejected shall vitiate an indictment ;
as where the year of the Lord is written in common figures,
but the year of the king is well expressed ; or where an indict-
ment is said to be taken before J. S. and J. N. duo justiciariis,
&c. Also it seems, that the use of a word whiclr is not prop-
er Latin, as contrafacere, for counterfeiting, may be made
good by precedents. And there can be no doubt but that
terms of art, which are necessary in all indictments, as felo-
nia, murdrum, burglaria, ‘and such like, are good, though
they be not good classical Latin ; for they are of such a com-

lex and peculiar signification as no proper Latin word wil
[126]
CHAP. XIII.] THE LANGUAGE, ETC. § 176

come up to. Also it hath been adjudged, that a literal trans-
lation of a statute into Latin is sufficient, if intelligible, let it
be never so inelegant ; as where it sets forth that the defend-
ant super caput suum proprium did forge, meaning that he
did it of his own head.

§176. “It seems to be holden generally in some books,
that the use of a word which is either not Latin at all, or not
Latin in the sense in which it is used, may, in many, cases, be
holpen by an Angilicé, as erectaverunt, Anglicé did erect;
retes, Anglicé nets; pellices, Anglicé skins ; ollis eriis, An-
glicé brass pots. But to this it may be answered, that, as to
the three first of these instances, what is said concerning this
matter is only spoken of by the bye, and did not come into
judgment ; and as to the last of them it may be said, that it
doth not concern a criminal proceeding, but a civil action,
and that after a verdict ; and if the purport of it be, that an
Anglicé helps the use of a word that is not Latin in an action
of trover, though damage be expressly given for it, it is con-
tradicted by many other express resolutions, in which it seems

-to have been taken as a settled rule, that, where damages are
expressly given for a thing expressed by a word that is not
Latin, it is no way helped by an Anglicé. Also it hath been
adjudged, that an indictment for taking octo discas, Anglicé
dishes, is insufficient ; and this is agreeable to what is laid
down as a settled rule in many books, namely, that, where
there is a proper Latin word for the thing intended to be ex-
pressed, no Ang'licé will help an improper one, as it will do
where there is no proper Latin word, because, in such a case,
there is such a necessity either to use a feigned one or none at
all. Also it hath been adjudged, that, where there is a prop-
er Latin word, an Anglicé cannot make good the use of any
other, either in a more special or extensive signification than
the Latin language will bear, as to make the words malas artes
signify witchcraft, or riscus, a box full of linen, or fulcrum
tecti, a field bed with a tester and curtains; in which cases the
judges will take no manner of notice of what comes under the
Anglicé beyond the strict signification of the Latin.” !

1 2 Hawk. P. C. c. 25, § 86-88.
[127]
§ 178 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL,

§ 177. The same doctrines apply to indictments now they
are in English. In a previous chapter,! there were mentioned
some things of this general sort. If the indictment is in false
grammar ;* or, if the spelling is wrong,’ as where the word
“two” is spelled “too,” 4 or “assault” is spelled “assalt,”’® or
“twelfth ” is spelled “ tweflth,” the f and / taking the places
of each other ;® or, if there is any other clerical error which
cannot mislead ;* it will not be held ill for the defect. Ina
South Carolina case, an indictment for bastardy was adjudged
to be bad because it alleged the defendant to be the “ farther,”
instead of “father” of the bastard child; but this was plainly
splitting the matter fine, since “ farther,” though it is a word
in the language, could not have its legitimate meaning here,
and, as an indictment is addressed to the ear, not to the eye,®
every person who heard this indictment read would know that
“father”? was what was meant. And more fine, quite too
fine, is a judgment by the majority of the court in North
Carolina, where, in an indictment for murder, the word
“ breast,” as the place on which the wound was inflicted, was
spelled “ brest,’” — a matter not at all cognizable by the ear,
therefore, on principle, not to be regarded, — yet the indict-
ment was pronounced insufficient.

§ 178. There are various other points which would prop-
erly enough come within this chapter for consideration ; but
it was thought best to distribute them among other chapters,
therefore the present discussion will close here. The law, in
its language, seeks to accomplish what is useful, rather than

1 Ante, § 61.

° Reg. v. Stokes, 1 Den. C. C. 307;
The State v. Hedge, 6 Ind. 330; The
State v. Wimberly, 3 McCord, 190.

8 The State v. Molier, 1 Dev. 263.

* The State v. Hedge, supra.

5 The State v. Crane, 4 Wis. 400.

6 The State v. Shepherd, 8 Ire. 195,
197. In this case, the defect, if such
it were, was cured by a statute; but
Ruffin, C. J. said: “ We are inclined
to the opinion, that the indictment is
good at common law ; because, al-

[128]

though the word ‘tweflth’ is spelt
wrong, by transposing the letter f and
placing it before instead of after J, yet
it is impossible to mistake the meaning.
The false spelling makes no other word
that could mislead,’’

7™ The State v. Wimberly, supra;
The State v. Thompson, Wright, Ohio,
617.

8 The State ». Caspary, 11 Rich. 356.

® Ante, § 61, note.

1 The State v. Carter, Conference,
210; Anonymous, 2 Hayw. 140.
CHAP. XIII. ] THE LANGUAGE, ETC. § 178°

what is pleasing to the taste: it first adopted a barbarous
Latin for its records, that they might be permanent and ex-
act ; it afterward, when it thought it could trust the English,
cast off its first love and took the later flame, that it might
render itself still more serviceable to the present time, and
transmit its image the better to posterity.

[129]
§ 179, PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

CHAPTER XIV.

THE ARRANGING OF THE MATTER OF THE INDICTMENT IN DI68-
TINCT COUNTS.

§ 179. Tue word count is used in somewhat different
senses in the law of pleading. Thus Blackstone says, the first
of the several pleadings in a civil cause “is the declaration,
narratio, or count, anciently called the tale; in which the plain-
tiff sets forth his cause of complaint at length.”! Our Amer-
ican Gould, who wrote later, employs the following language :
“The terms ‘declaration’ and ‘count’ are frequently used,
especially in the older books, as convertible terms ; but prac-
tice has introduced the following distinction: where the plain-
tiff’s complaint embraces only a single-cause of action, and
he makes only one statement of it, that statement is called,
indifferently, a ‘declaration,’ or a ‘count’; though the for-
mer term is the more usual at the present day. But where
the suit embraces two or more causes of action (each of which
requires, of course, a distinct statement) or where the plain-
tiff makes two or more different statements of one and the same
cause of action, each several statement is called a count, and
all of them collectively taken constitute the declaration. In
all cases, however, in which there are two or more counts, —
whether there is actually but one cause of action or several, —
each count purports upon the face of it to disclose a distinct
right of action, unconnected with that stated in any of the
other counts; so that, upon the face of the declaration, there
appear to be as many different causes of action as there are
counts inserted. And, therefore, whether a plaintiff whose
declaration contains more than one count claims a recovery
upon one right of action only, or upon several, cannot appear
except in evidence. Practically, however, the defendant can
seldom be left in doubt on this point.” ?

1 3 Bl. Com, 293. 2 Gould Pl. c. 4, § 2, 3.
[130] ,
CHAP. XIV.] DISTINCT COUNTS. § 181

§ 180. In the criminal law, the indictment was never
called the count. But when it was desirable to prefer against
one defendant, or one company of defendants inditted to-
gether, several distinct and unconnected charges in one in-
dictment, the indictment was divided in the same manner as
was the declaration in corresponding circumstances, and then
the name of count was given to each of the divisions, the
same as in the civil department of the law. On this subject
Chitty observes :1 “It is frequently advisable, when the crime
is of a complicated nature, or it is uncertain whether the evi-
dence will support the higher and more criminal part of the
charge, or the charge precisely as laid, to insert two or more
counts in the indictment. This practice is indeed the more
necessary, because, though the petit jury may find the pris-
oner guilty of a part and acquit him of the residue, the grand
jury cannot separate the parts of a count, but must either
find a true bill, or throw out the whole [a reason, however,
which, owing to our different course of procedure,? has little
weight in the United States]; while they may find some
whole count and reject others from the indictment. Thus,
when circumstances render the evidence dubious, it is usual
to join a count for feloniously breaking out, with larceny in a
dwelling-house. For the same reason, it is usual to add to
an indictment under the 39 Geo. 3, c. 85, for embezzlement,
a count for stealing at common law. And in an indictment
for burglary, to insert one count for a burglarious entry with
intent to steal the goods of A. B., and stealing them, and an-
other count for the same burglary with intent to steal the
goods of another person, and sometimes a third or more for
a burglary with intent to kill and murder. And no doubt
can now be entertained that this course is as legal as it is
advantageous ; for it is even no objection, either upon demur-
rer or upon arrest of judgment, that separate offences of the
same nature are joined against the same defendant.

§ 181. “The only mode,” this writer goes on to say, —
and by quoting him here we anticipate some matters which

1 1 Chit. Crim. Law, 248 et seq. 2 Ante, § 137.
[1381]
§:182 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

will be more fully discussed in another place,1— “ of object-
ing to a joinder of such offences in case of felony, is by an
application to the court to quash the indictment before plea,
or to compel the prosecutor to elect which charge he will try
in a subsequent stage of the proceedings. But the court will
only listen to such a request in cases of felony, &., and
when they see that the charges are actually distinct, and may
confound the prisoner, or distract the attention of the jury ;
and they will not listen to it in a case of misdemeanor ; and
it is the common practice to receive evidence of several libels,
and of several assaults, under the same indictment. How-
ever, where the indictment comprehends several distinct mis-
demeanors charged against different persons, it may be a
good ground of application to the discretion of the court to
quash the indictment, on account of the inconvenience which
might result at the trial from joining different counts against
different offenders.

§ 182. “The introduction of several counts, therefore,
which merely describe the same transaction in different ways,
cannot in general be made the subject of objection ; for the
defendant can neither demur, apply to the court to relieve
him, nor move in arrest of judgment. It seems also to follow
from these principles, that every separate count should charge
the defendant as if he had committed a distinct offence, be-
cause it is upon the principle of the joinder of offences that
the joinder of counts is admitted ; and to the supposed second
or third offence in each count should be prefixed the state-
ment, that the jury super sacramentum suum alterius presen-
tant. . . . Though every count should appear, upon the face
of it, to charge the defendant with a distinct offence, yet one
count may refer to matter in any other count so as to avoid
unnecessary repetitions ; as, for instance, to describe the de-
fendant as ‘ the said,’ &c. And though the first count should
be defective, or be rejected by the grand jury, this circum-
stance will not vitiate the residue. But, if the other counts
refer to a writ or warrant improperly set forth in the first,
the whole indictment will be invalid.’ 2

1 Post, § 197 et seq. 2 1 Chit. Crim. Law, 248 - 250.
[182]
CHAP. XIv.] DISTINCT COUNTS. § 184

§ 183. This statement of the doctrine of counts, whereby
several apparently distinct charges are embraced in one in-
dictment, wherein but a single offence is really meant to be
set out, opens to us 4 glimpse of that vast phenomenon of our
law, in which fact is seen trampled under the feet of fiction,
till, humbled by bruises and insults, it is lifted up to shine
the brighter for its late degradation. Several counts are per-
mitted to be joined, because the law allows ‘the joinder of sev-
eral distinct offences; yet, if, in felonies and many misde-
meanors, the judge finds it to be fact and not fiction that there
are more offences than one intended to be embraced in the
indictment, he will arrest the proceedings; while, if the in-
dictment spoke the truth, and professed to be aiming at one
offence, set out in several forms, the proceedings would be
arrested on that account; and still, as the result of all this,
the truth at last appears more bright, in the verdict which
the jury are able to render by reason of the charges having
been made thus separate and distinct, than if she had never
been beaten down by fiction.

§ 184. At the same time, this departure from truth, like
all other departures of the kind in the various relations and
affairs of life, leaves its residuum of trouble behind. If the
jury, for example, bring in a verdict of guilty covering all
the counts, shall the judge sentence the prisoner as for so
many distinct offences? If there is a writ of error, and there
appears to be a judgment as for as many distinct offences as
there are counts, will the judgment therefore be reversed?
These and various other questions, growing out of the union
of fact and fiction in the doctrine and practice of separate
counts, vex not a little the learning of our criminal law pro-
cedure. The several questions here alluded to will be dis-
cussed in their proper places. Meanwhile we shall direct
‘attention to a few points connected with the foregoing state-
ment of the doctrine of counts; and, in the next chapter,
‘proceed to consider the matter somewhat further, in connec-
tion with the general doctrine of the joinder of distinct offen-

ces in a single indictment.
VOL. I. 12 [133]
§ 187 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

§ 185. It is customary, as already intimated, for each
count to have the commencement? “ the jurors aforesaid, on
their oath aforesaid, present.” And in general, if this is
omitted from any count, the particular count is for this rea-
son bad.2 But in one case where the third count omitted
these words, the objection was held to be obviated by the fact,
that the record showed the grand jury to have been sworn in
open court,t— a conclusion which appears to rest well on rea-
sons brought out in a previous chapter.65 The same doctrine
applies to the concluding part of the counts; the words
“against the peace,” &c., must be found in each one ;® like-
wise, if the indictment is on a statute, the words ‘‘against the
form of the statute.”’* It has been laid down in broad terms,
that “each count in an indictment must be sufficient in itself,
and averments in one cannot aid defects in another.” §

§ 186. Yet it has been held not to be necessary to carry the
fiction of distinct offences so far as to allege, in each count

subsequent to the first, that the offence therein set out is

other than the one mentioned in the preceding count. And
it was intimated, that such an express allegation would, in a
ease where but one offence was really meant, be improper.®

§ 187. Though, as already mentioned, repetitions may be
avoided by referring in one count to matter contained in an-
other,” yet there is a limit to what the reference will carry
with it. If the first count describes the wife of the defend-
ant, and the second count mentions the defendant’s “ said
wife,” this sufficiently points to the same person who was first
described." But where the first count charged the defendant
with having assaulted ‘“ Esther Ricketts, an infant above the
age of ten and under the age of twelve years,” with intent to

1 Ante, § 182. 8 Worden, J. in the State v. Longley,
2 Ante, § 145. 10 Ind. 482, 484.
8 The State v. McAllister, 26 Maine, ® The State v. Rust, 35 N. H. 438,
374, 441, And see ‘Lazier v. Commonwealth,
* Huffman v. Commonwealth, 6 10 Grat. 708.
Rand. 685. 10 Ante, § 182. And see the civil case
5 Ante, § 145 et seq. of Frazier v. Felton, 1 Hawks. 281.
6 The State v. Cadle, 19 Ark. 613. 11 Reg. v. Dent, 1 Car. & K. 249. See

7 Reg. v. Purchase, Car. & M.617, also The State v. Nelson, 29 Maine,
620 ; The State v. Soule, 20 Maine, 19. 329,
[184]
CHAP. XIV.] DISTINCT COUNTS. § 187

carnally know her ; and the second count charged, in a differ-
ent form, an attempt to have carnal knowledge of “ the said
Esther Ricketts”; the reference in the second count, while
it pointed out the person, was held not to carry with it the
allegation, that she was “an infant above the age of ten and
under the age of twelve years.’’®

2 Reg. v. Martin, 9 Car. & P. 215.
[135]
§ 189 PLEADING AS RESPECTS THE INDICTMENT. [BOOK HL.

CHAPTER XV.

DUPLICITY, JOINDER OF OFFENCES, AND COMPELLING THE PROSE-
CUTOR TO ELECT ON WHAT CHARGE TO PROCEED.

Sect. 188. Introduction.
189-196. Duplicity.
197-204. Joinder of Offences.
205-213. Compelling the Prosecutor to elect.

§ 188. Tux several subjects mentioned in this title are so
connected as to render their discussion in one chapter desir-
able, yet not so as to prevent our looking at them one after
the other in their order. Let us consider, therefore, —

I. Duplicity.

§ 189. Says Gould, treating of the civil department of our
law: “ Duplicity, or double pleading, consists in alleging, for
one single purpose or object, two or more distinct grounds of
complaint or defence, when one of them would be as effectual
in law as both or all. This, by the principles of the common
law, is a fault in all pleading; because it produces useless
prolixity, and always tends to confusion, and to the multipli-
cation of issues.”1 ‘ Duplicity in a declaration consists in
joining, in one and the same count, different grounds of ac-
tion, of different natures, or of the same nature, to enforce
only a single right of recovery. This is a fault in pleading,
only because it tends to useless prolixity and confusion, and
is therefore only a fault in form.’’? Similar to this is du-
plicity in the indictment ; it is the joinder of two or more
distinct offences in one count. The criminal law never per-
mits this;? yet what are two or more offences within the rule,

1 Gould Pl.c. 8, § 1. United States v. Sharp, Peters C. C.

2 Tb. c. 4, § 99. 131; The State v. Bridges, 24 Misso.

8 The State v. Howe, 1 Rich, 260; 353; Commonwealth v. Symonds, 2
Recd v. People, 1 Parker C. C..481; Mass. 163.

[136]
CHAP. XvV.]

DUPLICITY, JOINDER, ELECTION. § 190

and what are the consequences of such joinder, are matters
requiring explanation.

§ 190. In the work on the Criminal Law, we saw how
criminal transactions are cut up, so to speak, into specific
crimes ; how some crimes are included in others of larger
dimensions; and how, in yet other instances, the criminal
transaction may be so divided, that, instead of there being
one crime covering the whole, with smaller crimes included
within the one, there shall be cut out of the whole a variety
of crimes in many other different ways.! Now it is most ob-
vious to say, that, if the indictment charges the defendant
with an offence which in its nature includes several smaller
ones, — as, if it charges a murder, which includes a man-
slaughter, a battery, and an assault,—it is not for this reason
multifarious.2 In like manner, the provisions of the law may
be such that a particular crime may be committed in different
ways ; then, if the indictment charges, in a single count, the
commission of this crime in all these ways, coupling the ways,
as they are specified one after another, by the conjunction
and, it is not open to the objection we are considering. For
example, it is the same in law to cause a thing to be done as
to do it; therefore a count which charges that the defendant
unlawfully, &c., destroyed and caused to be destroyed, a
quantity of potatoes mentioned, is not deemed to contain al-
legations of two. offences. ‘“ And it is the usual practice,”
says Starkie, “to allege offences cumulatively, both at com-

1 Crim. Law, I. § 796 - 823.

2 It was held in Massachusetts, that
an indictment on the Revised Statutes,
c. 133, § 12, for an attempt to set fire
to a building, is not bad for duplicity,
though it sets forth a breaking and
entering of the building, as well as
an attempt in the building, after the
breach and entry, to set fire to it. Said
Dewey, J.: “It is true that they [the
counts] set forth a breaking and enter-
ing, in the night time, of a certain
building therein described ; but that al-
legation is only introduced as a part of
the various acts charged to have been

12*

committed by the defendant, all which
combined, authorize the charge of the
specific offence made punishable by
Rev. Sts. c. 133 § 12. It is not unusual
to find, in a count properly framed, all
the essential elements of a count for a
minor offence, and presenting the objec-
tion of duplicity quite as strongly as the
present case. Thus, in an indictment
for murder or manslaughter, there is a
full and technical charge of an assault
and battery.” Commonwealth v. Hor-
ney, 10 Met. 422, 425.
8 The State v. Kuns, 5 Blackf. 314.

[187]
§ 191 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

mon law and under the description contained in penal stat-
utes ; as, that the defendant published and caused to be pub-
lished a certain libel, that he forged and caused to be forged,
&c. In Fuller’s case,! it was objected that the second count
of the indictment comprehended two distinct offences, name-
ly, an endeavor to seduce, entice, and stir up M. L. to com-
mit mutiny, and also an endeavor to seduce, entice, and stir
up M. L. to commit traitorous and mutinous practices. But
as the first count of the indictment was holden to be sufficient,
the judges gave no opinion upon the second ; Mr. Baron Per-
ryn, however, observed, that it would probably be found to be
a sufficient answer to this objection, that, though this charge
might have been branched out into separate offences, the
whole might be but the parts of one fact of endeavor, which
must be stated as it is.”? -

§ 191. It is not, therefore, an objection to an indictment,
that a part of the allegations might be lopped off and yet the
indictment remain sufficient. Where, for instance, a statute
forbids several things in the alternative, it is usually construed
as creating but one offence ; and the indictment may charge
the defendant with the commission of all the acts, using the
conjunction and where the statute uses the disjunctive or;
or, on the other hand, the indictment may contain but one or
two of the things, at the election of the pleader.? Thus, where
the allegation was that the defendant sold spirituous liquors,
to wit, rum, brandy, whiskey, and gin, in less quantities than
one quart, without license, and it was objected that there
were here four offences set down in one count, the court over-
ruled the objection, saying: “The selling of any of the li-
quors named would be an offence; but there isno more reason
why an offender should be indicted separately for each, than
there would be to charge a thief, who had stolen a suit of
clothes, in separate counts for the ‘coat, waistcoat, &c.’’ 4

1 Rex ». Fuller, 2 Leach, 4th ed.790, Leigh, 721. In like manner under the

1 East, P. C. 92. English statute 11 Geo. 4 & 1 Will.
21 Stark. Crim. Pl. 2d ed. 246, 4, c. 66, § 20, a person may be charged
5 Crim. Law, 1. § 274, 803, 810. with “ destroying, defacing, and injur-

* The State » Whitted, 3 Ala. 102. ing” a register; for here is but one
And see Tefft v Commonwealth, 8 offence, though the words of the statute
[138]
CHAP. XV. ] DUPLICITY, JOINDER, ELECTION, § 193

§ 192. It is said in Archbold’s Pleading and Evidence :}
“‘ Laying several overt acts in a count for high treason is not
duplicity ;? because the charge consists of the compassing, &.,
and the overt acts are merely evidence of it; and the same
as to conspiracy.....So a count in an indictment charg-
ing a man with one endeavor to procure the commission of
two offences is not bad for duplicity ; because the endeavor
is the offence charged.?....And it is now generally un-
derstood that a man may be indicted for the battery of two or
more persons in the same count ;* or for a libel upon two or
more persons, when the publication is one single act; with-
out rendering the count bad for duplicity. In felonies also,
the indictment may charge the defendant, in the same count,
with felonious acts with respect to several persons, — as, in
robbery, with having assaulted A and B, and stolen from A
one shilling, and from B two shillings, —if it was all one
transaction.” ® Thus also, where two commit a joint assault
with intent to murder, the one with a knife and the other
with a gun, a count in the indictment charging them jointly
is not objectionable for duplicity.” And if a man shoots at
two persons, intending to kill one, but entirely regardless
which, he may be convicted on an indictment charging a joint
assault upon both.’

§ 193. There is a Connecticut case in which the informa-
tion alleged, that, on a day mentioned, the defendant A did
sell, and did offer to sell, by himself and by an agent, wines,
spirituous liquors, and other intoxicating beverage, to one B,
being addicted to habits of intoxication, said A knowing his

are “ shall wilfully destroy, deface, or
injure,” &c. Reg. v. Bowen, 1 Den.
C. C. 22, 1 Cox C. C. 88,1 Car. & K.
501. See also The State v. Houseal, 2
Brey. 219; The State v. Nelson, 29
Maine, 329. ,

1 Archb. PL. & Ev. 13th Lond. ed. 54.

2 Anonymous, J. Kel. 8.

8 Rex v. Fuller, 1 B. & P. 180.

4 Rex v. Benfield, 2 Bur. 980, 984 ;
see 2 Stra. 980; 2 Lord Raym. 1572,
contra. In the case in Burrow, the
question was pertinently asked, “ Can-

not the king call a man to account for
a breach of the peace, because he broke
two heads instead of one? How many
informations have been for libels upon
the king and his ministers?” As sus-
taining the text also, see Anonymous,
Lofft. 271,

5 Rex wv. Jenour, 7 Mod. 400; Rex
v. Benfield, supra.

6 Reg. v. Giddings, Car. & M. 634.

7 Shaw v. The State, 18 Ala. 547.

8 Commonwealth v. McLaughlin, 12

Cush. 615.
[139]
§ 194 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

‘to be.so addicted, and said B being also a common drunkard.
Thereupon the court held, first, that the information was not
bad for duplicity, because it charged A with selling, and of-
fering to sell, as these acts may have been parts of one and
the same transaction ; secondly, that it was not obnoxious to
this objection, because it averred that A did the acts alleged,
by himself and by an agent, as those acts may have been joint,
and -done by both, in conjunction ; and, thirdly, that for the
same reasons it was not bad for uncertainty or repugnancy.
And upon the subject of duplicity, Waite, J. made the fol-
owing observation ; “ No matters, however multifarious, will
operate to make a declaration or information double, provid-
ed, that all taken together constitute but one connected
charge, or one transaction.” 1 And this observation may be
accepted as expressing the common doctrine, when we add
to it the words “ provided also, that, in any view which the
law will take of the one transaction, it may be regarded as
constituting but one offence.” ? Perhaps upon the doctrine
thus stated and qualified may be justified what Mr. Archbold
tells us is the English practice in indictments for burglary,
namely, to charge the defendant in one count with having
broken and entered the house with intent to commit a felony,
and also with having committed the felony intended.?

§ 194. If an indictment describes one offence, and then
adds such words only as are in part sufficient to describe an-
other, it is not therefore double ;* to be so, it seems, it must
set out each of the two offences in adequate terms.5

1 Barnes v. The State, 20 Conn.
232, 235.

2 Thus, a conviction on an indictment
charging assault, battery, and false im-
prisonment is not bad for duplicity ; for,
said Potts, J.: ‘‘ The assault, the bat-
tery, the false imprisonment, though in
themselves separately considered they
are distinct offences, yet collectively
they constitute but one offence.” Fran-
cisco v. The State, 4 Zab. 30, 32.

8 Archb. Crim. Pl. 13th Lond. ed. 54.
See Crim. Law, I. § 893. And sec Reg.
v. Bowen, | Den. C. C. 22, 28, where

[140]

Parke, B. said to counsel: “ Your ob-
jection would apply to every case of a
burglary and w larceny. There would
be, first, the burglary; secondly, the
larceny ; thirdly, the compound or sim-
ple larceny ; fourthly, the stealing ina
dwelling-house.” And Tindal, C. J.
added : “ This is one set of facts; it is
all one transaction ; the prisoner could
not have been embarrassed.”

* Jillard v. Commonwealth, 2 Casey,
169 ; The State v. Palmer, 35 Maine, 9.

5 Commonwealth v. Tuck, 20 Pick.
356, 360.
CHAP. XV.] DUPLICITY, JOINDER, ELECTION. § 196

§ 195. In Tennessee an indictment was held to be double
and therefore bad, where, being against an overseer of a road,
it averred, that the road was ruinous and out of repair, that it
was not measured and mile-marked, and that no posts of du-
rable wood were set up at each mile. And the reason of this
was explained by Green, J. as follows: “ By the act of 1804,
c. 1, § 9, overseers of roads are made indictable for failing
to keep the road in repair ; and, as no specific penalty is fixed,
they may of course be punished as persons guilty of other mis-
demeanors are punishable. By the act of 1819, c. 26, § 5, it
is provided, that the grand jury may present overseers of roads
for failing to mile-mark, and set up post-marks, &c., and that
on conviction he [they] shall be fined in a sum not exceed-
ing five dollars. These acts constitute the offence of failing
to keep the roads in repair, and the offence of failing to mile-
mark the road and set up posts at each mile, — entirely dif-
ferent and distinct offences ; the punishment of the one being
limited to a fine of five dollars, while the punishment of the
other may be by a fine as high as fifty dollars. The indict-
ment is therefore double ; and, for that reason, vicious.” !

§ 196. Archbold says: “In civil actions, the usual mode
of objecting to pleadings for duplicity is by special demurrer ;
it is cured by general demurrer, or by the defendant’s plead-
ing over. In criminal cases, the defendant may object to it
by special demurrer, perhaps also upon general demurrer ;
or the court in general, upon application, will quash the in-
dictment. But it is extremely doubtful whether it can be
made the subject of a motion in arrest of judgment or of a
writ of error ; and it is cured by a verdict of guilty as to one
of the offences, and not guilty as to the other.””2_ The Amer-
ican authorities are not yniform as to how duplicity in the
indictment may be taken advantage of. Thus, the South
Carolina court has held, that it may be by motion in arrest of
judgment ;* and in other American cases this method ap-

1 Greenlow, ». The State, 4 Humph. Jast point is The State v. Miller, 24
25, 26. Conn. 522.

2 Archb. Crim. Pl. & Ev. 13th Lond.. 8 The State o. Howe, 1 Rich. 260 ;
ed. 54. An American authority to the overruling, it seems, the earlier case of

[141]
°§ 197 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

pears to have been resorted to without objection.1 But in
Tennessee it is laid down, that this defect can be reached
only by a motion to quash or by a demurrer, the motion in
arrest of judgment not being available ;? and to the latter ef-
fect there is pretty distinct intimation by the court in Massa-
chusetts.2 In matter of principle, duplicity would seem to be
a defect of such mere form as ought to be deemed cured by
the verdict ; because the objection is one which relates mere-
ly to the convenience of the defendant in making his defence,*
while by not taking the objection he seems to have waived it.
But there may be error in the sentence ; and, looking at the
record after sentence, the court should give to it the same
consideration as if the two offences were charged in two sep-
arate counts.

Il. Joinder of Offences.

§ 197. The method by which advantage is to be taken of
any error in the indictment depends somewhat upon the na-
ture of the error, and this is matter to be considered in subse-
quent parts of this volume. What was said in the last sec-

The State v. Johnson, 3 Hill, S. C.1,
of which case, however, no mention is
made in the report of the former. The
court cite those observations of Mr.
Archbold which are quoted in our text;
but say truly, that he refers to no au-
thority sustaining his views. They con-
sider, that the two cases of Rex v. Rob-
erts, Carth. 226 ; and Rex v. Clendon,
2. Stra. 870, the latter not being weak-
ened on this particular point by being
overruled as to its main matter in Rex
». Benfield, 2 Bur. 980, 984; to be suffi-
cient English authority on which to rest
their decision. I will observe, that, in
both these cases, the question concern-
ing what seems to have been deemed
duplicity, was raised by motion in ar-
Test of judgment, and that in both,
the motion was sustained. The cases,
however, were brief ones, apparently
not much considered, and there was
no point made as to whether the mo-
tion in arrest was the proper means

[142]

by which to take advantage of the du-
plicity.

1 Commonwealth v. Symonds, 2
Mass. 163; Barnes v. The State, 20
Conn. 232 ; Greenlow v. The State, 4
Humph. 25 ; The State v. Nelson, 8 N.
H. 163 ; confirmed in The State v. Fow-
ler, 8 Fost. N. H. 184, 191.

2 The State v. Brown, 8 Humph. 89.

3 Commonwealth v. Tuck, 20 Pick.
356, 361.

* However, in The State v. Howe,
supra, it is also observed, with consider-
able force, that, in a case of duplicity
in the count, “‘ the court must be great-
ly embarrassed in the sentence to be
pronounced.” p. 261. Yet to me it does
not seem, that embarrassment of this
sort can be much greater where the two
offences are charged in one count, than
it is where they are charged in two
counts. In the latter case, nobody pre-
tends that a motion in arrest of judg-
ment will lie.
CHAP. XV.] DUPLICITY, JOINDER, ELECTION. § 198

tion introduces us to the difficulties which beset the discus-
sion under the present sub-title. The joinder here to be
treated of is such as occurs when two or more counts are
made to constitute one indictment. We saw, in the last
chapter, that, in such a case, whether there are more offences
than one really meant to be alleged against the defendant or
not, in theory of law each count is for a separate crime, and
there are as many distinct crimes set out as there are counts.
May, therefore, any number of distinct crimes — crimes act-
ually meant to be other than the same, and covering sepa-
rate transactions — be alleged in a single indictment? If
not, what is the rule on the subject? Now, the answer to
this question is one thing when made with reference to a par-
ticular form of taking the objection, another thing when made
with reference to some other particular form, and so on with
the rest. The general doctrine was stated in our last chap-
ter in a quotation from Chitty.

§ 198. In the work on the Criminal Law, some distinctions
were stated necessary to be examined here. One of these is,
that, according to the English practice and the practice pre-
vailing also in most of our States, there cannot be a convic-
tion for a misdemeanor on an indictment.-for felony.2 And
if we examine the reasons‘on which this distinction rests, we
shall see, that, in States where it prevails, a count for a mis-
demeanor and a count for a felony cannot be joined in the
same indictment. But suppose they are joined, what is the
consequence ? In one case, where the two counts, the one
for felony and the other for misdemeanor, were both founded

1 Ante, § 180-182.

2 Crim. Law, I. § 814 - 823.

3 Hilderbrand v. The State, 5 Misso.
548 ; Rex v. Gough, 1 Moody & R.71.
In England, the court has even disap-
proved, in strong terms, of the grand
jury’s finding separate indictments, the
one for felony and the other for misde-
meanor, founded on the same transac-
tion. Rex v. Doran, 1 Leach, 4th ed.
538, In one such case Vaughan, B
said ; “The party should consider his

case, and know what he ought to in-
dict for, and not prefer two bills at
once, and take the chance of getting a
conviction upon one of them. I shall
hold him to elect which he will go upon,
and I shall direct an acquittal upon the
other.” Rex. v. Smith, 3 Car. & P.
412. See also People v. Van Horne, 8
Barb. 158. And see The State v. Whit-
more, 5 Pike, 247 ; Rex v. Handley, 5
Car. & P. 565.

[143]
§ 199 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

on one transaction, and, without objection being taken, the
trial was proceeded in, and the jury returned a verdict of not
guilty on the former count, and guilty on the latter, it was
held that the defendant could not take advantage of the ir-
regularity by motion in arrest of judgment.! In another case,
the indictment was for the felony of stabbing, in several
counts ; to this there was added a count for the misdemeanor
of a common assault. The trial had considerably advanced
before the irregularity was discovered, and then the judge al-
lowed the cause to proceed, and submitted it to the jury with-
out noticing the count for the common assault. Thereupon
the jury returned a verdict of guilty, which was entered on
one of the counts for felony ; and the English judges held the
conviction to be right.2. Where, in another case, there was
added to a count for robbery, which was felony, a count for
an assault with the intent to rob, and the trial went on
without objection, “at the conclusion of the case,” says
the report, ‘ Park, J. called on the counsel for the prosecu-
tion to elect upon which count the question should be left to
the jury.” ® So, doubtless, the prosecuting officer can cure
the defect by entering a nol. pros. on one of the counts before
the trial is commenced.* But it is plain that, unless the de-
fect is cured in some such way, the court, on seasonable ap-
plication being made, will either quash the indictment or
compel the prosecutor to elect on which count he will pro-
ceed.

§ 199. But in States where there can bea conviction for
misdemeanor on an indictment for felony, counts for felony
and misdemeanor may under some circumstances be properly
joined. Thus in Massachusetts it is held, that a count for a
common assault may be joined in the same indictment with a
count for a felonious assault, if both counts relate to the same
transaction ; and the defendant may be acquitted of the great-
er, and convicted of the less offence. “It is true,” said

1 United States v. Stetson, 3 Woodb. 8 Rex v. Gough, supra.

& M. 164. 4 Crim. Law, I. § 850, 856, 858,
2 Reg. v Jones, 8 Car. & P. 776,2 862.
Moody, 94.

[144]
CHAP. XV.] _ DUPLICITY, JOINDER, ELECTION. § 201

Dewey, J., “that, generally speaking, offences differing in
their natures, one being a felony and the other a misdemean-
or, ought not to be joined. But the practice in this Com-
monwealth has fully sustained a joinder of such counts where
they have been a kindred line of offences. It is allowed al-
ways where several counts are introduced for the purpose of
meeting the evidence as it may transpire on the trial, all the
counts being substantially for the same offence.”! And in
New Jersey, to a count in an indictment charging a rape,
which is a felony, may be united a count charging an assault
with intent to commit a rape, which is a misdemeanor.?

§ 200. Another distinction growing out of the division of
crime into felony and misdemeanor is, that, on the one hand,
as a general proposition, according to the doctrine prevailing
in England and the greater part of our States, there can be
no such joinder of felonies as to include separate transactions
in one indictment; while, on the other hand, according to the
doctrine everywhere held, there may be such joinder of mis-
demeanors under some circumstances.? Let us look at these
two propositions, with their limitations, a little in detail.

§ 201. First. There can be only one transaction embraced
in a single indictment for felony. Yet because the separate
counts are always upon their face for separate offences, it fol-
lows that, where an indictment violates this rule, the objection
cannot be taken in every form, without discrimination, known
to the criminal law procedure. So far the way is plain. But
the authorities are neither plain nor quite uniform as to how
far each of the several methods of objection is available where
the indictment violates this rule.*

1 Commonwealth v. McLaughlin, 12
Cush. 612, 614.

2 The State v. Sutton, 4 Gill, 494.
And see Burk v. The State, 2 Har. &
J. 426; The State v. Posey, 7 Rich,
484.

8 Young v. Rex, 3 T. R. 98 ; Com-

-Imonwealth v. Manson, 2 Ashm. 31 ;
Kane v. People, 8 Wend, 203.

4 1. In the criminal law, the same as

in the other departments, there are often

VOL. I. 13

done without objection, things which
would not be allowed if the objection
were taken. Thus, in Tennessee, there
was a motion in arrest of judgment,
and it appeared that the indictment was
in three counts ; the one, charging a
negro with having had carnal knowl-
edge of a white female child, under ten
years of age, which was a capital of-
fence ; another, charging the commis-
sion of a rape on a white female ; while

[145]
§ 202

PLEADING AS RESPECTS THE INDICTMENT.

[Book IL.

§ 202. What is stated in the last section is the doctrine
which prevails in England and in this country generally.

the third was for an assault with the in-
tent to commit a rape on a white fe-
male ; and the punishment of neither
of the latter two offences was capital.
Therefore the court held, on this mo-
tion, that the indictment was fatally de-
fective, and arrested the judgment. The
State v. Cherry, 1 Swan, Tenn. 160.
See also, to the like effect, The State v.
Fant, 2 Brev. 487. But it may be ques-
tionable whether even in such a case as
this, if the attention of the court had
been directed to the point, it would have
suffered the objection to be taken in
this form, or in any form after ver-
dict. At all events the law is plain,
that, in ordinary cases of misjoinder of
counts, the defendant can avail himself
of the defect only on motion to quash
(or perhaps special demurrer), or on mo-
tion to compel the prosecutor to elect
on which counts to proceed. Thus, on

a general demurrer, this objection of ;

misjoinder was held not to be maintain-
able ; Lord Ellenborough, C. J. observ-
ing: “ This would have been a good
ground of application to the discretion
of ‘the conrt to quash the indictment for
the inconvenience which may arise at
the trial from joining different counts
against different offenders; but, where
to the offences so charged in dif-
ferent counts there may be the same
plea and the same judgment, there is
no authority for saying that such join-
der in one indictment is bad in point of
law: nor is there any legal incongruity
on the face of it, to warrant usin giving
judgment for the defendants on demur-
rer.” Rex. v. Kingston, 8 East, 41, 46.
To all indictments, there may be the
same plea of not guilty, or of guilty; but
the judgment in all isnot thesame. Is,
then, an indictment bad in law, as the
language of this learned judge would
seem to imply, when the judgments on
the counts are not the same? Arch-
bold says: “ There is no objection to

[146]

stating the same offence, in different
ways, in as many different counts of the
indictment as you may think necessary,
even though the judgment on the sev-
eral counts be different, — Rex v. Gal-
loway, 1 Moody, 234; see Rex v. Pow-
ell, 2 B. & Ad. 75, — provided all the
counts be for felonies, or all for misde-
meanors.” Archb. New Crim. Proced.
93. In the case of Rex v. Galloway,
thus referred to by Archbold, the ques-
tion was raised at the proper stage of
the cause; and it was even then unani-
mously held by the judges, on a case
reserved, not to be an objection to the
indictment in point of law, that the
punishment on one count was trans-
portation for life, and on the other
transportation for fourteen years; but
the judges were divided in opinion,
whether, after the evidence was in, the
prosecutor should have been put to his
election on which count to ask for a
verdict. In the nisi prius case of Reg.
v. Strange, 8 Car. & P. 172, tried be-
fore Lord Denman, C. J. and Park, J.
there were three counts, the judgment
on the first of which was by statute
capital, and on the other two it was
transportation, and they would not even
compel the prosecutor to elect on which
of them to ask for a conviction. Said
Lord Denman, C. J.: ‘‘ These are all
felonies in their nature, and of course
may be joined in the same indictment.
The jury must say to which count the
evidence applies.” p. 173. We shall
see some American authority on this
matter by and by. But bearing this
point in mind, let us look at the expla-
nation given by another learned Eng-
lish judge. A case coming before the
Court of King’s Bench on writ of error,
the objection of misjoinder of counts
was raised, and Buller, J. replied to it
as follows ; “ That is founded on a
point which once embarrassed me a
great deal, Some years have elapsed
CHAP. XvV.]

DUPLICITY, JOINDER, ELECTION.

§ 202

But in Massachusetts the same rule prevails in felonies as in

misdemeanors; whence there

since I looked into it, but I believe I can
state pretty accurately how it stands.
In misdemeanors, the case in Burrow
shows that it is no objection to an
indictment that it contains several
charges. The case of felonies admits
of a different consideration ; but, even
in such cases, it is no objection in this
stage of the prosecution. On the face
of an indictment, every count imports
to be for a different offence, and is
charged as at different times. And it
does not appear on the record whether
the offences are or are not distinct. But
if it appear, before the defendant has
pleaded or the jury are charged, that he
is to be tried for separate offences, it
has been the practice of the judges to
quash the indictment, lest it should
eonfound the prisoner in his defence, or
prejudice him in his challenge of the
jury ; for he might object to a jury-
man’s trying one of the offences, though
he might have no reason to do so in
the other. But these are only matters
of prudence and discretion. If the
judge who tries the prisoner does not
discover it in time, I think he may put
the prosecutor to make his election on
which charge he will proceed. I did it
at the Jast sessions at the Old Bailey ;
and hope, that, in exercising that dis-
cretion, I did not infringe on any rule
of law or justice. But if the case has
gone to the length of a verdict, it is no
objection in arrest of judgment. If it
were, it would overturn every indict-
Ment which contains several counts,”
Young v. Rex, 3 T. R. 98, 105, 106,
1 Leach, 4th ed. 505.

2. It is submitted, that, since the law
confessedly permits several offences to
be set forth in the indictment in differ-
ent counts, the question whether any
two particular offences can properly be
joined is in all cases one of mere form,
pertaining to the convenience either of
the prisoner or of the court ; and, if

may here be, within limits ap-

the matter has gone to a verdict with-
out the inconvenience being felt, and the
objection being taken by the prisoner,
the prosecutor, or the judge, the result
shows all this matter of form to have
been satisfactory and convenient to all
parties, and neither sound legal princi-
ple nor abstract justice requires the un-
doing of what has thus been done. If,
however, the record shows an error in
matter of legal substance, then the mo-
tion in arrest of judgment or the writ of
error should be permitted to prevail.
Thus, where six ‘persons were indicted
jointly for perjury, and four of them
were convicted, a motion in arrest of
judgment was allowed ; because it was
deemed that in matter of law perjury
is not one of the offences which can be
committed jointly. Rex v. Philips, 2
Stra. 921.

3. As strengthening more or less
these views, see the following Ameri-
can cases: The State v. Fowler, 8
Fost. N. H. 184; Kane v. People, 8
Wend. 203 ; Cash v. The State, 10
Humph. 111; Storrs v. The State, 3
Misso. 9; The State v. Nelson, 29
Maine, 329; Mayo v. The State, 30
Ala, 32 ; Dowdy v. Commonwealth, 9
Grat. 727; The State v. Palmer, 4
Misso. 453 ; Stone v. The State, Spen-
cer, 404 ; Walters v. The State, 5 Iowa,
507. If an indictment charges offences
to which the law affixes distinct punish-
ments, it may be bad for misjoinder ;
but, after verdict and judgment, the
judgment will not be arrested or re-
versed for that cause. The State v.
Coleman, 5 Port. 32. It is irregular to
join in the same indictment counts for
distinct felonies of different degrees.
“Tf,” said the judge, “ the objection
had been made before plea pleaded, it
might have been good ground for
quashing the indictment; and, even
after the case had been put to the jury,
the court, upon the application of the

[147]
§ 202

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK 11.

parently not quite defined, an indictment embracing in suc-
cessive counts separate felonies committed in distinct transac-

prisoner, might have compelled the
prosecuting attorney to his election, as
to which charge he would proceed on.”
But, where this was not done, it is too
late to raise the objection after a gen-
eral verdict of guilty. Wash »v. The
State, 14 Sm. & M. 120. Where the
disabling of a person by shooting is a
maiming under the statute, the offences
of maiming and of shooting at a per-
son with intent to kill may be joined in
the same indictment, although the pun-
ishment of the two offences is different.
If such joinder is objectionable, the ob-
jection is addressed to the discretion of
the court, and must be made before con-
viction. Baker v. The State, 4 Pike,
56; Johnson v. The State, 29 Ala. 62.
Though the counts of an indictment
are inconsistent with one another, yet a
general verdict on them may be sus-
tained. Said Johnson, J.: “ It was
moved, that, as there were two counts
in the indictment, the one charging the
offences as committed on the high seas,
the other in a haven, basin, or bay, a
general verdict of guilty could not be
sustained on account of repugnancy
and inconsistency, as both facts could
not be true. But on this it is only neces-
sary to remark, that each count is a dis-
tinct, substantive charge. Internal re-
pugnancy in any one is a good excep-
tion ; but non constat as to the whole,
taken severally, but each may be for
a distinct offence.” United States o
Pirates, 5 Wheat. 184, 201. After a
general verdict of guilty, it is no ob-
jection to an indictment, on motion in
arrest, that offences of different grades,
and requiring different punishments,
are charged in the different counts. If
any one or more of the counts are suf-
ficient, the court will render judgment
upon such counts ; and, if all the counts
are sufficient, judgment will be render-
ed upon the count charging the highest
offence. The State v. Hooker, 17 Vt.

[148]

658, 669. But in South Carolina, a new
trial was granted the defendant on a
general verdict of guilty, where the in-
dictment contained two distinct charges
of different offences punishable differ-
ently ; the court observing, — “ A gen-
eral verdict of guilty does not show of
which offence he was guilty.” The State
v. Montague, 2 McCord, 257, 258. See
also The State v. Anderson, 1 Strob. 455;
The State v. Priester, 1Cheves, 103.

4. Some of the cases in which join-
der of offences in felony seems to be
quite permissible,— where also, it
should be understood, the counts really
relate to one transaction, — are the fol-
lowing: A count charging a larceny,
with.a count for receiving stolen goods.
Rex v. Flower, 3:Car. & P. 413 ; May-
nard vo. The State, 14 Ind. 427; The
State v. Stimpson, 45 Maine, 608 ;
Hampton v. The State, 8 Humph. 69 ;
Commonwealth v. Adams, 7 Gray, 43.
But in England the judges ‘have recom-
mended to the clerks of the assize who
draw the indictments, that neither these
offences be joined nor any others (if I
correctly apprehend the matter) for
which the law provides different punish--
ments. Rex v. Madden, 1 Moody, 277;
Rex v. Galloway, 1 Moody, 234, 236.
A count for embezzlement with a count
for larceny. Rex v. Johnson, 3 M. &S.:
539 ; Coats v. People, 4 Parker C. C.
662; The State v. Porter, 26 Misso.
201. For forgery, with a count for ut-
tering the forged instrument as true,
though the degree of punishment dif-
fers. Hoskins v. The State, 11 Ga. 92.
Being accessory before the fact, with
the same after the fact. Rex v. Black-
son, 8 Car. & P. 43. See also for
other cases, Stephen v. The State, 11
Ga. 225; United States v. Peterson, 1
Woodb. & M. 305 ; Joy v, The State,
14 Ind. 139. Possibly one or two of the.
instancos here cited may not be felony in
the place where the decision occurred.
CHAP. XV. ] DUPLICITY, JOINDER, ELECTION. § 208

tions, and one general verdict and judgment rendered on the
whole. Said Dewey, J., in explanation of this matter: “The
long established practice in this Commonwealth has been to
present distinct larcenies in the same indictment, and also
distinct offences of receiving stolen goods in the same indict-
ment, in different counts. It has been considered to be no
objection to this practice that the charges were felonies, pro-
vided that they were offences of the same general nature, re-
quiring the same mode of trial, and having the punishment
annexed to them of a like nature..... It is always open to
the presiding judge to order a separate trial on each distinct
charge, when there is any reason for supposing that the de-
fendant will be perplexed in his defence, or unnecessarily
embarrassed by being put on trial for two distinct offences.
We see no good reason for holding that it is illegal to present
in the same indictment felonious offences of a similar charac-
ter and having a2 like punishment. In misdemeanors, it is
admitted that this may be done, and the distinction set up as
to felonies as a class is by no means a satisfactory distinction,
or based on any sound principle ; as many petty offences, as
for example larcenies of the most trifling amount, have al-
ways heretofore, and until the very recent Stat. of 1852, c.
4, been denominated felonies.” 1 The result of this is, that,
if in such a case there is a general verdict of guilty, and a
sentence of the prisoner to a longer period of imprisonment
than the law would allow for the offence set out in any one
count, yet not longer than the sum of all the periods allowa-
ble for the offences added together, the judgment is not erro-
neous.? This is not the place to inquire whether this last
point should be held the same way in other States.?

§ 208. The general Massachusetts doctrine, stated in the
last section, seems to be held also in Tennessee. Thus it was
there adjudged not to be error in the lower court to refuse
to quash an indictment which charged, in the first count,
that the defendant stole a slave named A, the property of B ;

1 Commonwealth v. Hills, 10 Cush. 2 Carlton v. Commonwealth, 5 Met.
530, 533, 534. See Sarah v. The State, 532. /
28 Missis, 267. 8 And see post, § 208.
13* [149]
§ 204 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

in the second, that he stole a slave named A, the property of
C; in the third, that he stole a gray mare, the property of
D; and, in the fourth, that he stole a bay horse, the property
of E.1 Perhaps this Massachusetts doctrine may be received
also in some of the other States.

§ 204. Secondly. Two or more misdemeanors, growing
out of separate and distinct transactions, may, according to
the doctrine which appears to prevail everywhere, be joined
in the same indictment, when embraced in different counts.”
It is not easy to say precisely what is the limit of this doc-
trine ; except, that the judge will exercise at least his discre-
tion over the matter to the extent of protecting the prisoner
from being prejudiced in his rights of defence. In one case,
Lord Ellenborough, C. J. said: “ It is the daily usage to re-
ceive evidence of several libels, and of several assaults upon
the same indictment ; and here I see not the slightest objec-
tion to evidence of various acts of fraud committed by the

1 Cash v. The State, 10 Humph. 111.
The reader, however, will gbserve, that
in this case the learned judge who de-
livered the opinion seems not to have
had in his mind all the distinctions
which have sometimes been taken. And
while it renders it probable that the
Massachusetts practice will be allowed
in Tennessee, it seems to me not quite
to settle the question. He said: ‘The
authorities referred to certainly estab-
lish the principle, that a defendant
ought not to be charged with differ-
ent felonies in different counts of the
same indictment. It is calculated to con-
found the prisoner in his defence, and
to deprive him of the full benefit of the
challenges allowed him by law ; and the
humanity of the law will therefore in-
duce the court, in most cases of this
kind, to quash the indictment, or put
the prosecutor to his election on which
count he will proceed. But it may
sometimes be proper to unite in the
same indictment different offences, when
they are of the same character, differ-
ing only in degree,’ as in the case of

[150]

the People ». Rynders, 12 Wend. 425,
where it was held, that a charge for.
forging a check, and also for publishing
it as true, knowing it to be false, were
properly united. There is therefore, in
point of law, no objection to the inser-
tion of several distinct felonies of the
same degree, though committed at dif-
ferent times, in the same indictment,,
against the same offender, and it is no
ground either of demurrer or arrest of
judgment.” p. 113. Under many cir-
cumstances it is at least doubtful wheth-
er a higher court can revise a decision
of a lower, on a motion to quash. And
see post, § 205, 206, 446.
2 Ante, § 200, 201, notes, 202; Kane
vv. People, 8 Wend. 203 ; Common-
wealth ». McChord, 2 Dana, 242; Stone
v. The State, Spencer, 404; People ».
Castello, 1 Denio, 83; People v. Gates,
13 Wend. 311; The State v. Kibby, 7
Misso. 317 ; United States v. O’Calla-
han, 6 McLean, 596 ; Orr v. The State,
18 Ark. 540; Covy v. The State, 4 Port.
186,
CHAP. XV.]

DUPLICITY, JOINDER, ELECTION. § 205

defendant in his office of commissary-general, though ranged
under different counts as distinct and substantive misdemean-
ors.” + Where a statute makes it a misdemeanor to sell in-
toxicating liquor without a license, and imposes a fine for each
sale, several counts for distinct sales may be joined in one in-
dictment, and the accumulated penalty imposed.2_ Of course,
when the offences relate to the same transaction the joinder
may be made the same as in felony.

III.

§ 205. The practice of compelling the prosecutor to elect
on what count of an indictment, or for what transaction ex-
hibited in the proof, he will ask the jury to render their ver-
dict against the defendant, prevails under different modifica-
tions in England and in our several States, in trials both for
felony and for misdemeanor. But it should be observed, that
this matter pertains strictly to what is sometimes called the
practice at the trial, in distinction from the absolute law, and
to that part of the practice which rests in the discretion of
the presiding judge.* Therefore, as a general proposition, a
court authorized to revise the decisions of an inferior one,
cannot interfere with the discretion of the latter in allowing
or overruling a motion to put the prosecutor to his election.®
But this proposition is not good in all our States; because,
in some of them, matters of judicial discretion are subject to
judicial review. Possibly, also, there may be particular cir-
cumstances in which the decision on such a question would be
deemed everywhere to be open to the revision of the higher
tribunal.®

Compelling the Prosecutor to Elect.

1 Rex v. Jones, 2 Camp. 131, 132.

2 Barnes v. The State, 19 Vt. 398;
Commonwealth ». Tuttle, 12 Cush. 505 ;
Smith ». Adrian, 1 Mich. 495; The
State v. Croteau, 23 Vt. 14.

3 And see several sections ante and
post, with their appended notes. Counts
for misdemeanors at common law and
under statutes may be united. The

State z. Thompson, 2 Strob. 12; The.

State v. Williams, 2 McCord, 301.

4 Ante, § 6-9.

5 People v. Baker, 3 Hill, N. Y. 159 ;
The State v. Woodward, 21 Misso. 265,
266 ; The State v. Leonard, 22 Misso.
449 ; Bailey v. The State, 4 Ohio State,
440 ; Johnson v. The State, 29 Ala. 62 ;
Weinzorpflin v. The State, 7 Blackf.
186.

6 Consult, as to the matter of both
these periods of the text, Rex v. Gallo-
way, I Moody, 234, 236; Cochran v,

[151]
PLEADING AS RESPECTS THE INDICTMENT.

§ 208 [BOOK 11.

§ 206. One mode of enforcing what is equivalent to an
election is to quash the indictment before trial, where it ap-
pears to the judge that offences have been unduly joined, and
that the prisoner will be thereby prejudiced on his trial It
is probable that this motion to quash, like the motion to com-
pel an election, is to be regarded as addressed purely to the
discretion of the court, not subject, under all circumstances,
to revisal by a higher tribunal.2 And it seems a little anom-
alous, that, since in some of the States the court will gener-
ally quash an indictment only for defects which appear upon
the face of it, this power should be exercised in respect to
matter which in its nature can seldom thus appear.

§ 207. Returning to the compelling of what may be termed
election proper, we find various sorts of election, and various
cases, to be distinguished from one another. In the first
place, the prosecuting officer may always nol. pros. any count
of the indictment before the trial commences, or after it is
over, though he cannot do this while it is in progress. He
may, therefore, in analogy to this, elect to proceed only on
certain counts of the indictment.‘

§ 208. Secondly. There is a difference on this question, be-
tween felony and misdemeanor.® The general rule in felony
is, that the court will permit the prosecutor to give evidence
of only one felonious transaction ;* but, when it appears on
the opening of the case, and during the trial, that there is no
more than one criminal transaction involved, and the joinder,
of the different counts is meant only to meet the various as-
pects in which the evidence may present itself, the court will
not restrict the prosecuting officer to particular counts, and

The State, 30 Ala. 542; and various
cases, as the reader may select, cited in
subsequent sections of ‘this chapter.

1 Ante, § 181, 201, note; Mayo »v.
The State, 830 Ala. 32; The State v,
Smith, 8 Blackf. 489; Engleman 2.
The State, 2 Ind. 91; Weinzorpfiin >.
The State, 8 Blackf. 186°; Sarah v. The
State, 28 Missis. 267, —

[152]

2 Ante, § 203 and note ; Cash v. The
State, 10 Humph. 111, 114.

3 Crim. Law, I. § 850, 856, 858, 862.

* The State v. Jones, 5 Ala. 666;
Burk v. The State, 2 Har. & J. 426.

5 The State v. Kibby, 7 Misso. 317.

6 Of course, this doctrine does not
strictly apply in Massachusetts, and
perhaps some other States, as explain-
ed ante, § 202, 203.
CHAP. XV.]

DUPLICITY, JOINDER, ELECTION.

§ 208

will suffer a general verdict to be taken on the whole Yet
the doctrine in reference to the verdict may not be uniform

1 In an Indiana case it was held,
that the mere circumstance of the in-
dictment’s containing several counts
for felony is not sufficient to put the
prosecutor to his election; Blackford,
J. observing : ‘‘ Where there are two or
more counts for apparently distinct fel-
onies, as there legally may be in many
instances, it cannot be a matter of
course, as the plaintiff in error contends
it is, for the defendant to compel the
prosecutor to elect on which single
count he will go to trial. If that were
the case, it would at once render nuga-
tory the established and legal practice
of inserting several counts in an in-
dictment for felony. There could be no
possible use in inserting several counts,
ifthe defendant could, in effect, have
them all but one struck out of the in-
dictment. The truth is, the different
counts in an indictment for felony are
usually drawn with a view to one and
the same transaction; and the object
of inserting several counts is, that some
one of them may be found, on the trial,
to be in accordance with the evidence.
This is a legitimate object, and the
court will never in such a case, inter-
fere with the proceeding. It sometimes
happens, no doubt, that the prosecu-
tor’s object in inserting several counts
is really to prosecute the defendant for
separate felonies by means of one in-
dictment. This he has no right to do ;
and, when it is ascertained before the
trial, that he intends to do it, the court
will defeat him.” McGregg v. The
State, 4 Blackf. 101,103. To the same
effect is a case in Alabama, in which
Walker, J. said : “ Where two distinct
felonies are charged in different counts,
it is not a matter of legal right pertain-
ing to the accused, that the State should
be compelled to elect for which one of
the offences it will prosecute ; nor will
the court compel such election, where

the two counts are joined, in good faith,
for the purpose of meeting a single of-
fence. It is a practice sanctioned by
common custom, and by the law, to
charge a felony in different ways, in
different counts of the indictment, so as
to provide for the different phases which
the evidence may present upon the trial ;
and, where such is the bona fide purpose
of the joinder of counts, the court never
exercises its power of quashing the
indictment or compelling an election.
Baker v. The State, 4 Pike, 56 ; Kane
v. People, 8 Wend. 203 ; Roscoe Crim.
Ey. 231, 232; Archb. Crim. Pl. 95,
note 1 ; Barb. Crim. Law, 340 ; People
v. Rynders, 12 Wend. 425 ; The State
v. Nelson, 8 N. H. 163; The State v.
Coleman, 5 Port. 32. The principle
to be extracted from these authorities
is, that the court should always inter-
pose, either by quashing the instrument,
or by compelling an election, where an
attempt is made, as manifested by ei-
ther the indictment or the evidence, to
convict the accused of two or more of-
fences growing out of distinct and sep-
arate transactions ; but should never
interpose, in either mode, where the
joinder is simply designed and calcu-
lated to adapt the pleading to the differ-
ent aspects in which the evidence on
the trial may present a single transac-
tion. It is not in any way shown that
the purpose or effect of the joinder in
this case was to require the accused to
answer two distinct offences; and the
court, therefore, properly refused to
compel an election by the State.” Mayo
v. The State, 30 Ala. 32, 33, 34. To
the like effect, see Storrs v. The State,
3 Misso. 9 ; United States v. Dickinson,
2 McLean, 325; Rex v. Young, Peake
Add. Cas. 228; The State v. Canter-
bury, 8 Fost. N. H. 195 ; The State 2.
Flye, 26 Maine, 312; Engleman v. The
State, 2 Ind. 91; The State v. Fowler, 8
[153]
§ 210 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

‘

in all localities; and, in Maryland, where a general verdict
is rendered, it is the practice to pass judgment only on the
count which charges the highest grade of the offence,}—a
practice which probably does not prevail in all the other
States.2. This is matter for later pages of the present volume.

§ 209. Thirdly. On the other hand, in cases of misde-
meanor, the court will in many instances permit the prosecu-
tor to introduce evidence of distinct misdemeanors, set out in
distinct counts, and growing out of disconnected transactions ;
a general verdict, which will be followed by a general judg-
ment, to be ordinarily taken on the whole. Some of the au-
thorities seem to go even to the point, that, in these cases,
there is no power in the court to compel an election ;* but
there is little doubt, that, where there are so many counts as
to embarrass the defence,* or where they are of a nature to be
not properly joined, the election may be compelled. A Mis-
souri judge observed: “‘In the case of offences inferior to
felony, the practice of calling on the prosecutor to elect on
which charge he will proceed, does not exist, and the prose-
cutor may give evidence of several libels, assaults, &c., upon
the same indictment, whether they be on the same or on dif-
ferent persons. . .. . The rule is, that offences of a different
character and degree, upon which the judgments must neces-
sarily be different, are not to be joined.”

§ 210. Fourthly. There is

Fost. N. H. 184; The State v. Davis,
29 Misso. 391; Bailey v. The State, 4
Ohio State, 440; People v. Austin, 1
Parker C. C. 154. Suppose the counts
are for embezzlement and larceny, still,
if they are for one criminal act, the
court will not, in Missouri, compel the
prosecutor to elect. The State v. Por-
ter, 26 Misso. 201. So, in Tennessee,
where the counts are for larceny and
receiving stolen goods. Hampton v.
The State, 8 [lumph. 69. Also, in
Virginia. Dowdy v. Commonwealth, 9
Grat. 727. In England, the election
has been required in such a case. Rex.
v. Flower, 3 Car. & P. 413,

[154]

a distinction between electing

1 Manly v. The State, 7 Md. 135.
And see Woodford v. The State, 1
Ohio State, 427; Hudson v. The State,
1 Blackf. 317 ; The State v. Phinney,
42 Maine, 384.

2 Ante, § 202.

3 Ante, § 201, note, 204 ; Common-
wealth v. Manson, 2 Ashm. 31; The
State v. March, 1 Jones, N. C. 526;
The State v. Kibby, 7 Misso. 317 ; Peo-
ple v. Costello, 1 Denio, 83; Rex v.
Jones, 2 Camp. 131.

* The State v. Nelson, 29 Maine, 829.

° Storrs v. The State, 3 Misso. 9,
opinion by Wash, J.
CHAP. XV.] DUPLICITY, JOINDER, ELECTION. § 211

on what count or counts to proceed, and electing to what
transaction or transactions the evidence shall be restricted.
Said Tindal, C. J.: “If the prosecutor, in any charge of
felony, should offer evidence tending to prove two distinct
charges of felony, he would be stopped immediately by the
presiding judge, and directed to make his election upon which
single charge of felony he intended to proceed.” ! And this
doctrine does not depend upon whether there are no more
counts than one in the indictment; for, as we have seen,? in
felonies but a single transaction can be shown, however many
counts the indictment may contain. Suppose, then, a pris-
oner is indicted for burglary, and for stealing the goods in
the house broken into, and there are two counts: if now the
prosecutor attempts to prove the burglary on a particular day
and fails, he cannot thereupon turn round and offer proof of
the larceny on another day. But where several felonies are
so mixed that they cannot well be separated, evidence of the
whole may be given.t’ And where an indictment for arson
contained five counts, each count naming a different owner
of the house burned, from the rest, and it was opened for the
prosecution that the five houses were in a row and all burned
by the fire which the prisoner set to one of them, Erskine, J.
declined to compel the prosecutor to elect immediately for
the burning of which house he would proceed. “ As it is all
one transaction,” he said, “ we must hear the evidence; and
I do not see how, in the present stage of the proceedings, I
can call on the prosecutor to elect. I shall take care, that,
as the case proceeds, the prisoner is not tried for more than
one felony.”’®

§ 211. Fifthly. Where there is a single count in an indict-
ment for a misdemeanor, as well as in an indictment for fel-
ony whatever the number of counts, the court will restrict
the prosecutor, by so compelling him to elect as shall prevent
his giving evidence of more than the one transaction. And

1 O’Connell v. Reg. 11 CL & F. 155, 4 Reg. v. Hinley, 2 Moody & R. 524,
241. ; 5 Reg. v. Trueman, 8 Car. & P. 727.

2 Ante, § 208. See also Reg. v. Bleasdale, 2 Car. & K.

8 Rex vy. Vandercomb, 2 Leach, 4th 765.

d. 708, 2 East. P. C. 519.
° = [155]
§ 211 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

where in misdemeanor there are several counts, the evidence
will be limited in a corresponding way, regard being had to
the number and nature of the counts. This is the general
doctrine ; but, in the methods of applying it, and even some-
what in the form of the doctrine itself, there are differences
of judicial opinion and practice. It is not easy to distinguish
the States from one another on this point; and we shall do
best to consider, in a note, what has been done and what re-
fused.1. The reader should be careful not to confound this

1 1. Two persons, being indicted in a
particular county for horse-stealing,
were shown by the evidence to be in
joint possession of two horses in that
county ; but it appeared also, that the
two horses were originally stolen by the
prisoners at different times and places
in an adjoining county. Thereupon it
was held, that, as each original larceny
was a separate felony, the prisoner's
counsel must elect on which he would
proceed. Said Littledale, J. to him:
“If you could confine your evidence
entirely to a single felony in this coun-
ty, you need not elect ; but this you
cannot do; for you must prove that the
horses were originally stolen in another
county. The possession of stolen prop-
erty soon after a robbery is not in itself
a felony, though it raises a presumption
that the possessor is the thief; it refers to
the original taking, with all its circum-
stances. I think, therefore, that you
must in this instance make your elec-
tion.” Rex v. Smith, Ry. & M.N. P.
295. Where, on an indictment for em-
bezzlement, containing a single count
charging a particular sum to have been
embezzled on a day mentioned, it ap-
peared that money which might have
been embezzled was received on differ-
ent days, the prosecutor was ordered to
select some one transaction on one day,
and rely upon it. Rex v. Williams, 6
Car. & P. 626. Two persons being
jointly indicted for obstructing a high-
way, and no joint act appearing in the
proofs, the prosecutor, on closing his

[156]

evidence, was directed to elect against
which of the prisoners he would ask
for a verdict. Rex v. Lynn, 1 Car. &
P. 527. So where two persons were
jointly indicted for a conspiracy, and
for a libel, and there was evidence
of the conspiracy against both, but
against one there was no evidence of
the libel, the judges put the prosecutor
to elect, before the defence was entered
upon, on which charge he would ask
for a verdict. Reg. v. Murphy, 8 Car.
& P. 297. And the like doctrine was
held in a New York case. People 2.
Costello, 1 Denio, 83. If it is probable
that all the goods stolen were not stolen
at one time, but it is still possible that
they might have been so, the judge will
not put the prosecutor to elect to go
upon the stealing of some particular
articles. Rex v. Dunn, Car. Crim.
Law, 3d ed. 82. ;
2. The reader perceives, that, in some
of the foregoing cases, the election was
required to be made only after the evi-
dence in behalf of the prosecution was
fully introduced. The time for requir-
ing the election will be further consid-
ered in the next section of our text;
but,in many of the cases, the consider-
ation of it is blended with that of the
general question of requiring the elec-
tion to be made at all. Ina Michigan
case, where the charge against the pris-
oner was in asingle count, and for in-
cest, the doctrine was laid down, that,
before evidence is produced, the prose-
cuting officer must select some one in-
CHAP. XV.]

DUPLICITY, JOINDER, ELECTION.

§ 211

doctrine with the mere rule of evidence, to be considered in
another place, that, as a general proposition, one crime can-

stance, and proceed upon it alone. Said
Christiancy, J.: ‘ The charge in the in-
formation was for a single act of incest-
uous intercourse, committed at the city
of Detroit, on the 24th of February,
1858 ; but the time stated was not ma-
terial, and, under the well settled rule
in criminal cases, the prosecution, before
the evidence was introduced, might have
selected any one act of such criminal
intercourse which occurred within the
jurisdiction of the court, and within
the period of the statute of limitations
applicable to the offence. It was not a
case in which the court could compel
the prosecutor to elect, because the
charge, on the face of the information,
was confined to a single act. It was
not claimed by the prosecution, and
could not legally be claimed, that it
was competent to convict the defendant
of more than one act under this infor-
mation. But the prosecutor having the
right to select among all the acts of the
kind which he could prove to have been
committed between the parties, within
the period alluded to, and within the
jurisdiction, —any one of those acts,
before evidence had been introduced,
was as properly the act charged in the
information as any other. In other
words, until evidence of some such
act had been given, the charge in the
information was floating and contin-
gent, aimed as much at one as another,
and at no one act in particular ; and it
remained for the evidence to point the
charge to the particular act intended.
Bat when evidence had been introduced
tending directly to the proof of one
act, and for the purpose of procuring
a conviction upon it, from that moment
that particular act became the act charg-
ed. What had, till then, been float-
ing and contingent, had now become
certain and fixed. The prosecutor had
made his election, and could not elect

VOL, I. 14

again ; nor could he be allowed to prove
any other act of the kind as a substan-
tive offence upon which a conviction
might be had in the cause. The in-
formation could be used as a drag-net
only till the first act had been entangled
in its meshes : every other act must be
allowed to escape this throw of the net ;
and thenceforward the evidence must
be aimed at this act. If others of the
same kind lie in the same range, they
can only be noticed for a secondary
purpose, as they may be connected with
or bear upon this.” People v. Jen-
ness, 5 Mich. 305, 327.

3. The doctrine thus laid down in
Michigan is very plain; and, if it were
received in the same way everywhere
else, much labor would be saved to law-
writers and to students, though it is not
clear that justice would be promoted
by so strict a universal rule. Still it
is not easy to say how far this rule
is departed from elsewhere. In New
York, quite in accordance with the rule,
it was held, that, on the trial of an in-
dictment, containing a single count for
an assault and battery and resisting an
officer in the execution of process, the
prosecution, after proving an assault
and one act of resistance, cannot give
evidence of asimilar offence, committed
at another time. People v. Hopson, t
Denio, 574. Likewise in Indiana, the
Michigan doctrine seems to have been
very nearly if not fully laid down, on
an indictment also for incest. Yet the
point of the case seems rather to have
related to the proof, it being held that
evidence of a second act could not be
received in confirmation of the first.
Said Davison, J.: ‘“ In the investiga-
tion of the case made by the record,
the jury could not rightfully consider
any proof save that which tended to
establish one act of incestuous inter-
course; and one act of such inter-

[157]
§ 212 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

not be shown to have been committed by a prisoner to raise
the presumption of his having committed another crime.
Neither, the reader should also remember, is the doctrine it-
self carried to the extent of overturning the exception to this
rule, that, in some cases, a crime may be shown to aid in the:
proof of another which is under investigation.

§ 212. Sixthly. It should be noticed at what time the
election is to be made. In some instances, the court will
wait till the evidence is all in, and then compel the prosecu-
tor to point out the count on which he asks for a verdict.1_ In
other instances, the election has been required on the very
opening of the cause ; or, in default of it, the prosecutor has
been held to have elected to proceed for the ‘first transaction
which his evidence has tended to prove.? In still other in-
stances, the prosecutor has been allowed to put in all the evi-
dence he wished, tending to prove any number of crimes such
as the indictment charged ; and then, at the end of his case,
but before the prisoner was called upon to produce his de-
fence, to select one transaction, if the indictment was in a
single count, or if it was for a felony ; or as many transactions
as there were counts, if it was for misdemeanor ; relying
alone upon what was thus selected, and not being permitted
to change to meet the case made out by the defendant.’ In

course having been proved, it seems
to follow that any evidence tending to
show that the defendant was subse-
quently guilty of another similar of-
fence. was not only irrelevant, but cal-
culated to produce an improper influ-
ence in the minds of the jury.” Lovell
v. The State, 12 Ind. 18,20. See also
The State v. Bates, 10 Conn.3872. And
see the notes to the next section.

1 Ante, § 201, note; Rex wv. Gallo-
way, 1 Moody, 234.

2 Ante, § 211, note, par. 2, 3. On
an indictment for uttering a forged bill
of exchange, the judge will hear evi-
dence of all the facts which form parts
of one continued transaction relating to
the uttering of the bill, and will not
press the prosecutor to elect what par-

[ 158 J

ticular fact he means to rely upon as
the uttering, till the case for the prose-
cution is closed. Rex. v. Hart, 7 Car.
&P 652. Where two assaults appear,
the prosecuting officer will not be re-
quired to elect on which he shall ask
for a verdict until after the evideuce is
heard. Said Evans, J.: “ The ‘course
pursued in this case, of requiring the
solicitor to elect after the evidence has
been heard, is the usual course pursued
in like cases. Indeed I do not well
perceive how an election can be made,
until it is known that two offences have
been committed.” The State v. Sims,
3 Strob. 137, 189.

3 In Vermont, where the indictment
was in three counts, charging so many
unlicenced sales of intoxicating liquor,
CHAP. XV. ]

DUPLICITY, JOINDER, ELECTION.

§ 212

yet other instances, the judge suffers the prosecutor to go a
little way with his evidence; and then, at what he deems a
proper time, but before the evidence is all put in, requires

the election to be made.

and on the trial the prosecutor had
offered evidence tending to prove such
three distinct sales, the defendant ob-
jected to the introduction of evidence

tending to prove other sales, though

within the description of the indictment.
And the court held, that the objection
could not be maintained. “It was
claimed,” said Bennett, J., “ that the
government had made their election,
for what sales they would proceed, the
moment they had introduced any evi-
dence tending to prove three distinct
sales, and that they could not abandon
them and go for other sales; and, if
permitted so to do by the court below,
that it was error. But we think that
this doctrine of putting the prosecutor
to his election is matter of practice, and
should rest in the sound discretion of
the court below. ... All that a pris-
oner can claim from this doctrine of
election, under a sound exercise of the
discretion of the court, especially in a
ease of this kind, is that it should be
made before the prisoner is called on for
his defence.” The State v. Smith, 22
Vt. 74,76. The learned judge, in de-
livering this opinion, referred to a case
before Alderson, J. in 1834, as follows :
“ Where several charges are included
in an indictment, it is not usual to put
the .prosecutor to his election immedi-
ately upon the case being opened And
semble, that, the reason for putting a
prosecutor to his election being that the
prisoner may not have his attention di-
verted between two charges, the election
ought to be made, not merely before
the case goes to the jury, as it is some-
times laid down, but before the prisoner
is called on for his defence, at the lat-
est.” Rex v. Wigglesworth, 2 Deac.
Crim. Law, Supp. by Hindmarch, 1583.
In another Vermont case of the same

sort, the doctrine was again affirmed.
The State v. Croteau, 23 Vt. 14. And
see ante, § 211, par. 2&3.

1 Although the course mentioned in
the text is frequently pursued in prac-
tice, I seem not to have by me cases
which very well illustrate the practice.
I will mention some which perhaps go
part way. Thus, in Alabama, under
the single count allowable by the code
in an indictment for an unlicensed re-
tailing of liquors, a prosecution can be
had for only one act of sale. It was
therefore held, that the prosecuting of-
ficer might interrogate a witness far
enough to identify the particular sale to
which ‘his testimony would relate, with-
out signifying by this an election on his
part to prosecute for that particular sale.
And where a witness said he had bought
liquor from the prisoner ; and, being
further asked whether he had bought
more than a quart at a time, answered
that he had not; the majority of the
court held the election not to have been
thus far made. The witness added,
that the liquor he had bought was not
drunk on the seller’s premises. And
it was held, that this was not respon-
sive, and therefore did not make an elec-
tion for the State, as a question asking
for such details would have done. The
following are the views presented by
the majority of the court: “ It is diffi-
cult to lay down a clear rule, which
will enable the circuit courts to deter-
mine, in all cases, when the prosecutor
has made his election of the particular
act or offence for which he will proceed
in w given case. Some latitude must
be allowed to that officer while conduct-
ing the preliminary examination, that
he may ascertain the particular act or
transaction to which the witness refers,
To require him to elect, before he has

[159]
§ 218 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

§ 213. In conclusion, we find the doctrines connected with
the subject of election, to stand less clearly and satisfactorily
in the books than we should wish. But the following sum-
mary and expansion of views will place the subject in some-
thing like a satisfactory light. This matter is, as we have
seen, one which addresses itself chiefly to the judicial discre-
tion of the individual judge who presides at the trial. There-
fore, in the nature of things, we must be left without very
exact legal rules pertaining to it. Therefore, also, in the na-
ture of things, the discretion must be exercised with refer-
ence to particular and ever-varying facts as they appear on
each separate trial; and what is done in one case can have
but little weight as a precedent to govern another case. Yet

learned enough to enable him to indi-
vidualize the transaction, would, in ma-
ny cases, work a denial of justice,
When, however, he has pursued the in-
quiry until a particular act or transac-
tion has been brought before the minds
of the jury, — has become identified or
individualized, —if he then prosecutes
the inquiry with the view of learning
the details and particulars of that act
or transaction, he must then be held to
have made his election.” Hughes »v.
The State, 35 Ala. 351, 361, 362. See
also Elam v. The State, 26 Ala. 48 ;
wherein it was likewise held, that, if
the State made its election, and there
is a verdict, then there is a new trial,
the same election will be binding on the
State throughout the second trial. In
another Alabama case, which was an
indictment for gaming, the strict Michi-
gan doctrine, as mentioned in a note to
the last section, seems to have been
maintained. The case is as follows:
Although an indictment for gaming, in
the form prescribed by the code, charges
several distinct offences in the alterna-
tive ; yet on the trial the State is con-
fined to evidence of a single offence,
and cannot, after introducing evidence
of any one act, be allowed to adduce
evidence of another act, at a different

[160 ]

time or place. Said Rice, C. J. : “ Un-
der such indictment, the election of the
State is made by introducing evidence
of any act charged in it ; and after in-
troducing evidence of any such act, the
State cannot give evidence of any other
act charged. Elam v. The State, 26
Ala. 48 ; 2 Greenl. Ev. § 86 ; Stane v.
Prichet, 1 Camp. 473; Gillon ». Wilson,
3 T.B. Monr. 216. ‘If the prosecuting
officer deems it for the interest of the
State that evidence as to different of-
fences should be offered, he must frame
the indictment accordingly ; which is
in every case very easily done.’ Elam
v. The State, 26 Ala. 48. But under the
indictment in this case, the court below
erred in admitting the evidence as to
the playing in the bedroom of the de-
fendant’s shop, after the State had in-
troduced evidence as to the playing in
the room over the barber’s shop.”
Cochran v. The State, 30 Ala. 542, 546,
547. In Arkansas, where the State, in
& prosecution for gaming, attempts to
prove a particular instance of gaming
by the defendant, by one witness, and
fails, she may call another witness and
prove another and different instance of
gaming by the defendant, within the
period of limitation. The State v. Czar-
nikow, 20 Ark. 160,
CHAP. XV.] DUPLICITY, JOINDER, ELECTION. § 213

it will be found, that, as a general fact, justice is best promot-
ed where the judge permits the witnesses to go far enough to
identify particular transactions, before compelling the elec-
tion. The chief thing to be avoided, down to the time when
the government rests its case and the defence is called for, is,
to prevent prejudice to the defendant, in the eyes of the jury,
by bringing against him testimony tending to show crimes for
which he is not really indicted, and to which he is not finally to
make answer in the cause, contrary to the well-known general
rule of evidence,! that one offence shall not be shown against
a prisoner as foundation on which they are to build the infer-
ence of his having committed another offence. Yet whatever
may have been done at an earlier stage of the trial, it is plain
that as a general rule there shall be an election required be-
fore the prisoner opens to the jury his defence. Still, though
these views may serve in some degree to reconcile the cases,
and may be helps in future ones, they do not overturn the
result, derivable from the reported decisions, that the doc-
trines on this subject are not quite alike in all the States.

1 Ante, § 211.
14* [161]
§ 216 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

CHAPTER XVI.
JOINDER OF OFFENDERS.

§ 214. Tux subject of the joinder of defendants in criminal
causes is not attended with difficulty to one who has already
made himself acquainted with those principles which deter-
mine the legal relations of criminal parties to one another,
and their several responsibilities before the law, as explained
in the work on the Criminal Law. ‘It seldom happens,”
says Starkie,' “that an indictment is defective for want of
including a sufficient number of parties charged with the of-
fence ; since, technically speaking, torts are several in their
nature, and where several join in the same criminal act, each
is severally amenable to justice for the consequences. And
even where.a duty is thrown upon several, each individual so
bound is responsible for criminal omissions, as well as for
criminal acts.”’?

§ 215. This learned writer next proceeds to point out
some exceptions to the rule, that an indictment will not be
pronounced defective by reason of its including too few de-
fendants. These exceptions rest on the legal nature of-the
particular crimes. “ Thus, an indictment for a conspiracy
cannot charge. the offence against one only, for the very
nature and essence of the crime excludes the idea of its com-
mission by a single individual. But the indictment may al-
lege, that the defendant together with other persons commit-
ted the offence,” —so that, even here, there is no legal
necessity for proceeding jointly against the two or more per-
sons who must combine to commit the crime of conspiracy.

§ 216. ‘“‘ The same observation is applicable to an indict-

11 Stark. Crim, Pl. 2d ed. 31. Rex v. Sudbury, 12 Mod. 262 ; Com.
2 Rex v. Holland, 5 T. R. 607. Dig. Information, D ; 7 Salk. 593.
8 Rex v. Kinnersley, 1 Stra. 193 ;

[162]
CHAP. XVL] JOINDER OF OFFENDERS. § 218

ment for a riot,! where the offence must be alleged to have
been committed by more than one. On the other hand, an in-
dictment may be defective for charging too many ; as, wheré
an indictment for concealing the death of a bastard child, al-
leged the presence of an accomplice,” * — a case, like the rest,
in which the real defect was, that the allegation was in form
such as to show no offence to have been actually committed.®
§ 217. In Tennessee it was provided by statute, that, in “all
indictments for criminal offences, the attorney-general shall
include in the same bill of indictment all persons engaged in
the same offence ; and the costs shall be taxed as one suit,
unless the defendants shall sever in their trials, and, in that
event, the costs shall be taxed as two or more suits, accord-
ing to the nature of the case.” Thereupon the court held,
that the statute was merely directory to the officer mentioned ;
consequently, if one is indicted alone for an act in which sev-
eral participated, the defendant cannot avail himself of the
omission from the indictment of the other parties. We may
well conclude, therefore, that there are no circumstances in
which an indictment is bad simply because it is against a sin-
gle individual; though there are various circumstances in
which, in order to show a crime committed, it must allege
participation in the criminal act by more persons than one.
§ 218. On the other hand, notwithstanding offences are
always several, to the extent that each participant in a crime
is to be separately punished ;5 yet, if more persons than one
engage in the doing of a criminal thing in such a way as to
make each one guilty of the crime, they may be indicted
jointly, not necessarily in several counts, but in a single
count.6 Within this rule, the test to determine whether an
offence may be deemed joint or not, has been stated by an
American judge as follows: it is to consider, “ whether each
offender be guilty in some degree of the same crime, so that
he might be separately convicted even though another was

1 Ib. ; Co. Lit. § 431. 5 Ante, § 214; Crim. Law, I. § 732-
2 Peat’s case, 1 East, P. C. 229. 736.
8 1 Stark. Crim. Pl. 2d ed. 31, 32. 6 The State v. Gay, 10 Misso. 440.

4 The State v. Davis, 2 Sneed, 273.
[163]
§ 221 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

the actual perpetrator. If each may be so convicted, their
guilt is joint ; but otherwise it is several.’”’}

§ 219. “ Thus,” says Starkie, “in the case? of obtaining
money under false pretences, if several defendants act in
concert together, though the pretence be conveyed by words
spoken by one of them, yet they may all be jointly indicted
under the statute. So several persons have been convicted
under the Black Act for a shooting at the prosecutor by one
of them ; and, though they were all jointly charged with the
single act, the indictment was holden to be good by all the
judges.2 So where several join in a conspiracy to give an
untrue verdict, or join in a suit in the admiralty on a con-
tract on land, or commit a joint trespass upon two persons,
or are jointly concerned in the publication of the same
libel.” 4

§ 220. It is common to indict jointly for such offences as
the selling of intoxicating liquor without license,® and the
unlicensed keeping of a ferry,6 as well as for the heavier
crimes. Extortion may be joint ;7 so may assault and bat-
tery. Even husband and wife may be jointly indicted for
the latter offence?

§ 221. The limit to this doctrine is such as is derived from
the legal nature of crimes, and the ordinary rules by which
they must be set out in the indictment. Thus, two defend-
ants cannot be jointly charged with a homicide, by means of
an injury donesby one of them to the deceased on one day,
and another injury done by the other on a different day ;”
because, in matter of law, if the facts are so they are not joint-
ly guilty. And, says Starkie, “if several jointly work at a
trade within the statute of Elizabeth, they cannot be jointly

1 Robertson, C. J. in Commonwealth 7 Reg. v. Atkinson, 2 Ld. Raym.
v. McChord, 2 Dana, 242, 243. 1248, 1 Salk. 382, 11 Mod. 79.

2. Young v. Rex, 3 T. R. 98. 8 Anonymous, Lofft, 271: Rex 2.

8 Coalheavers’ case, 1 Leach, 4th ed. Benfield, 2 Bur. 980, 984; The State
64 ; and see Young v. Rex, 3 T. R. 98, ». Pile, 5 Ala. 72,

105. ® Commonwealth v. Ray, 1 Va. Cas.
* 1 Stark. Crim. Pl. 2d ed. 33. 262. ;
5 Commonwealth v. Sloan, 4 Cush. 10 Reg v. Devett, 8 Car. & P. 639;
52. Archb. Pl. & Ev. 13th Lond. ed. 54.

6 The State v. Gay, 10 Misso. 440.
[164]
CHAP. XVI.] JOINDER OF OFFENDERS. § 224

indicted ; for the want of qualification, by serving an appren-
ticeship, occasions the crime, and that defect is several in its
nature and confined to each.! So several cannot be jointly
indicted for the same perjury? nor as common scolds? nor
for the same barratry,‘ nor for the non-repair of the street
before their houses.5 And a misjoinder of this kind is fatal
in arrest of judgment,® and would be equally objectionable
on demurrer.” ?

§ 222. Where the indictment is against more defendants
than one for an offence committed by them jointly, it need
not employ the word jointly in describing the offence. Ac-
cording to the forms generally used, it simply names the de-
fendants, and says they did so and so.?

§ 223. Though persons are jointly indicted, they are not
necessarily to be tried together ;!° this being a matter within
the judicial discretion of the court, to be further considered
in another part of this volume. And if, where the indictment
is joint, only one of the defendants named therein is put on
his trial, he cannot object; and, should it appear in proof
that he was the only one concerned in the commission of the
offence, still there may be a verdict and judgment rendered
against him, the same as though he were indicted alone.

§ 224. The books contain various cases wherein indict-
ments have been sustained against numbers of. persons for
several offences of the same kind, charged to have been com-
mitted by them severally ; the offences, either in their nature

11 Salk. 382; 1 Vent.302;1 Roll. ploy the singular number; but it is

81. doubtful whether in all our States the
2 Rex v. Philips, 2 Stra. 921. indictment would be held therefore bad
2 Stra. 921. if he did.

10 The State v. Wise, 7 Rich. 412;
Bixbe v. The State, 6 Ohio, 86; The
State v. Spencer, 15 Ind. 249.

11 The State v. Bradley, 9 Rich. 168 ;
Brown v. The State, 5 Yerg. 367; The

8
4 2 Stra. 921.

5 9 Hawk. P. C. ¢. 25, § 89.

6 2 Stra, 921.

7 1 Stark. Crim. Pl. 2d ed. 36.

8 Commonwealth v. McChord, 2 Da-

na, 242.

® Johnson v. The State, 18 Ark. 684.
And see ante, § 172, where Hawkins says
the indictment should not lay the fact
charged in the singular number. In
practice the pleader would not often em-

State v. Clayton, 11 Rich. 581; The
State v. Thompson, 13 La. An.515, But
see Johnson ». The State, 13 Ark. 684;
Commonwealth v. McChord, 2 Dana,
242. And see In re Dougherty, 27 Vt.
325 ; Elliott v. The State, 26 Ala, 78.

[165]
§ 225 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

or in the actual facts, not being joint.1 Starkie? states the
doctrine as follows: “If, in the same indictment, as found by
the grand jury, several offences be alleged to have been com-
mitted by several persons, no advantage it seems can be
taken, either upon demurrer or in arrest of judgment ;
though the court will, in its discretion, either quash the in-
dictment altogether, or use such measures as shall obviate
any inconvenience? to the defendants which might otherwise
arise. For the charging the offences to have been committed
severally, makes each such charge a separate indictment.
And though there are instances where indictments have been
quashed for charging several offences to have been committed
by several persons, as against several officers, guod colore of-
jiciorum suorum separaliter, extorsive ceperunt, &e.; yet
there are a great number of authorities which show, that an
indictment charging the offences to have been committed
separaliter would be good.

§ 225. “ Thus, though an indictment against four persons
for erecting four several inns, and selling victuals to travel-
lers ad commune nocumentum,® was quashed, yet it was for
want of alleging that they did the acts separaliter, which
would have made the charges as several indictments. And
according to Lord Hale,’ ‘it is common experience at this
day that twenty persons may be indicted for keeping disor-
derly houses, and they are daily convict upon such indict-
ments ; for the word separaliter makes them separate indict-
ments.’ But it seems, that, to warrant such a joinder in the
same indictment, the offences must be of the same nature,
and such as will admit of the same plea and the same judg-
ment.” Proceeding to distinguish felony from misdemean-
or, he adds: “ It does not appear to have been allowable to

1 And see Crim. Law, I. § 812. 7 An American judge expressed this
21 Stark. Crim, Pl. 2d ed. 43 etseq. point thus: for several “ offences, — all
53 T.R. 106; Rex v. Kingston, 8 being of the same kind, admitting of
East, 41, 46. the same plea and the lke judgment,
4 2 Hale P. C. 174. and being subject to the same punish-
5 2 Roll. Rep. 345 ; and per Law- ment in kind, even though in different
rence, J. 8 Kast, 47; 2 Hale P.C. 174. degrees, — one indictment, charging the
® 2 Hale P. C.174; 3 T. R. 106. offenders severally, may be maintained
[166 ]
CHAP. XVI] JOINDER OF OFFENDERS. § 227

join charges of different felonies against different persons, in
the same indictment, unless such felonies arose out of the
same transaction.” !

§ 226. This mode of indictment has not been much fol-
lowed with us; and, in most of our States, perhaps all, it
would doubtless be discouraged by the courts. Yet it has
been recognized as sufficient in law.? An instance of its em-
ployment is where separate persons make their unconnected
bets upon one game at faro; here, each is guilty of a several
offence, yet it has been held that they may be indicted togeth-
er, if the indictment employs the word severally, while still
the court will not encourage this mode of procedure, for it
produces inconvenience.®

§ 227. Starkie says: “* Where the felonies have been im-
mediately connected, as in the case of a principal and his ac-
cessories, either before or after the offence, it has been the
usual course to include them in the same indictment.” * But

this is matter which will find a place elsewhere in the present
volume.

against all of them,” Robertson, C. J. na, 242; Johnson v. The State, 13 Ark.
in Commonwealth v. McChord, 2 Da- 684.
na, 242, 243. 8 Johnson v. The State, supra.
1 1 Stark. Crim. Pl. 2d ed. 43, 44. 41 Stark. Crim. Pl. 2d ed. 44; re-
2 Commonwealth v. McChord, 2 Da-  ferring to 2 Hale P. C. 178.

[167]
§ 229 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

CHAPTER XVII.
SURPLUSAGE AND VARIANCE.

§ 228. TuE subject of the present chapter is one partly of
pleading and partly of evidence. It is brought within this
division of the work, simply because the work treats of plead-
ing before it does of evidence.! In the main, the same ques-
tions in principle are involved in this subject, in its connec-
tion with the criminal law, as are discussed in our books of
pleading and evidence, in their relation to the civil depart-
ment. Since, therefore, these volumes are designed princi-
pally to unfold what is peculiar in our criminal jurisprudence,
in distinction from the civil, this chapter will be comparative-
ly brief.

§ 229. It isa general doctrine, that, if an indictment con-
tains unnecessary averments, these are to be treated as mere
waste material, to pass unnoticed, having no legal effect
whatever ; or, in more technical language, they are surplus-
age, which need not be proved, and all things go on as though
they were not in the record. To use the words of a learned
judge, “‘ whatever is immaterial to the indictment is surplus-
age, which may be wholly disregarded or rejected.”’* If, for
example, the indictment is founded on a statute, and it con-
tains allegations covering all the terms of the statute and
making a complete offence, then it adds something by way of
making the offence appear more enormous, this latter matter
may be disregarded as mere surplusage ; it will have no ef-

1 Ante, § 3, 39, 83. monwealth v. Bennet, 2 Va. Cas. 235 ;

2 Clay, C. J. in Rose v. The.State, Smith v The State, 8 Ohio, 294 ; Unit-
Minor, 28 ; People v. White, 22 Wend. ed States v. Burroughs, 3 McLean, 405 ;
167 ; Commonwealth v. Scott, 10 Grat. Rex v. May, 1 Doug. 193, 1 T. R. 287,
749; The State v. Elliott, 14 Texas, note; People v, Lohman, 2 Barb. 216 ;
423 ; The State v. Harden, 1 Brev.47; Lodano v. The State, 25 Ala. 64; The
Dick v. The State, 30 Missis. 631; Rex State v. Stedman, 7 Port. 495.
v. Sadi, 1 Leach, 4th ed. 468; Com-

[168]
CHAP. XVII] SURPLUSAGE AND VARIANCE. § 281

fect to vitiate the indictment, and it need not be proved.!
Thus, if the indictment-for an unlicensed sale of intoxicating
liquor contains the unnecessary averment, that the glass of
liquor sold by the defendant was “ the second glass” which he
had sold to the same person on the same day, such averment is
mere surplusage, which may be wholly unnoticed in the proof.

§ 230. Suppose there is matter in the indictment defec-
tively alleged ; yet, if, rejecting all this, enough remains to
meet the requirements of the law, the indictment is good ;
the surplusage passes for nought.? For instance, in an in-
dictment for perjury containing several assignments of false
swearing, if all the assignments but one are defective, yet one
is good, it will support a general verdict of guilty.* Again, in
order to justify the admission of evidence tending to prove
embezzlement, there must be alleged in the indictment mat-
ter sufficient to apprise the defendant that embezzlement is at
least one of the charges made against him. Therefore when
the allegation was, that the defendant did “embezzle, steal,
take, and carry away ” certain goods, this was held not to be
bad for duplicity ; because, there being no complete charge
of embezzlement, the word ‘‘embezzle” could be rejected as
surplusage.® If an indictment for libel is good without an
averment in the form of an innuendo, the innuendo may be
rejected as surplusage.®

§ 231. And whenever, by disregarding unnecessary words
as though they were struck from the indictment, it will then
be found good, it may be treated as though this were done.”
Thus, where an indictment for a libel alleged the libellous
matter to have been written ‘“‘of and concerning the only

se

1 The State v. Fleetwood, 16 Misso. 4 Commonwealth v. Johns, 6 Gray,
448; The State v. Cheatwood, 2 Hill, 274.

S. C. 459 ; The State v. Cozens, 6 Ire. 5 Commonwealth v. Simpson, 9 Met.
82; Rex v. Foot, 2 Show. 455. 138.

2 The State v. Staples, 45 Maine, 6 Commonwealth v. Snelling, 15
$20. See also Hodgman v. People, 4 Pick. 321. See also Fitch v, Rempub-
Denio, 235. licam, 3 Yeates, 49.

8 The State v. Noyes, 10 Fost. N. H. 7 The State v. Bailey, 11 Fost. N. H.
279; Rawlings v. The State, 2 Md. 521; The State v. Corrigan, 24 Conn.
201; The State v. Noble, 15 Maine, 286 ; Commonwealth v. Bolkom, 3
476. Pick. 281.

VOL. I. 15 [169]
§ 231 [BOOK 1.

daughter of Jane Roach,” and the proof was, that the person
meant was the daughter of Jane Roach, but not her only
daughter, there was held to be no variance. In another
case, the indictment ran as follows: “ that Francis Morris the
goods and chattels above mentioned, so as aforesaid feloni-
ously stolen, taken, and carried away, feloniously did receive
and have; he the said Thomas Morris then and there well
knowing the said goods and chattels last mentioned to have
been feloniously stolen, taken, and carried away.’ It was
objected that the person alleged to have the knowledge neces-
sary to constitute the crime of receiving was a person other
than the receiver; therefore the indictment could not be
supported against the latter. But the judges held, that the
words “ the said Thomas Morris” might be rejected as sur-
plusage ; for “the indictment would be sensible and good
without these words,’? while their presence there rendered
it senseless. And generally, where there are words which
obstruct the sense, and render the indictment meaningless,

PLEADING AS RESPECTS THE INDICTMENT.

they may be rejected if thereby it is made sensible.®

1 The State v. Perrin, 3 Brev. 152,
1 Tread. 446, 447, Brevard, J. observ-
ing: “I think it was unnecessary to state,
in the innuendo, that she was an only
daughter, as it would have been sufii-
ciently certain and complete without
it. If this was not necessary to sup-
port the indictment, it was not neces-
sary to be proved.”

2 Rex v. Morris, 1 Leach, 4th ed. 109.
So likewise in a complaint which al-
leges that the defendant did make an
assaalt on Lucy Ann Keach and her
did strike, with a ferule, “ divers griev-
ous and dangerous blows upon the head,
back, shoulders, and other parts of the
body [of her the said Lucy Ann Leach,
whereby the said Lucy Ann Leach was
cruelly beaten and wounded, and other
wrongs to the said Lucy Ann Leach
then and there did and committed] to
her great damage,” the words here en-
closed in brackets may be rejected as
surplusage, leaving a sufficient charge
of an assault on Lucy Ann Keach.

[170]

Commonwealth v. Randall, 4 Gray, 36.
Again, in an indictment charging that
the defendant, Alva Hunt,“ in and upon
one Peddy Harvey did make an assault,
and her, the said Peddy Hunt, then and
there did beat, wound and ill-treat, with
an intent, her the said Peddy Harvey,
&c., to ravish”’; the clause “and her
the said Peddy Hunt then and there,”
&c., may be rejected as surplusage.
Commonwealth v. Hunt, 4 Pick. 252.
Where, in an indictment for larceny,
the property stolen was alleged to be-
long to Richard Gaines, and it was then
recited to be the property of Robert
Gaines, the whole was held to be good,
the recitation being surplusage; be-
cause, “ if that member of the sentence
in the indictment were stricken out, it
would appear yet very manifest that
the bank bills are laid to be the proper-
ty of Richard Gaines.” Greeson o.
The State, 5 How. Missis. 33, 42.

8 Rex v. Redman, 1 Leach, 4th ed.
477.
CHAP. XVII. ] SURPLUSAGE AND VARIANCE. § 233

§ 232. But we must distinguish between a case in which
the words we would reject, render the indictment senseless ;
and one in which they leave it sensible, to the detriment of
the whole structure. Thus it, is said in Comyns’s Digest:
“Tf a man, by the allegation of a thing not necessary, shows
that he had no cause of action, this, though surplusage, shall
hurt ; as, in assize, if the plaintiff makes a title, which he
need not, and the title is not good, the whole shall abate.” }
Thus also, says Gould, “if, in declaring upon a public stat-
ute, the plaintiff so counts upon it as to confine himself to its
terms as recited (as by the words contra formam statuti pre-
dicti), but misrecites it in a material part, the declaration is
ill in substance. For, though the recital of a public statute is
unnecessary, yet, it being thus recited and counted upon, the
plaintiff must recover upon it, if at all, as recited. But, as it
must of necessity appear judicially to the court that no such
statute as that recited exists, it must consequently appear, in
the same manner, that the declaration discloses no right of
action.” The same doctrine applies to recitals of statutes in
indictments.?

§ 233. It is not, therefore, everything in an indictment
which is subject to be rejected as surplusage, however neces-
sary in order to render it good in law, or to adapt it to the
evidence produced. For example, an indictment for receiving
stolen goods knowing them to be stolen, need not state by
whom the larceny of them was committed ; yet, if it does, the
evidence must correspond with this allegation.* And where

1 Com. Dig. Pleader, C. 29.

2 Gould Pl. v. 3, §171.

% 2 Hale P. C.172; 2 Hawk. P. C.
ce. 25, § 100-102 ; Anonymous, 4 Co.
48a; Butler v. The State, 3 McCord,
383. Some of the criminal law author-
ities seem to go to the extent, that the
misrecital will in all cases.make the
indictment bad ; but the better doctrine
sustains the distinction set down in our
text. Thus Lord Hale, ut sup. says:
“Tf a general statute be recited in an
indictment, and be misrecited in a point

material, and conclude contra formam
statuti predicti, it is fatal, and the in-
dictment shall be quashed ; but it
seems, that, if it conclude generally,
contra formam statuti in hujusmodi casu
edit. et provis. it is good, for the court
takes notice of the true statute, and
will reject the misrecital as surplus-
age.”

* Commonwealth v. King, 9 Cush.
284; Rex v. Woolford, 1 Moody & R.
384. There are various other cases in
which, though it is not necessary to

[171]
§ 235 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

an indictment for embezzlement could not be supported be-
cause the offence was not an embezzlement but a larceny,
and the larceny count stated the larceny to have been com-
mitted ‘“‘in manner and form aforesaid,” it was held, that the
prisoner could not be convicted.

§ 234. There are many cases in which an offence may be:
committed in different ways; and, in these cases, if the in-:
dictment sets it out as done in a particular way, the proof’
must show it so, or there will be a variance between it and
the indictment. Thus, if the charge is, that the defendant
did such and such things to the disturbance of a public meet-
ing, so much of these specific things must appear in the evi-
dence to have been done as were necessary to constitute the
offence ; it not being permissible to show, instead, other acts
of disturbance which would have been sufficient had they been
alleged.2 And where a statute made it an offence to be a
common seller of “ spirituous or intoxicating liquors,” with-
out license, and the defendant was charged with being such
common seller of “ spirituous and intoxicating liquors,” it
was held, that, though proof of the liquor being either spirit-
uous or intoxicating would satisfy the demands of the statute,
yet to meet the allegation it must be shown to be both.®

§ 235. And wherever there is a necessary allegation which
cannot be rejected, yet the pleader makes it unnecessarily
minute in the way of description, the proof must satisfy the’
description as well as the main part, since the one is essential
to the identity of the other. Thus, it is sufficient in an in-
dictment for a libel, to allege that the libel was published on
a particular day, and proof of the publication on the same or

allege the name of a person connected
with the offence, yet, if it is alleged,
the proof and allegation must corre-
spond. The State v. Johnston, 6 Jones,
N C. 485; The State v. Weeks, 30
Maine, 182; John v. The State, 24
Missis. 569.

1 Rex v. Murray, 1 Moody, 276, 5
Car. & P. 145.

2 Stratton v. The State, 13 Ark. 688.

3 Commonwealth v. Livermore, 4

[172]

Gray, 18. See also Jackson v. The
State, 4 Ind. 560 ; Iseley v. The State,
8 Blackf. 403.

* United States v. Keen, 1 McLean,
429; The State v. Jackson, 30 Maine,
29; United States ». Brown, 3 Mc-
Lean, 233; United States v. Howard,
3 Sumner, 12; The State v. Noble,
15 Maine, 476; Dick v. The State, 30
Missis. 631.
CHAP. XVII. ] SURPLUSAGE AND VARIANCE. § 236

any other day will support the charge ; yet, if it add the date
of the newspaper containing it, this date, though it need not
have been mentioned, must be proved! Proof of cutting
black-oak trees will not support an indictment for malicious
mischief done to white-oak trees ;* neither will proof of forg-
ing a note under seal support a charge of forging one not
under seal.? The illustrations of this general doctrine, to be
found in the books, are almost endless. The limit of the
doctrine is, that, if the entire averment, of which the descrip-
tive matter is a part, can be rejected as surplusage, then the
descriptive matter falls with the rest, and it need not be
proved.t

§ 236. When we come to treat, in the second volume, of
the procedure connected with the specific offences, we shall
have occasion to present much matter which might properly
enough form a part of this chapter. In like manner, in this
volume, doctrines connected with surplusage and variance
will not unfrequently require incidental notice in their rela-
tions to the other topics discussed.

1 Commonwealth v. Varney, 10 Cush. 3 Hart v. The State, 20 Ohio, 49.

402. * The State v. Copp, 15 N. H.
2 Commonwealth v. Butcher, 4 Grat. 212.
544,

15* [173]
§ 238 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

CHAPTER XVIII.

THE AVERMENTS OF TIME AND OF PLACE AS CONNECTED WITH
THE TIME.

§ 237. Says Starkie: “The averment of place is partly
substantial and partly formal; substantial, since it shows the
offence to have been committed within the jurisdiction of
those who inquire into it, and formerly it was essential to
the procuring of a jury to be returned from the neighbor-
hood ; formal, because it is satisfied by proof of the commis-
sion of the offence within the county, without regard to the
particular vill stated in the indictment. The averment of
time is altogether formal, since it is unnecessary to prove the
offence to have been committed at the time alleged in the in-
dictment, unless some time be limited for the prosecution, or
time itself be material to the constitution of the offence.
These averments therefore convey, in general, little informa-
tion either to the defendant or his judges. It is, neverthe-
less, a general rule, that the time and place! of every mate-
rial fact must be plainly and consistently alleged ; and such
a degree of precision does the law exact in this respect, that
any uncertainty or incongruity in the description of time and
place will vitiate the indictment.’ ?

§ 238. In a previous chapter,2 we considered what de-
scription and proof of the place the law requires ; with ref-
erence, however, only in part to the scope of this chapter.
An indictment begins by setting out the place of the offence,
as an allegation distinct from that of the time. It then sets
out the time. But, as it continues on in the description of
the offence, it holds itself still to the time and place by link-

15 T.R. 620; 2 Hawk. P. C. ¢. 25, 2 1 Stark. Crim. Pl. 2d ed. 54.
§77; F. Ind. 20; Dyer, 164 ; 2 Hale 3 Ante, § 83 et seq.
P.C. 177.
[174]
CHAP. Xvi. ] AVERMENTS OF TIME, ETC.

§ 239

ing the words “then and there” to the respective material
allegations. In the former chapter, we took into view only
the main, or first, allegation of place, with its proofs; in this
chapter, we shall first consider the same of the time, then we
shall proceed with the other matter as respects both time and
place.

§ 239. Every indictment, therefore, must allege a day and
year certain on which the offence was committed.! This is
‘the common-law rule prevailing in most of our States; though
there are States in which statutes have made the allegation
of time unnecessary, or permitted it to be less specific.”
Where the common-law doctrine prevails, any repugnancy or
uncertainty as to the time renders the indictment bad.®
Therefore if the indictment states two days on which the sin-
gle criminal act was done, leaving it doubtful which day is
meant, or making it plain that both days are, which would
create a repugnancy, it cannot be sustained. Thus, where
the time was stated to be “ on the thirtieth day of November,
in the year of our Lord one thousand eight hundred and one,
and in the XXV. [instead of XXVI.] year of the Independ-
ence of the State,” the allegation was held to be fatally de-

fective.5

1 Rex v. Hollond, 5 T. R. 607 ; Rex
v. Mason, 2 Show. 126; Anonymons,
Lofft, 228 ; Roberts v. The State, 19 Ala.
526; The State v. Baker, 34 Maine,
52; Erwen v. The State, 13 Misso.
306; The State v. Hanson, 39 Maine,
337 ; The State v. Beckwith, 1 Stew.
318; The State v. Offutt, 4 Blackf. 355 ;
The State v. Roach, 2 Hayw. 352.

2 The State v. Stumbo, 26 Misso.
306 ; The State v. Magrath, 19 Misso.
678 ; People v. Littlefield, 5 Cal. 355;
People v. Kelly, 6 Cal. 210 ; The State
v. Sam, 2 Dev. 567; post, § 242.

8 The State v. Hardwick, 2 Misso.
226 ; Jane v. The State, 3 Misso. 61.

* Thus, a complaint which alleges,
that the defendant “on the 23d and
29th days of July, 1852, did sell a quan-
tity of spirituous liquor, to wit, 1 gill
of brandy,” charges only one sale, and

is insufficient in law, because it does
not state the time with adequate cer-
tainty. Commonwealth v. Adams, 1
Gray, 481.

5 The State v. Hendricks, Confer-
ence, 369. In an English case, there
was an indictment found at the summer
assizes in the first year of the reign of
George IV. It charged that the pris-
oner committed the offence on the 20th
day of July, in the fourth year of
the reign of King George the Fourth,
against the peace of our lord the now
king ; and the, judges held, that the
words ‘fourth year of the” might be
rejected as surplusage; because, they
said, “the words ‘against the peace of
our lord the now king’ showed the
mistake was in the year, and not in the
reign.” Rex v. Gill, Russ. & Ry. 431.
In a New York penal cause, where dif-

[175]
§ 241 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

§ 240. But where the indictment charges, that the defend-
ant did the criminal act on a day which it mentions, and, in
general terms, on divers other days, without specifying the
others, the latter clause, being in itself an insufficient allega-
tion of time, may be rejected as surplusage.2. Thus, where
the charge was, that the defendants, to use the words of the
report, on ‘such a day, et diversis aliis diebus et vicibus tam
antea quam postea, keep a common gaming house,” this was
held to be a good allegation of keeping the house on the one
day mentioned. True, in this particular case, ‘‘ more days
might have been laid ;* but the time is so uncertain as to all
but one day, that only forty shillings are recoverable.”* And
where an indictment sets out, that the defendant sold liquors
without license on a day which it mentions, and at divers
times between this day and the finding of the bill, it is suffi-
cient ; because the inadequate allegation of other days may

be rejected as surplusage.®

§ 241. Some points have been already stated, showing by

ferent rules prevail from those which
govern indictments at the common law,
on a complaint for selling spirituous
liquors without a license, the objection
was taken, that, in the words of the
judge, “the complaint did not specify
the days upon which the alleged sales
were made with sufficient precision to
warrant the proof.” The allegation in
the complaint was, that the defendant
sold the liquors ‘on the 6th, 7th, 8th,
and 9th days of June, and for thirty
days previous to said 6th of June, and
on each and every of said days,” and it
was held to be sufficient to warrant the
proof of any sales within that period.
Mayor of New York v. Mason, 4 E.
D. Smith, 142, 149.

1 Ante, § 230.

° People v. Adams, 17 Wend, 475 ;
Cook v. The State, 11 Ga. 53; Com-
monwealth v. Pray, 13 Pick. 359 ; The
State v. Woodman, 3 Hawks. 384. See
Nichols’s case, 7 Grat. 589.

3 See post, § 248.

4 Rexv. Dixon, 10 Mod. 335, 337, 338.

[176]

5 The State v. Munger, 15 Vt. 290.
Sometimes questions of this sort come
before the tribunals presenting nice
shades of distinction ; but the tenden-
cy of the decisions is to sustain the in-
dictment whenever it can be reasonably
done. In one case the indictment al-
leged, that the defendant, on a day and
at a place named, “ and there on divers
other days and times, between the first
day of January last and the first Mon-
day of May, did presume to be and
was a retailer, and seller of wine, rum,
brandy, and other spirituous liquor,”
&c.; and then it went on to aver, that
the defendant “did then and there”
make a particular sale, which it speci-
fied. Upon this the court held, that the
general allegation of time, with what
follows about being a seller, &c., might
be rejected as surplusage ; leaving a
good separate charge of making a par-
ticular sale on the day specifically men-
tioned. Commonwealth v. Bryden, 9
Met. 137. See also, on rejecting the
words, “divers days,” &c., as surplus-
CHAP. XVIII. ]

AVERMENTS OF TIME, ETC. § 242

what words the day may be designated! According to the.
doctrine laid down in the place here referred to, the terms
denoting the year should be accompanied by the words “ the
year of our Lord,’? or at least by the word “ year,” or the
letters A. D., to indicate what is meant. In North Carolina,
however, where the expression was, “‘on the third day of Au-
gust, eighteen hundred and forty-three,” not even the word
“year” or its equivalent being used, it was held, that, al-
though this defect would have been fatal at the common law,
it was cured by the act of assembly of 1811. Where the al-
legation was, that the offence was committed on a specified
“day of September now past,” it was held to be insufficient ;
because, neither by its terms, nor by any reference to other
things, did it specify the year, since every September which
has been, is now past.*

‘§ 242. Where the time is set down as “on or about” the
day mentioned, the allegation is insufficient. Yet in some
of the States there are statutes by force of which this form
becomes adequate. Thus in Indiana it is provided, “ that
the precise time of the commission of an offence need not be
stated in the indictment or information ; but it is sufficient if
shown to have been within the statute of limitations, except
where the time is an indispensable ingredient in the offence.”
And under this statute the words “ or about,” in a case like
this, were rejected as surplusage.’ In Connecticut, without
the aid of a statute, the words and figures “on or about the
24th day of May, 1847,’ were held to be sufficient in the
complaint of a grand juror before a justice of the peace for a

age, United States v. La Caste, 2 Ma-
son, 129, 140; post, § 247, 248.

1 Ante, § 169,

2 Whitesides v. People, Breese, 4.
But see post, § 242.

8 The State v. Lane, 4 Ire.113. In
England, the allegation of time being,
“in the tenth year of our Sovereign
Lady Queen Victoria,” the Court of
Exchequer Chamber held, that, by
Stat. 7 Geo. 4, c. 64, § 20, this was no
ground of error. Broome v. Reg. 12
Q. B. 834.

* Commonwealth v. Griffin, 3 Cush.
523. Where the day was mentioned as
the “first March,” instead of the “ first
day of March,” the court observed, that
this “‘ might be suffered to pass.” Sim-
mons v. Commonwealth, 1 Rawle, 142.

5 United States v. Crittenden, Hemp.
61.
® Cokely v. The State, 4 Iowa, 477 ;
People v. Aro, 6 Cal. 207; ante, § 239.

7 Hampton v. The State, 8 Ind. 336 ;
Hardebeck v. The State, 10 Ind. 459.

8 See ante, § 169, 241.

[177]
§ 244 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

violation of the statutes regulating the sale of intoxicating
liquor.}

§ 248. “ But,” says Starkie,? “ the indictment will be good
if the day and year can be collected from the whole statement,
though they be not expressly averred ; as where the time of
the caption of the indictment is stated,’ and the offence is
laid to have been committed primo die post Pasch., ult. So
an indictment laying the offence on the Thursday after the
day of Pentecost, in such a year, is good.’ So if it lay it to
have been committed on the 10th of March Jast, if the year
can be ascertained by the style of the sessions before which
the information was taken.” ® In Massachusetts, a complaint
before a justice of the peace alleged the offence to have been
committed “on the third day of June, instant.” It had no
other date; but the jurat, indorsed upon it, was “ Bristol, ss.
Received and sworn to on the fourth day of June, A. D. 1855,
before said court.”” Thereupon it was held, that, as the year
of making the complaint did not appear, but only the year
when it was received and sworn to, there was nothing to
which the words “ the third day of June, instant,’ could re-
fer, wherefore the allegation of time was insufficient.”

§ 244. There are some offences which cannot, in their
nature, be committed by a single act; and there are other
offences which may be constituted by a succession of acts

1 Rawson v. The State, 19 Conn.
292. Said Chureh, C. J.: “ We are
not informed, that, in proceedings be-
fore justices of the peace and police
magistrates, either in England or else-
where, for the violation of statute regula-
tions merely, the same precision of form
has ever been required or observed, as
has been generally adopted in indict-
ments and informations. A complaint
by a town grand juror, a prosecuting
officer unknown to the common law,
has not been regarded by usin the same
light as an indictment or an informa-
tion filed by the State’s Attorney ; and,
although such a proceeding ought to be
reasonably certain and definite in its
specifications of crimes, yet we do not

[178]

see that the cause of truth and justice
will be promoted by requiring here
technical niceties of no practical im-
portance, which the force of precedent
alone has introduced into higher and
more solemn modes of prosecution.”
p. 296, 297. See post, § 247 and note.

2 1 Stark. Crim Pl. 2d ed. 55.

8 Ante, § 102; Jacobs v. Common-
wealth, 5S.& R. 315.

* Com. Dig. Indictment, G. 2.; 2
Hawk. P. C. c. 25, § 78.

5 7 H. 6, 39.

® Lamb. b. 4, ¢. 5, f.491; 2 Hawk.
P. C. ¢. 25, § 78.

7 Commonwealth v. Hutton, 5 Gray,
89. And see the discussion, ante, §
102.
CHAP. XVIII. ] AVERMENT OF TIME, ETC. § 245

performed at different times, or may not, according to circum-
stances. Of course, when these offences are set out in the
indictment, there are, or there may be, more days than one
mentioned in which the successive acts were done. Not to
speak of the familiar instance, where, in an indictment for
murder, the day of the stroke and the day of the death must
both be laid, there occurred the following case: an indict-
ment charged, that the defendant caused the death of his wife
by a series of beatings, the first upon the 25th of Septem-
ber, 1852, the second on the 26th of the same month, the
third on the 8d of October, and the fourth on the 4th of Oc-
tober ; then it stated the death to have taken place on the
last-mentioned day. The court held the indictment to be
good ; because, said Shaw, C. J., “ murder may be commit-
ted in the manner set forth. It is unusual, but we cannot say
it is impossible.””? ** Nor is it,’ says Chitty,? “in homicide
alone that distinct periods must be laid for the commission
of particular acts ; for it has been holden, that a sheriff’s re-
turn of a rescue, as well as indictment for that offence, is bad,
without showing the day and year both of the arrest and the
rescue, and that the time of the latter is not sufficiently
shown by showing that of the former. And where an indict-
ment for a rescue sets forth, that a third person at a certain
time and place committed a felony for which the officer took
and arrested him, and in his safe custody then and there had
and kept him, it is doubtful whether it be not insufficient; be-
cause no time of the arrest is charged in the same sentence,
and it is not clear whether the time of the custody can, by
force of the conjunction, be applied to the arrest, but the con-
trary seems to be the better opinion.” ®

§ 245. There are some offences which are continuing from
day to day; and, if they had a beginning, they had not, at
the time the indictment was found, an end. Such, for in-
stance, is the erection of a nuisance on a public way. The

11 Chit. Crim. Law, 222. 4 2 Hawk. P. C. c. 25, § 77; Dyer,
2 Commonwealth v. Stafford, 12 164 b.; contra, 2 Bulst. 208.

Cush. 619. 5 Dyer, 164; and see 3 P. Wms.
8 1 Chit. Crim. Law, 222. 484,497; Russ. & Ry. 276.

[179]
[BOOK IL.

§ 245 PLEADING AS RESPECTS THE INDICTMENT.

guilty person may be indicted for the single act of erecting
the nuisance; when the indictment properly sets out, that the
defendant, on a day which it names, committed the offence.
' But if, the nuisance still remaining, the prosecutor desires to
have judgment against the defendant for its abatement, he
adds to the allegation of the day of its erection what in legal
phrase is termed a continuando. And, without the continu-
ando, there can be no judgment for the abatement! There
is no uniform set of words necessary to constitute a continu-
ando. Chitty gives us, in an indictment for a nuisance to a
public way, the following. After alleging the setting up of the
nuisance on a day mentioned, it proceeds to aver, that the de-
fendants, ‘from the said day until the day of the taking of
this inquisition, &c., unlawfully and injuriously did keep,
maintain, and continue, and still do keep, maintain, and con-
tinue” the same.” In civil pleadings the continuando was
formerly considerably employed ; and in Jacob’s Law Dic-
tionary the word is thus defined: “ A word used in a spe-
cial declaration of trespass, when the plaintiff would re-
cover damages for several trespasses in the same action ;
and, to avoid multiplicity of suits, a man may in one ac-.
tion of trespass recover damages for many trespasses, lay-
ing the first to be done with a continuando to the whole
time in which the rest of the trespasses were done.” ® There
were several nice distinctions as to when a continuando
might be resorted to ; and when, instead of this, the trespass
must be alleged to have been committed “ on divers days and
times” between a particular day and another, or the day of
the commencement of the suit. At length, the continuando
was entirely dropped in practice, though the pleader might
resort to it if he chose, and instead of it the other mode of al-

1 Rex v. Stead, 8 T. R. 142. Lord be abated. But in this case it does not

Kenyon, C. J. observed : “ When a de-
fendant is indicted for an existing nui-
sance, it is usual to state the nuisance
and its existence down to the time of
taking the inquisition ; it was so stated
in Rex v. Pappineau, 2 Stra. 686, et
adhuc existit; and in such cases the
judgment should be, that the nuisance

[180]

appear in the indictment that the nui-
sance was then in existence, and it
would be absurd to give judgment to
abate a supposed nuisance which does
not exist.” p. 144.

2 8 Chit. Crim. Law, 612.

8 Jacob Law Dict. tit. Continuando.
CHAP. XVIII] AVERMENT OF TIME, ETC. § 247

legation just mentioned was used wherever the continuando
had been deemed proper.

§ 246. In the criminal law, as we have just seen, the con-
tinuando is still used ; also the other form, “‘ on divers days,”
&c., is frequently employed. Whether the latter would be
always held to supply the place of the continuando, it is per-
haps not safe to state. The books contain precedents in which
both forms are blended.? And what adds somewhat to the
confusion is, that often in the opinions of modern judges each
form is in its turn spoken of under the one name continuando.

§ 247. Starkie? says, ‘“‘It has been adjudged sufficient in a
conviction,’ a matter which proceeds on somewhat different
principles from an indictment, ‘“ to allege the offence to have
been committed in the interval between two days specified.” 4
But, he adds: “ An information charging the defendant with
having been guilty of divers extortions, during a specified
time, was deemed to be insufficient on motion in arrest of
judgment ;° and the court said, it might as well be said an
indictment for battery would be good, setting forth that the

1 Gould Pl. c. 3, § 86-96; 1 Saund.
Wms. Ed. 24, note.

2 Thus, in 3 Burn’s Justice, 28th ed.
1104, we have a general form of an in-
dictment for nuisance alleging, that the
defendant, on a day mentioned, ‘“ and
on divers other days and times, as well
before as afterwards,’ committed the
nuisance, “ and the same nuisance so as
aforesaid done, doth yet continue and
suffer to remain.”

3 1 Stark. Crim. Pl. 2d ed. 55, 56.

4 Referring to Rex v. Chandler, 1
Ld. Raym. 581, where Holt, C. J. said,
“ that in these convictions by justices
of the peace in a summary way, where
the ancient course of proceeding by in-
dictment and trial by jury is dispensed
with, the court may more easily dis-
pense with forms ; and it is sufficient
for the justices, in the description of
the offence, to pursue the words of the
statute ; and they are not confined to
the legal forms requisite in indictments
for offences by the common law.” Also

VOL. I. 16

referring to Reg. v. Simpson, 10 Mod.
248, 341, where it was held, that a con-
viction before a justice of the peace on
a penal statute, describing the offence
to have been committed between such
a time and such a time, could be main-
tained. And it was said to be “ the con-
stant course of informations, in the
court of exchequer, to set forth the
time in the manner it is done here.” p.
249. See ante, § 242, note.

5 Referring to Rex v. Roberts, 4
Mod. 101, 3 Salk. 198, Comb. 193,
Carth. 226, 1 Show. 389, Holt. 363,
Starkie mentions the report only as it
is found in Modern. I have added
references also to the other books in
which it is contained. The precise
words of the information are nowhere
given, but Carthew says, it was laid in
it, “that Roberts, being the common
ferryman, between 7 Septembris, anno 2,
and the day of exhibiting this informa-
tion, injuste,” &.

[181]
§ 248 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

defendant beat so many of the king’s subjects between such a
day and such a day, as that the principal indictment was
good.” Indeed we have already seen, that, according to
other authorities, such a general allegation is void in an indict-
ment; whence it is, that, if besides this it contains a specific
mention of a day on which the offence was committed, the
general matter, thus inadequately set out, may be rejected as
surplusage. Hawkins states this collection of points thus:
“Tf an indictment charge a man with having done such a
nuisance such a day and year, &., and on divers other days,
it is void only as to the facts on those days which are uncer-
tainly alleged, and effectual for the nuisance on the day speci+
fied. But if it charge a man generally with several offences
at several times, without laying any one of them on a certain
day ; as, with extorting divers sums of divers subjects for a
passage over such a ferry, &c., between such a day and such
a day; it hath been adjudged that it is wholly void. Yet it
hath been solemnly resolved, that a conviction of deer-steal-
ing, setting forth the offence between the eighth and the
twelfth of July, &c., is sufficient.” 2

§ 248. We have, then, the following distinctions: When
the offence is of such a nature that it consists only of an act
or series of acts performed connectedly on one day, it cannot
be alleged to have been committed on two days, without ren-
dering the indictment void.? If, however, it is adequately al-
leged to have been committed on a particular day; and inad-
equately, to have been committed also on another day ; the
latter allegation is to be deemed mere surplusage, and the in-
dictment is good.* But if the offence is such in its nature
that it can or must be committed on two or more days, yet

XN

1 Ante, § 240.

29 Hawk. P. C. ec. 25, § 82 A
North Carolina judge of great learn-
ing stated the matter as follows: “ As
to the objection that the acts are laid on
the third day of March, and on other
days and times both before and after,
the distinction is between laying them
at several times without any certain
day as to any one of the acts, and lay-

[182]

ing them, as heré, on @ day certain and
others uncertain. In the former, the
indictment is bad altogether; but'in the
latter, it is void only as to the uncer-
tain days, and sufficient as to the parts
to which the certain time is annexed.”
Ruffin, C. J. in The State v. Jasper, 4
Dev. 323, 327.

8 Ante, § 239.

* Ante, § 240, 247.
CHAP. XVIIL] AVERMENT OF TIME, ETC. § 249

all which is done may be deemed in law as amounting to one
offence only, then the indictment may pursue the fact, and
allege it to have been done, wholly or in its parts as the case
may require, on more days than one! Where an offence,
like a nuisance, is alleged with a continuando proper, the ob-
ject of this allegation is simply to enable the court to pass
some special judgment, or impose a more aggravated pun-
ishment ; as, in the case of the nuisance, to abate it;?
and there is, in contemplation of the doctrine of time, only
a single day, as in’ other cases, on which it is charged
to have been committed. This appears to be the true
state of the matter as it stands in the English books and
the American ones generally ; but, perhaps in Massachu-
setts and some other particular States, there may have
been distinctions taken not in every minute shade harmo-
nious with this view. Of this, however, we shall consider
when we come to treat of the procedure in some specific
offences in which the question will arise, particularly that
of the sale of intoxicating liquors without license?

§ 249. “ Where an indictment,” says Hawkins, “ charges
@ man with a bare omission, as the not scouring such 4
ditch, &c., it is said, that it need not show any time.’ 4

1 Ante, 240, 244. The reader should
remember, that this is a statement of
what may be, if the pleader chooses,
not of what mustbe. For, as observed
by Starkie : “ Where an offence is com-
mitted by the doing of several acts at
separate times, they may be stated
to have been done at the same time.
Thus, in a prosecution under the Stat,
7 Geo. 3, c. 50, § 1, against secreting
letters containing any bank notes, &c.,
it appeared that a bank note had been
cut into two parts, that the parts had
been sent in separate letters at different
times, and secreted at different times
by the prisoner. The indictment al-
leged, that the defendant did secrete the
said letters then and there containing the
said bank note. The prisoner was con-
victed, and the judges, upon a case re-

served, were of opinion that the con-
viction was proper. Rex v. Moore, 2
Leach, 4th ed. 575. And in an indict-
ment for high treason, where the overt
act consists, in levying war, it may be
charged to have been committed in one
day. Fost.8.” 1 Stark. Crim. Pl. 2d
ed. 57. See also The State v. Moore,
11 Ire. 70; 1 Chit. Crim. Law, 225.

2 Ante, § 245.

3 Meanwhile I will refer to the opin-
ion of Metcalf, J. ‘in Wells v. Com-
monwealth, 12 Gray, 326, where plain-
ly the result arrived at, with most of
the observations, is in accordance with
the general doctrine. See also Com-
monwealth v. Gardner, 7 Gray, 494.
And see post, § 253.

4 2 Hawk. P. C.c. 25, § 79.

[183]
§ 251 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

The same doctrine is stated in other books;+ “ yet,” says
Archbold, “if it be an indictable offence to omit doing
an act at a particular time or at a particular place, an
indictment for it should undoubtedly have shown that it
was not done at that time or at that place.”? The dis-
tinction between non-feasance and misfeasance is not now
much regarded ;° and it is doubtful whether this old doc-
trine, uncertain in itself, and lacking judicial confirmation,
could be safely relied upon in a modern case.*

§ 250. It is not in general necessary that the indictment
should specify the hour, it need only mention the day.
“ But,” says Lord Hale, “where the time of the day is
material to ascertain the nature of the offence, it must
be expressed in the indictment.”® And the same rule
prevails with respect to the day of the week ; ordinarily
it need not be stated ; but, if an offence consists, for in-
stance, in doing a particular thing on Sunday, the indict-
ment must aver that it was Sunday on which it was done,
and not merely mention a day of the month which the
calendar shows to have fallen on Sunday. If the day of
the week is thus properly set out, the indictment will be
good though the day of the month mentioned in it falls
on some other day of the week. And, suppose it is Sunday,
proof of any Sunday will meet the requirements of the
law.?

§ 251. And the rule just stated is the general one; name-
ly, that it is not necessary to prove the offence to have
been committed on the day of the month and year speci-
fied in the indictment. Any day, before or after, within
the statute of limitations, is sufficient.2 Thus, where an

1 See 1 Chit. Crim. Law, 217; Com. 5 Rex v. Clarke, 1 Bulst. 203.

Dig. Indictment, G. 2; Buller, J., in 8 2 Hale P. C. 179.
Rex v. Hollond, 5 T. R. 607, 616; 7 The State v. Eskridge, 1 Swan,

1 Stark. Crim. Pl. 2d ed. 57. Tenn. 413; Frasier v. The State, 5
2 Archb. Pl. & Ev. 13th Lond. ed. Misso. 536 ; Megowan ». Common-
39. wealth, 2 Met. Ky. 3.
8 Crim. Law, I. § 401, 503, 520. 8 Commonwealth v. Alfred, 4 Dana,

4 And see, as to charging neglect, 496; Johnson v. United States, 3 Mc-
Commonwealth v. Sheffield, 11 Cush. Lean, 89 ; Oliver v. The State, 5 How.
178, Missis. 14; The State ». Newsom, 2

[184]
~

CHAP. XVIII.] AVERMENT OF TIME, ETC. § 252

indictment contained several counts, each alleging a dif-
ferent misdemeanor on the same day, the prosecutor was
permitted to give evidence of these misdemeanors as com-
mitted on different days.! Even in a case of high treason,
the jury, under instructions from the court, found the of-
fence to have been committed ten years anterior to the time
laid in the indictment.?

§ 252. The limit to this doctrine is, that, where from
the nature of the offence or the particular form of the
allegation time becomes material, it must be proved as
laid, or so nearly as laid as meets the particular provisions
of the law on which the indictment was framed.2 When,
therefore, the English statute of 6 Geo. 4, c. 108, § 52, made
it a misdemeanor to exhibit lights to persons at sea, at
certain hours of the day, between September and April,
and the indictment alleged, that the defendant, at the for-
bidden hour, on the ninth day of March in the year named,
exhibited the lights, it was held to be sufficient in allega-
tion ;* though plainly the proof must show the act to have
been committed within the forbidden time. From this case
we see, how the allegation and proof must together satisfy
the law; the following case will show how the proof must
satisfy any descriptive matter in the allegation. A person
was indicted for perjury “in swearing,” says the report,
“at a trial before the Circuit Court of the United States,
holden at Portsmouth on the 19th day of May, A. D. 1811.”
But it appeared by the record that “the Circuit Court was
first holden, in that year, on the 20th day of May, the
19th of May being Sunday.” Thereupon the variance was
held tb be fatal.®

Jones, N. C. 173; Medlock v. The
State, 18 Ark. 363; Loftus v. Com-
monwealth, 3 Grat. 631 ; The State 2.
Rundlett, 33 N. H. 70; The State v.
Gray, 39 Maine, 353; The State v.
Rollet, 6 Iowa, 535; Miazza v. The
State, 36 Missis. 613; Charnock’s case,
Holt, 301, 302; The State v. Baker, 34
Maine, 52; Cook v. The State, 11 Ga.
53.

16*

1 Rex v. Levy, 2 Stark. 458.

2 Vane’s case, J. Kel. 16.

31 Chit. Crim. Law, 224; ante,
§ 250; Commonwealth v. Alfred, 4
Dana, 496 ; Hubbard v. The State, 7
Ind. 160.

* Rex v. Brown, Moody & M. 163.
And see Rex v. Napper, 1 Moady, 44.

5 United States v. McNeal, 1 Gallis.

387.
[185]
§ 254

§ 253. In Bennett & Heard’s Digest of the Massachusetts
Reports, we have the following: “‘ Where the offence consists
of a series of acts which, taken together, constitute a criminal
practice or occupation, time enters into the essence of the
offence, fixes its identity, and is a material element in its de-
scription. It must be alleged with certainty and precision in
the indictment, and the evidence must be confined to acts
done within the time charged.” 1 In pursuance of this doc-
trine, where an indictment alleged that the defendant, at a
place named, “on the first day of January now last past, did
presume to be and was a common seller of wine, brandy,
rum,” &c., contrary to the provisions of the statute, the court
held it to be inadmissible to give evidence of any sale on any
day other than the one mentioned.” It is surely unnecessary
to say, that this decision does not accord with the rules which
are followed elsewhere, as explained in the previous sections of
this chapter. But, as already observed,? this class of questions
will be further considered in other parts of these volumes.

§ 254. Although the proof need not bring the actual com-
mission of the offence within the time laid in the indictment,
unless the law or the form of the allegation requires it to do
so in the particular case, still the court, in looking at the rec-
ord to determine its sufficiency, will in all cases assume the
time there stated to be the true time. Thus, an indictment
is ill if it lays the date of the offence on a day subsequent to
that on which it is found by the grand jury,> or on any other
impossible day ;® “ or,” says Starkie, ‘if it lay one and the

PLEADING AS RESPECTS THE INDICTMENT. [Boox IL.

1 Ben. & H. Dig. Indictment, par.
64 ; citing, Commonwealth v. Adams,
4 Gray, 27, 28; Commonwealth 2.
Pray, 13 Pick. 359, 364; Common-
wealth v. Briggs, 11 Met. 573; Com-
monwealth v. Elwell, 1 Gray, 463.

2 Commonwealth v. Elwell, supra.

8 Ante, § 248 and note.

* Commonwealth v. Hitchings, 5
Gray, 482, 485 ; Strawn v. The State,
14 Ark, 549; The State v. Bowling, 10
Humph. 52.

5 The State v. Pratt, 14 N. HL 456,

[186]

in which case, however, the indictment
being found on the eighteenth of Janu-
ary, and charging the offence as com-
mitted on that day, it was held to be
good, because the allegation was in the
past tense, and there is no legal reason
why a man should not be indicted on
the same day in which he commits the
criminal act; The State v. Sexton, 3
Hawks, 184.

6 Markley v. The State, 10 Misso.
291 ; People v. Aro, 6 Cal. 207.
CHAP. XVIII] AVERMENT OF TIME, ETO. § 256

same offence on different days, or on such a day as makes the
indictment repugnant to itself; it is void, and no defect of
this nature can be aided by verdict.” }

§ 255. And, if, taking all the allegations in an indictment
together, the time is so laid as to show the whole to be ab-
surd, or to disclose no crime, the indictment will be adjudged
ill. Thus, judgment was arrested on an indictment for com-
pounding a felony, where the felony was laid on a day subse-
quent in date to that on which it was charged to have been
compounded, although charged to have been compounded
“afterwards.” The court observed: “ The indictment is ab-
surd. It is impossible that the defendant could be guilty of
the offence as charged.” Likewise an indictment for re-
sisting process is fatally defective, if the time of the commis-
sion of the offence appears by it to have been subsequent to
the return day of the process.? So, in an older case, judg-
ment was arrested in an indictment for a rescue, “ because
the arrest was not laid to be before return of writ.” 4

§ 256. From this principle it might seem to follow, that, if,
taking the time alleged in the indictment to be the true time,
the offence is barred by the statute of limitations, the indict-
ment will be adjudged insufficient, unless it contains also
some allegation showing the case to come within an excep-
tion in the statute. Some courts have so held.6 And if the
statute is so general that there cannot be an exception to its
operation in the particular case, plainly the indictment is bad
if the offence appears on the face of it to be barred by the
statute. But the better doctrine seems also to be, that the

1 1 Stark. Crim. Pl. 2d ed. 60.

2 The State v Dandy, 1 Brev. 395.
There is an Indiana decision which
seems contrary, in principle, to this. It
was held that an indictment for un-
lawfully winning, &c., by betting on an
election, might be good, though the time
when the bet was alleged to have been
made was subsequent to the date of the
election. ‘The day named in the in-
dictment,” it was observed, “is not
material, provided the time stated be

previous to the finding of the indict-
ment.” The State v. Little, 6 Blackf.
267.

3 McGehee v. The State, 26 Ala. 154.

4 Rex v. Hoskins, 12 Mod. 323.

5 McLane v. The State, 4 Ga. 335 ;
People v. Miller, 12 Cal. 291.

® Anthony v. The State, 4 Humph.
83; The State v. Rust, 8 Blackf. 195 ;
Shelton v. The State, 1 Stew. & P.
208; The State v. Hobbs, 39 Maine,
212.

[187]
§ 256

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK IL

prosecutor is not bound to set out in an indictment such facts
as he may rely on in avoidance of the more general provisions
of the statute ; therefore, though the offence appears by the
general provisions to be barred, yet, if in truth it is not by
reason of some exception, he may state the true time, and
the indictment will not be held to be bad on its face.1

1 Thus, in New York it was decided,
that, though an indictment charge the
crime to have been committed so long
before the finding as renders it appar-
ently barred by the statute of limita-
tions, this is not ground for arresting
judgment. “If,” said Spencer, C. J.
“an offender be not usually resident in
this State, our statute does not run in
his favor. Non constat, on this mo-
tion, but that on its appearing in evi-
dence that the crime was perpetrated
more than three years previous to the in-
dictment being found, and on this being
objected, as it might be, on not guilty, the
prosecution then answered by proving
that the prisoners were within the ex-
ception.” People v. Santvoord, 9 Cow.
655, 660. In Mississippi it was held,
that an indictment alleging the offence
to have been committed by the prisoner
eight hundred years before its date is
bad ; Smith, J. observing: “ An alle-
gation in an indictment which substan-
tially contradicts a known law of na-
ture, regulating the duration of human
life, is clearly defective, and cannot con-
stitute the legitimate foundation of a
judgment of acourt, All knowledge
of the laws of nature which govern the
material world is primarily derived
from experience, and our belief in their
permanency rests upon the same foun-
dation. An allegation which presup-
poses the life of the accused to have
endured for upwards of eight hundred
years, as it contradicts the experience of
the whole world, must be considered
as impossible. Again, an offence com-
mitted on that day, though not barred
by any statute of limitations, is not an
offence against the State of Mississip-

[188]

pi” Serpentine v. The State, 1 How.
Missis. 256, 260. 1t was held in
Maine, that judgment against a de-
fendant under a penal statute, rendered
on a complaint made after the expirar
tion of two years from the time when
the offence was alleged in the complaint
to have been committed, the two years
being the period fixed by the statute of
limitations for such cases, will be ar-
rested. And this the court deemed to
be the general doctrine ; “ unless,” in
the words of Shepley, C. J. “ the stat-
ute contains an exception preventing
the operation of it upon a certain class
of persons ; such, for example, as
those out of the State. In such case,
the judgment cannot be arrested ; for
there may have been proof that the
person convicted came within the ex-
ception. But if the complaint or in-
dictment alleges the offence to have
been committed more than two years
before, and also that it has been com-
mitted within two years of the time of
filing the complaint, or finding the in-
dictment, and the accused be convicted,
judgment cannot be arrested. For the
conviction may have been upon proof
of an offence within two years. The
principle upon which a judgment is
arrested, is, that all which has been
alleged in the complaint or indictment
may be true, and may have been proved,
and yet the person convicted may not
have committed any offence.” The
State v. Hobbs, 39 Maine, 212, 216.
See also Brock v. The State, 22 Ga.
98 ; United States v. Smith, 4 Day,
121; The State v. Bowling, 10 Humph.
52; Clark v. The State, 12 Ga. 350;
People v. Miller, 12 Cal. 291 ; Riggs
CHAP. XVIII]

AVERMENT OF TIME, ETC. § 257

§ 257. What has been thus far said, assumes, that the of.
fence is not laid under what in the law of pleading is called
a videlicet, or scilicet.1 This is a form of alleging time and
place and some other things, not much employed at the pres-
ent day in pleadings, because it is attended with few practi-
cal advantages to the pleader. It will be sufficient to add
here what is said on the subject by Chitty in his Criminal

aw,” with his notes, and some notes here originally append-
ed. ‘In setting forth the time when the facts occurred, as
well as place, number, quantity, &., it is very usual, in crim-
inal as well as civil proceedings, to introduce the statement
under what is termed a videlicet, or scilicet, as, ‘ that after-
wards, to wit, &c., at, &c.,’ the defendant did, &c., or a fact
occurred, which it is thought proper to mention. Lord Ho-
bart, speaking of a videlicet, says,’ ‘ that its use is to particu-
larize that which was before general, or to explain that which
was before doubtful or obscure; that it must not be contrary
to the premises, and neither increase nor diminish, but that
it may work a restriction where the former words were not
express and special, but so indifferent that they might receive
such a restriction without apparent injury.’* Respecting the

v. The State, 30 Missis. 635 ; Unit-
ed States v. Ballard, 3 McLean, 469 ;
Johnson v. United States, 3 McLean,
89 ; Commonwealth v. Ruffner, 4 Ca-
sey, 259. According to an English
case, where a statute makes an offence
committed after a given day triable in
the county in which the party is appre-
hended, and authorizes laying it as if
committed in that county, and does not
vary the nature and character of the
offence, there is no objection to laying
the day in the indictment as before the
day which the statute mentions, if the
offence were in fact committed after
that day. Rex v. Treharne, 1 Moody,
298. In Iowa, a defendant being charg-
ed with selling liquors by the glass, on
a day mentioned in October, pleaded
guilty. It was thereupon held, that,
though the time need not be proved
as laid, yet the confession contained in

his plea must be taken to be of the of-
fence as committed on that day ; there-
fore, since the court had jurisdiction
only over like offences committed be-
fore July, it had no jurisdiction over
this indictment and plea, the time of
the actual commission of the offence
not being otherwise shown. The State
v. Rollet, 6 Iowa, 535.

1 See, for a full explanation of its
use in pleading, Gould Pl. c. 3,§ 35-41.

2 1 Chit. Crim. Law, 226, 227.

3 Hob. 172; 5 East, 252. See also
2 Wils. 335. ‘

* According to a Connecticut case,
the effect of a videlicet, where general
words are used before, and specific ones
after, is to restrict the general terms to
the things which are specified. Thus,
where a complaint and warrant, under
the “act for the suppression of intem-
perance,” designated for seizure “ cer-

[189]
a

§ 257 [BooK @,

use of this mode of statement, it has been said, that, where
the time when a fact happened is immaterial, and it might
as well have happened at another day, there, if alleged under
a scilicet, it is absolutely nugatory, and therefore, not travers.
able ; and, if it be repugnant to the premises, it will wot vi-
tiate, but the scilicet itself will be rejected as superfluous and
void ;} but that, where the precise time, &c., is material and
enters into the substance of the description of the offence,
there the time, &c., though laid under a scilicet, is conclusive
and traversable,? and it will be intended to be the true time,
and no other ; and, if impossible or repugnant to the premi-
ses, it will vitiate.2 Hither the allegation must exactly cor-
respond with the fact, or it may vary ; if the former, it will
be laid with a scilicet, which may be rejected ; and, if the
latter, though the scilicet were omitted, evidence of a differ-
ent day, quantity, or place, may be admitted.* Thus in in-
dictments for extortion, or taking a greater sum for broker-
age than is allowed by act of parliament, though the sum be
stated without a videlicet, it is not necessary to prove it with
precision.© And, on the other hand, where the true sum
must be set forth, it will not relieve the prosecutor from strict
proof, though he allege a different sum under a scilicet.6

PLEADING AS RESPECTS THE INDICTMENT.

tain intoxicating liquors ; to wit, several
easks of French brandy, containing
twenty-five gallons, more or less; sey;
eral casks of gin, containing twenty-
five gallons, more or less; and sey-
eral casks of intoxicating wines, con-
taining twenty-five gallons, more or
less ;” it was held, that an officer serving
the warrant was not justified by it in
seizing any “ intoxicating liquors ”
other than “French brandy,” “ gin,”
and ‘intoxicating wines ”’; in other
words, that he was a trespasser when
he seized under the warrant, rum, cider-
brandy, and pale brandy. Mallett v.
Stevenson, 26 Conn. 428,

1 The State v. Haney, 1 Hawks, 460.
And see McDade v. The State, 20 Ala.
81.

* In a complaint charging a misde-
meanor, the defendant is not precluded

[190]

from traversing any material allegation,
though made under a videlicet. The
State v. Phinney, 32 Maine, 439,

8 1 W. BI. 495; 2 Saund. 291, note;
1 Saund. 169; 1 Stra. 233; 2 Wils,
332; 6 T. R. 462; 3 Bur. 1730; 4 T.
R. 590; 4 Esp. 152; 5T.R. 71; 3 T.
R. 68; 2B. & P. 118; 2 Camp. 231 ; 5
East, 244. The American editors re-
fer here also to the following : Jansen
v. Ostrander, 1 Cow. 670, 676 ; Gleason
v. MeVickar, 7 Cow. 42, 43; Hastings
v. Lovering, 2 Pick. 2d ed. 214, 223,
note; Paine v. Fox, 16 Mass. 129, 133.

4 Stark. Crim. Pl. 2d ed. 253, 2543
and see 1 Chit. Pl. 4th ed. 276, note.
276, note ; 1 Esp. 285.

56 T. R. 265; 1 Chit. Pl. 4th ed.

686 T. R. 462; 4 T. R. 590 3 1 Chit,
Pl. 4th ed. 276, note.
CHAP. XVIII] AVERMENT OF TIME, ETC. § 258
There are, however, authorities which afford an inference that
the adoption of a scilicet will, in the description of a contract,
excuse the party from strict proof, when, if it were omitted,
it would be otherwise.” !

§ 258. Where the time and place have been sufficiently
set out in the indictment, if then it becomes necessary to re
peat them, this may be done, and it usually is, by the use of
the words “ then and there.” There are some nice questions
as to when an indictment will be defective if it omits to con-
nect these words with a material allegation following the first,?
and it will be useful here to refer only to the general doc-
trine, leaving the minuter matters to be pointed out in con-
nection with the several indictments. What Chitty ® says on
this subject with his notes, and some notes here originally
appended, is the following: “ Time as well as place ought, in
general, not merely to be mentioned at the beginning of the
indictment, but to be repeated to every issuable and triable
fact ;* for wherever a venue is necessary, time should be
united with it.6 But after the time has been once named
with certainty, it is afterwards sufficient to refer to it by the
words ‘ then and there,’ which have the same effect as if the
day and year were actually repeated. But the mere con-
junction ‘and,’ without adding ‘ then and there,’ will in many
cases be insufficient. Thus, in an indictment for robbery,
these words must be connected with the stroke, or the rob-
bery, and not merely with the assault;’ and in a case of
murder, it is not sufficient to allege that the defendant on a

137.R.67; 3M. &S. 173.

2 See ante, § 238.

3 1 Chit. Crim. Law, 219 - 222.

4 The State v. La Bore, 26 Vt. 765;
Rex v. Hollond, 5 T. R. 607; The
State v. Bacon, 7 Vt. 219, 222. But
these words need not precede the con-
clusion drawn from the facts. The
‘State ». Johnson, Walk. Missis. 392.
In an indictment for wounding, the time
and place of the assault and stroke were
formally laid ; but no venue was alleged
as to the wounding, the result of the
stroke. And this was held to be suffi-

cient. The State v. Freeman, 21 Misso.
481; The State v. Bailey, 21 Misso.
484,

55 T. R. 620; Dyer, 68, 69; Com.
Dig. Indict. G. 2; Burn Just. Indict-
ment; Williams Just. Indictment, IV. ;
14 East, 300, 301.

6 2 Hale P. C. 178; 2 Stra. 901;
Keilw. 100 ; 2 Hawk. P. C. ¢. 25, § 78,
c. 23, § 88; Bac. Ab. Indictment, G.
4; Williams Just. Indictment, IV. ;
Comyns, 430.

71d. ibid; 2 Hale P. ©. 178; 2
Hawk. P. C. ¢. 28, § 88; Cro. Eliz. 739,

[191]
§ 258 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

certain day made an assault, and struck the party killed, but
the words ‘ then and there’ must be introduced before the
averment of the stroke ;! and the word ‘immediately’ is too
uncertain an allegation when time constitutes part of the of-
fence ; and, therefore, where, on an indictment for a highway
robbery, the special verdict found the forcible assault, and
then in a distinct sentence that the prisoners ‘ then and there
immediately’ took up the prosecutor’s money, this was held
to be insufficient to fix the prisoners with the offence of rob-
bery, because the word ‘immediately ’ has great latitude, and
is not of any determinate signification, and is frequently used
to import ‘ as soon as it conveniently could be done.’? So it
is said, that the word being (existens) will, unless necessa-
rily connected with some other matter, relate to the time of
the indictment rather than of the offence ; and, therefore, an
indictment for a forcible entry on land, being the prosecu-
tor’s freehold, without saying ‘ then being,’ was held insuffi-
cient.2 But if the indictment allege, that the defendant felo-
niously and of malice aforethought made an assault, and, with
a certain sword, &c., ‘then and there’ struck, the previous
omission will not be material ; for the words ‘ feloniously and
of malice aforethought,’ previously connected with the as-

sault, are by the words ‘ then
to the murder.* So where in

12 Hale P. C. 178; Dyer, 69; 2
Hawk. P. C. ¢.23, § 88; Cro. C. C. 35.

2 Cas. temp. Hardw. 114, 115;
Comyns, 480; 1 Leach, 529; Doug.
212, Under like circumstances the
word “instantly ” has been deemed also
to be inadequate. Thus, where the time
of the stroke was well laid, and it was
added that the person beat “ instantly
did die,” this, in an indictment for a
felonious homicide, was held not to be
sufficient. Said Napton, J.: “ Here
the word ‘instantly’ seems designed
to supply the place of ‘then and there’ ;
and the attorney-general insists, that,
both in its popular and proper legal ac-
ceptation, it will embrace everything

[192]

and there’ sufficiently applied
an indictment for poisoning, it

which is conveyed by those words.
This may be true so far as time is con-
cerned ; but, in capital cases, it has been
thought expedient to require greater
strictness, and it would be difficult to
foresee to what extent innovations
would go, if we lose sight of the es-
tablished precedents, so far as they fix
the form of material averments.” Les-
ter v. The State, 9 Misso. 658, 659.

® Bac. Ab. Indictment, G. 1; Cro.
Jac. 6389; 2 Ld. Raym. 1467, 1468;
2 Rol. Rep. 225; Com. Dig. Indict-
ment, G. 2.

44 Co. 416; Dyer 69a; Godb. 65,
66 ; 1 East. P. C. 346,
CHAP. XVIII] AVERMENT OF TIME, ETC. § 259

was alleged that the prisoner did ‘ wilfully, feloniously, and
of malice aforethought,’ mix poison with other ingredients,
with intent that the same should be afterwards eaten by the
deceased ; and with the intent aforesaid did ‘then and there’
deliver the same to the deceased ; it was holden sufficient, by
all the judges, without adding the words ‘feloniously and of
malice aforethought,’ to the allegation of the delivery of the
poison.! And in some cases the words ‘then and there’ are
more certain than even a repetition of the day and year; for
the latter will not be sufficient where, in order to complete
the offence, connected acts must be shown to be done at the
same time, but the terms ‘then and there’ must be adopted.
Thus, an indictment upon the 6 Geo. 1, c. 28, for feloniously
assaulting a person with intent to spoil his clothes, where the
assault and spoiling must be shown to be continuous, the rep-
etition of the day and place is insufficient, because it does not
appear that the acts were not on different hours of the day ;
but the words ‘ then and there’ fix them to have been effect-
ed together.”

§ 259. “It seems, however, that the nicety which re-
quires these words to be cautiously inserted to every ma-
terial allegation, is not so strictly observed in indictments
for inferior offences, as in cases where the life of the pris-
oner is in danger. Thus, where a mere trespass is charged,
it is sufficient to state that the defendant, at a certain place
and time, made an assault on the prosecutor, and beat him,
without inserting ‘then and there’; because the time and
place named in the beginning refer to all the subsequent
averments.* So also, in an indictment for a forcible entry,
it is enough to state that the defendant entered and dis-
possessed, without any second averment of time or venue.®
But, in such case, the place unlawfully entered must be

11 East. P. C. 346. prosecution. Thayer v. The State, 11

2 1 Leach, 529; Comyns, 480. Ind. 287.

3 9 Hale P.C. 178; Burn Just. In- 4 Id. ibid; Commonwealth v. Bugbee,
dictment ; Cro. Jac. 41, 345; Dyer, 69. 4 Gray, 206 ; Commonwealth 2. Doher-
Under the Indiana Statute, the venue ty, 10 Cush. 52, 55.
need not be repeated to every material 5 Cro. Jac. 41.
allegation in an affidavit to support a

VOL. I. 17 [193]
§ 260 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

stated to have been ‘then and there’ the property of the
party complaining; and the omission will be fatal.” 1

§ 260. Where more times than one have been mentioned
in the indictment, it is not sufficient in an allegation fol-
lowing to use the words “then and there’; because it is
uncertain to which of the times previously named they
refer.?

1 Cro. Jac. 214. Jane v. The State, 3 Misso. 61. And
2 The State v. Hayes, 24 Misso.358 ; see post, § 272.
[194]
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 262

CHAPTER XIX.

THE SUBSTANTIAL AVERMENTS OF THE INDICTMENT.

Sgor. 261-266. Introduction, and some Formal Things considered.
267-276. Objects to be secured in setting out the Offence.
277-287. Information, to enable the Prisoner to defend.
288-292. To enable the Court to order Course of the Trial.
293-295. To enable the Court to determine the Sentence.

296. To enable the Prisoner to plead Former Jeopardy.
297-303. Difference of Allegation where Thing known and unknown.
304-307. Difference where Matter direct and where incidental.
308-312. Different Forms of setting out Written or Spoken Words.

313. How, when the Words were in a Foreign Language.
314-332. Ownership, Value, Person Injured, and the like.

333-340. Disjunctive and Conjunctive Allegations.

§ 261. In a series of chapters here closed, we have con-
sidered what may be termed the formal parts of the indict-
ment. Some of these relate more or less to the substance
of the charge, and all of them are important to be under-
stood by the pleader. If, therefore, we now turn to the
part which relates more specifically to the particular offence,
it is not one bringing to him greater difficulties, or requiring
a graver consideration, than those to which we have now
bidden adieu. Yet to this part, wherein the substance of
the particular crime is in due legal dress set out, there is
no good-by, until we come to the close of the volumes them-
selves ; for in the present chapter we shall take of it only
a general view, leaving its minuter consideration for those
future chapters, in which we shall treat of the procedure
in the several specific offences.

§ 262. Connected with the setting out of the particular
offence itself, there are to be found in the books some aver-
ments, which, though apparently substantial, are yet in
truth both formal and unnecessary. Of this sort “ is,” in the

[195]
§ 263 PLEADING AS RESPECTS THE INDICTMENT. [BOOK UI.

words of Chitty, “the inducement which, in cases of
treason and felony, usually precedes the statement of the
crime, that the prisoner, ‘ not having the fear of God before
his eyes, but being moved and seduced by the instigation
of the devil,’ perpetrated the crime for which he is indicted ;
for there is no authority to show that the omission would
be material.” 1 This allegation seems to have been intro-
duced into indictments for high crimes, in order to make
the accusation and fact more nearly correspond in point
of form; for, as Cotton Mather once observed, speaking
of what he and others of his time believed to be true:
“ When men do commit a crime for which they are to. be
indicted, they are usually moved by the instigation of the
devil.” 2 Yet we have seen,’ that, though one commits a
crime instigated by another, the instigation furnishes him
no excuse; his act is in law to be regarded in the same
way as if he had proceeded self-moved ; whence it follows,
that, should we admit that the devil moves the criminal
person to do the forbidden deed, still this moving, being an
immaterial thing, need not be set out in the indictment.
And in the United States, probably also in England, this
clause is not now generally inserted.

§ 263. Chitty continues : “ The words ‘ with force and
arms,’ anciently vi e¢ armis, were, by the common law,
necessary in indictments for offences which amount to an
actual disturbance of the peace; or consist, in any way,
of acts of violence;* but it seems to be the better opin-
ion, that they were never necessary where the offence con-
sisted of a cheat, or non-feasance, or a mere consequential
injury’ .... But the Stat. 37 Hen. 8, c. 8, reciting, that
several indictments had been deemed void for want of
these words, when in fact no such weapons had been em-
ployed, enacted, ‘that the words vi et armis, videlicet, cum

11 Chit. Crim. Law, 239, 240. 187; 2 Hawk. P. C. c. 25, § 90; Bac.
2 Wonders of the Invisible World, Ab. Indictment, C. 6; Cro. C. C. 42.
Lond. ed. of 1862, p. 54. 57T. R. 4,5; 1 Keb. 652; Poph.
8 Crim. Law, I. § 430 et seq. 206 ; 2 Hawk. P. C. c. 25, § 90; Bae.

4 Cro. Jac. 472, 473 ; 2 Hale P.C. Ab. Indictment, G. 1.
[196]
CHAP. XIX. } THE SUBSTANTIAL AVERMENTS. § 264

baculis, cultellis, arcubus et sagittis,’ shall not of necessi-
ty be put in any indictment or inquisition. Upon the
construction of this statute there seems to have been en-
tertained very great doubts, whether the whole of the
terms were intended to be abolished in all indictments,
or whether the words following the videlicet were alone
excluded. Many indictments for trespass, and other wrongs
accompanied with violence, have been deemed insufficient
for want of thé words ‘ with force and arms’ ;1 and, on the
other hand, the court has frequently refused to quash the
proceedings where they have been omitted ;? and the last
seems to be the better opinion, for otherwise the terms of
the statute appear to be destitute of meaning. It seems
to be generally agreed, that, where there are any other
words implying force, as, in an indictment for a rescue,
the word ‘rescued,’ the omission of vi e¢ armis is sufficiently
supplied. But it is at all times safe and proper to insert
them, whenever the offence is attended with an actual or
constructive force, or affects the interests of the public.” *
In the United States, the words “ with force and arms”
have been often used in indictments. There are cases in
which they have been held not to be necessary ;° and in
probably most of the States they have been made unnecessary
by expresss statutory provisions. It is doubtful whether in
any of the States these or the other words mentioned in
this section need now be employed. ®

§ 264. Chitty’ proceeds: “ The term ‘unlawfully,’ which
is frequently used in the description of the offence, is unne-
cessary wherever the crime existed at common law and is
manifestly illegal. So it has been adjudged that it need not

12 Lev. 221; 1 Sid. 140; 1 Bulst.
205; 1 Keb. 101; 2 Keb. 154.

21 Lev. 126; 2 Bulst. 208; 3 P.
Wins. 464, 498.

8 Cro. Jac. 345; 2 Bulst. 208 ; 3 P.
Wns. 464; 2 Hawk. P. C. c. 25, § 90,
note 16; Bac. Ab. Indictment, G. 1.

4 Cro. Car. 377, 378; 2 Hawk. P.
C. c. 25, § 90 ; Bac. Ab. Indictment, G.
1; Burn Just. Indictment, TX. As to

17*

the words “force and arms,” &c., see
4 Bur. 2557, 2558 et al. And see 1
Saund. Wms. Ed. 10, note, 81, note.

5 The State v. Duncan, 6 Ire. 236 ;
Taylor v. The State, 6 Humph. 285 ;
The State v. Elliott, 7 Blackf. 280.

8 See ante, § 158 and note.

7 1 Chit. Crim. Law, 241.

’ 9 Hawk. P. C. c. 25, § 96; Bae.
Ab. Indictment, G. 1; Cro. C. C. 38.

[197]
§ 266 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL
\

be used in an indictment for a riot, because the illegality is
sufficiently apparent without being averred.1 But if a stat-
ute, in describing the offence which it creates, uses the word,
the indictment founded on the act will be bad if it be omit-
ted;* and it is, in general, best to resort to it, especially as
it precludes all /egal cause of excuse for the crime.’

§ 265. “The word ‘knowingly,’ or ‘well knowing,’ will
supply the place of a positive averment that the defendant
knew the facts subsequently stated.4 It is absolutely neces-
sary to constitute guilt, as in indictments for uttering forged
tokens, or other attempts to defraud, or for receiving stolen
goods, and offences of a similar description ; but, if notice or
knowledge be unnecessarily stated, the allegation may be re-
jected as surplusage.”? 6

§ 266. Leaving now this class of questions, let us proceed
with the subject of the present chapter in the following order:
I. The Objects which are to be secured by the Pleader in set-
ting out the Crime in the Indictment; II. The Communica-
tion to the Prisoner of Information which will enable him
to make his Defence ; III. The Communication to tlie Court
of what will direct it how to order the Course of the Trial ;
IV. The Information to guide the Court in pronouncing the
Sentence of the Law against the Prisoner ; V. The Statement
of Facts which will enable the Prisoner to plead the Proceed-
ing in bar of a subsequent Indictment; VI. The Difference
in the Allegation where a particular thing is known to the
Grand Jury, and where it is not; VII. The Difference in the
Allegation where a particular Matter comes in incidentally,
and where it is the subject of a direct charge ; VIII. The dif-
ferent Forms of setting out Written Instruments and Spoken
Words ; 1X. The Form of the Allegation where the Words
were written or spoken in a foreign language; X. The Alle-

12 Rol. Ab. 82; 2 Hawk. P. C. ¢. 3 See 4 M.& S. 274.
25, § 96; Bac. Ab. Indictment, G. 1; 42 Stra. 904; Com. Dig. Indict-

Cro. C. C. 43. ment, G.6. See Russ & Ry. 317; 1

29 Hawk. P. C. c. 25, §96; Bac. Stark, 390.
Ab. Indictment, G. 1; Cro. C. C. 43. 5 2 Hast, 452,
Sed quere, see 2 March. 362.

[198]
¢
CHAP. xIx.] THE SUBSTANTIAL AVERMENTS.

§ 268

gations of Ownership, of Value, of the Person injured, and
the like ; XI. Disjunctive and conjunctive Allegations.

I. The Objects to be secured by the Pleader in setting out
the Crime.

§ 267. We find stated in the books of the law, in general
terms, the objects which are to be secured by the allegations
in the indictment; and, though such general views will not
stand in the place of the minuter examination, it will be help-
ful for us to look at some of them here. Said De Grey, C.
J.: “The charge must contain such a description of the
crime, that the defendant may know what crime it is which
he is called upon to answer ; that the jury may appear to be
warranted in their conclusion of ‘guilty’ or ‘not guilty’
upon the premises delivered to them; and that the court may
see such a definite crime, that they may apply the punishment
which the law prescribes.””1 Mr. Starkie? has somewhat en-
larged this list of objects, drawing his matter from the older
books, as follows:

§ 268. “It is necessary to specify, on the face of the in-
dictment, the criminal nature and degree of the offence,
which are conclusions of law from the facts; and also the
particular facts and circumstances which render the defend-
ant guilty of that offence.? 1st. In order to identify the
charge, lest the grand jury should find a bill for one offence,
and the defendant be put upon his trial in chief for another,
without any authority. And this is further necessary,* 2dly.
That the defendant’s conviction or acquittal may enure to his
subsequent protection, should he be again questioned on the
same grounds. The offence, therefore, should be defined
by such circumstances as will, in such case, enable him to

1 Rex v. Horne, Cowp. 672, 682, know what law is to be derived from

the record.

683. “Mr. Adam argued, that three
things ought to concur in every crim-
inal proceeding ; Ist. That the party
accused should be apprised of the
charge he is to defend; 2dly. That
the court might know what judgment
was to be pronounced according to
law ; and 3dly. That posterity might

ad

These are general prop-
ositions to which I assent.” Lord
Kenyon, C. J. in Rex v. Hollond, 5
T. RB. 607, 623.

2 1 Stark. Crim. Pl. 2d ed. 68. ®

8 See ante, § 49, 52-57,

* Staunf. 181.

[199]
§ 269 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

plead a previous conviction or acquittal of the same offence.!
ddly. To warrant the court in granting or refusing any par-
ticular right or indulgence which the defendant claims as in-
cident to the nature of the case.2 4thly. To enable the de-
fendant to prepare for his defence ® in particular cases, and to
plead in all;* or, if he prefer it, to submit to the court by
demurrer, whether the facts alleged (supposing them to be
true) so support the conclusion in law as to render it neces-
sary for him to make any answer to the charge. dthly. Fi-
nally and chiefly, to enable the court, looking at the record
after conviction, to decide whether the facts charged are suf-
ficient to support a conviction of the particular crime,® and
to warrant their judgment; and also, in some instances, to
guide them in the infliction of a proportionate measure of
punishment upon the offender.” 6

§ 269. That the indictment may serve these several ends,
it must be in words clear, direct, and not argumentative.’
If, for example, instead of charging the defendant with doing
the forbidden thing, it says he has “ taken upon himself to”
do it, the allegation will be insufficient ; for ‘“‘ one may take
upon himself to do an act in futuro, or one which he may be
actually unable to perform.” *® It “ought,’’ in the language of
Lord Ellenborough, C. J., “ to contain a complete description
of such facts and circumstances as constitute the crime, with-
out inconsistency or repugnancy.”® Except where technical
phrases are used, its terms and expressions are to be under-
stood in the common and popular sense, or at least according
to their plain and natural import." And while it should set
out all the matter which by law enters into the offence, it
need contain nothing more. Suppose a crime is made more

1 Staunf. 181. 303 ; Rex ». Tucker, 1 Ld. Raym. 1;
2 Staunf. 181. Commonwealth v. Dudley, 6 Leigh, 613.
* Rex v. Hollond, 5 T. R. 607, 623; 8 The State v. Perry, 2 Bailey, 17.
Fost. 194 ; ante, § 267 and note. 9 Rex v. Stevens, 5 East, 244, 259.
4 3 Inst. 41. 1 Ante, 58 ; 1 Chit. Crim. Law, 172.
5 Cowp. 672. 11 Commonwealth ». Wentz, 1 Ashm.
@® Cowp. 672; 5 T. R. 628. 269; Rex v. Stevens, supra; People

7 Rex v Knight, 1 Salk. 875; Rex vv. Littlefield, 5 Cal. 355.
v. Gibbs, 8 Mod. 58; Reg. v. Dan- 2 The State v. Ballard, 2 Murph.
iel, Holt, 347 ; Anonymous, Comb. 186.

[200 ]
CHAP. XIX. ] THE SUBSTANTIAL AVERMENTS. § 271

highly penal when committed on a person of a particular
class than on others, the indictment need not necessarily spe-
cify the class; yet, if it does not, only the lower degree of
punishment can be inflicted.t

§ 270. It should be so drawn as to leave no doubt concern-
ing what is meant. Still, if it is not so drawn, it will some-
times pass, by the aid of interpretation; sometimes it will
not. ‘It is laid down,” says Mr. Chitty, “that, where a
matter is capable of different meanings, that will be taken by
the court which will support the proceedings, not that which
would defeat them. But it must be clearly capable of two
significations ; for the court cannot, to support the indict-
ment, arbitrarily give it a meaning with which the use, hab-
its, or understanding of mankind would plainly disagree.
Where, however, it is plainly ambiguous, it does not seem to
clash with any rule of construction applied even to criminal
proceedings, to construe it in that sense in which the party
framing the charge must be understood to have used it, if he
intended his accusation to be consistent.” 2

§ 271. If the various expressions are in material particu-
lars repugnant ® to one another, so that what is meant cannot
be ascertained, the indictment will be insufficient. It is not
easy to lay down any rules which may be taken as safe guides
to determine what repugnancy will be fatal and what will not.
The statements of Mr. Chitty ® will be suggestive, but his words
must not be taken in too absolute a sense. He says: *‘ Above
all, it is essential that the charge should not be repugnant or
inconsistent with itself, for the law will not admit of absurdi-
ty and contradiction in legal proceedings. Thus, if an in-
dictment charge the defendant with having forged a certain
writing, whereby one person was bound to another, the whole
will be vicious; for it is impossible any one can be bound by

1 The State v. Fielding, 32 Maine, * The State » Hand, 1 Eng. 165.
585. 5 1 Chit. Crim. Law, 231.

21 Chit. Crim. Law, 281, referring 6 2 Hawk. P. C. c. 25, § 62; Bac.
to the exposition of the matter by Ab. Indictment, G.1; Burn Just. In-
Lord Ellenborough, C. J., in Rex v. dictment, IX ; Cro. C. C. 41; 2
Stevens, 5 East, 244, 257. Leach, 660.

8 Ante, § 269. [201]
§ 272 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

a forgery... So, if it state that the defendant disseised the
prosecutor of land, when it appears that he had no freehold
whereby he could be disseised ; or that the former entered
peaceably upon the latter, and then and there forcibly dis-
seised him; or charge the prisoner with feloniously cutting
down trees, which is only a trespass ; the indictment will be
insufficient.2 So an indictment for forging a bill of exchange,
stating it as directed to John King, by the name and addition
of John Ring, Esq. will be defective, and cannot be cured by
the evidence.? But where the contradictory or repugnant
expressions do not enter into the substance of the offence,
and the indictment will be good without them, they may be
‘rejected as surplusage.t It is also laid down, that, where
the repugnant matter is inconsistent with any preceding
averment, it may be rejected as superfluous ;° but, where
the objectionable words are not contradicted by anything
which goes before, but are merely irreconcilable with some
subsequent allegation, they cannot be thus rendered neu-
tral.’ 6

§ 272. It is no objection to an indictment, especially in arrest
of judgment, that it is inartificially drawn, if it meets the
substantial requirements of the law.7 And Chitty observes,
that, where the sense is clear, nice objections ought not to be
regarded.6 “It seems,” he adds, “that a sentence to a
certain extent being ungrammatically constructed, in de-
scribing the offence, is not a sufficient objection on which
judgment will be arrested, if, from the whole tenor of the
charge, the statement be sufficiently clear to furnish an in-
telligihle description of the manner of committing the of-
fence.!? The word ‘aforesaid,’ in general, refers to the last
antecedent, but not so invariably as the word ‘ same,’ which

1 Jd. ibid.; 3 Mod. 104; 2 Show. 460. 6 5 Hast. 254, 255.

2 Aleyn, 50; 2 Hawk. P. C. c. 25, 7 Morgan v. The State, 138 Sm. & M.
§ 62; Bac. Ab. Indictment, G. 1. 242; Thompson v. People, 3 Parker

82 Leach, 590. C. C. 208, 215.

* As to repugnant matter, and sur- 8 1 Chit. Crim. Law, 173.
plusage in general, see 5 East, 254, and ® And see ante, § 60, 61.
-1 Chit. PL. 4th ed. 196, 210, 211. 19 13 Price, 172; 1 Moody, 3; 8.0.9

5 Gilb. C. P. 181, 182; Co. Lit. Price, 497.
303 b.; 3 East, 142.

[202]
CHAP. XIX.]

THE SUBSTANTIAL AVERMENTS. § 278

is more explicit. And matter stated in a parenthesis saves
the rule of grammar, that the words ‘ said’ and ‘ aforesaid’
refer to the last antecedent. And it is not necessary to
repeat the nominative case to all the allegations in one
continuing sentence.”? It has also been laid down, that
words of reference, such as “ there,’ and “said,” in an
indictment, will not be referred to the last antecedent, if
the sense requires them to be referred to some prior one.’
So the word “until” may, therefore, be construed either
exclusive or inclusive of the day to which it is applied,
according to the context and subject-matter. Thus where
the Court can see the way clear to put upon the indictment
such a construction as will leave it sensible and good, this
will be done; but, in one case, where two felonies had
been set out, and then the words “ the felony aforesaid ”
were used, referring to one of them, but it was uncertain
which, the judges held the indictment to be insufficient.6

§ 273. The indictment need not go to extremes in the
amount of allegation which it contains. Thus, in an in-
dictment against a married woman, it is not necessary to
aver that she was not acting under coercion of her hus-
band. And, “in general,” says Chitty,’ “ all matters of
defence must come from the defendant, and need not be

111 East, 513.

24 Harg. St. Tr. 747.

8 Wright v. Rex, 3 Nev. & M. 892.

4 Rex v. Stevens, 5 East, 244, 1
Smith, 437.

5 Rex v. Graham, 1 Leach, 4th ed.
87. In an indictment for selling spir-
ituous liquors without license, the word
“spiritual”? was accidentally used in
one place instead of “spirituous” ;
but the court held it to be good in
this particular instance; Blackford, J.
observing : “‘ That the grand jury, by the
words: spiritual liquors, meant spiritu-
ous liquors, there can be no doubt.
The indictment, indeed, expressly says
so; for, after charging the unlawful
sale of spiritual liquors, it says, to wit,
one half-pint of spirituous liquors,” &c.
The State v. Clark, 3 Ind. 451. In

another case, which was an indictment
for subornation of perjury, the accidental
omission of the verb alleging a giving
of testimony, in the averment of what
was sworn to, was held to be fatal
on motion in arrest of judgment. The
State v. each, 27 Vt 317.

6 The State v. Nelson, 29 Maine,
829. In an early Massachusetts case,
it was held not to be necessary, in an
indictment for refusing to answer a
tythingman on the Lord’s day, to al-
lege that the tythingman was sworn
into his office; or that he had any
wand or badge of office ; or that he
was known to the defendant to be a
tythingman. Commonwealth v. Cald-
well, 14 Mass. 330.

71 Chit. Crim. Law, 231 u.

[203]
§ 274 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

anticipated or stated by the prosecutor.!| In an indictment
for disobedience of a justice’s order, it need not be averred
that the order was not revoked; nor is it necessary to
negative the commission of a higher offence.2 And it is
never necessary to negative all the exceptions Which, by
some other statute than that which creates the offence,
might render it legal, for these must be shown by defendant
for his own justification. Thus an indictment for a mis-
demeanor against a receiver of stolen goods, need not aver
that the principal has not been convicted.” 4

§ 274. We have already seen,> that it is the fact, not
the law, which an indictment must set out; and, in sub-
stance, that the pleader should use such language as will
separate the fact from the law, presenting the one to
the court, and leaving the other to be applied by the judge
to what is thus presented. But it is not always easy to
make such a selection of words as shall reach this result ;
and there are many instances in which it is impossible for
the best lawyer to say, in advance of the adjudication,
whether the judges will hold a particular word to be suf-
ficient or not. For example, suppose a statute makes penal
an unlicensed “sale” of intoxicating liquor, it may be a
question whether the word “sale” or “sold,” the exact
word used in the statute, will sufficiently describe the
act of selling; or, on the other hand, whether the indict-
ment must specify the things done, which constitute the
sale. Now, there enters always, into a sale, the element
of price ; and, in Indiana, the court held, that every in-
dictment under this statute must set out the price; be-
cause “ price is an essential element in the idea of a sale.”
Said Stuart, J.: “Every fact essential to be proved should
be alleged. Here the pleader alleges a ‘sale,’ which is a
conclusion from the facts, and leaves the important element
of price, a fact essential to support the idea of sale, to

15 T. R. 84; 2 Leach, 580. * 3 Leach, 579.

29 East, 19, 20. 5 Ante, § 52-57; People v. Aro, 6

32 Bur. 1036; 1 W. Bl. 230; 2 Cal. 207; The State v.Fields, Mart. &
Leach, 580. Yerg. 137.

[204]
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 276

be inferred. Perhaps, had all the facts been stated, the
court might have considered it a barter. It is inverting
the order of pleading to allege conclusions, and leave the
facts to inference.”1 On the other hand it is to be observed,
that every word used to describe a legal transaction is, when
so employed, more or less complex in its meaning, embrac-
ing the idea of the law in connection with the idea of the
facts. And it must be a question rather of practical wis-
dom than of nice theoretical speculation, whether a word,
in the relations which it sustains in the particular indict-
ment, does really present fact, or law; or, rather, looking
at the whole indictment, whether, taking all the words to-
gether, the facts are sufficiently presented as existences
distinct from the law. We shall see, in the proper place,
that the course of things in most of our States has been
to accept as good the particular allegation, which the In-
diana court decided to be bad.?

§ 275. “It is not necessary,” says Chitty,? “to state
a conclusion of law resulting from the facts of a case; it
suffices to state the facts, and leave the court to draw the
inference.* And therefore an indictment on the 15 Geo.
2, c. 28, § 3, for uttering counterfeit money, having at the
same time other counterfeit money in the custody of the
prisoner, need not allege him to be a common utterer; be-
cause in such case the statute says that the offender shall
be deemed a common utterer, which is consequently a mere
conclusion of law.®

§ 276. “ Neither,” he adds, “ is it necessary to state mere
matter of evidence, which the prosecutor proposes to ad-

1 Divine v. The State, 4 Ind. 240; Commonwealth v. Hatcher, 6 Grat.

Snyder v. The State, 5 Ind. 194; The 667; The State v. Mooty, 3 Hill, S.
State v. Miles, 4 Ind. 577; Hubbard C. 187; Zarresseller v. People, 17 Ill.
v. The State, 11 Ind. 554. 101.

2 And see among many cases, Clare
v. The State, 5 Iowa, 509; Wrock-
lege v. The State, 1 Iowa, 167; The
State v. Hornbeak, 15 Misso. 478 ;
The State v. Arbogast, 24 Misso. 363 ;
Commonwealth v. Leonard, 8 Met. 530 ;
Commonwealth v. Odlin, 23 Pick, 275 ;

VOL. I. 18

31 Chit. Crim. Law, 231 a.

4 5 Leach, 941.

52 B.& P.127; 2 Leach, 942, 4th
ed. 858; Russ & Ry. 5, 8. o. 1 East
P.C. 185 ; and see Russ. & Ry. 7; 2
Leach, 4th ed. 938 ; Russ. & Ry. 29,
8. C.

[205]
§ 277 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

duce, unless it alters the offence; for, if so, it would make
the indictment as long as the evidence.1 And upon this
principle it has been held, that an indictment charging
the defendants with conspiring ‘ by divers false pretences
and undue means and devices to obtain money of A. B.,
and to cheat and defraud him thereof,’ is sufficient, without
setting forth the particular means or pretences.2. And in
stating matter of aggravation the distinction seems to be,
that, where the aggravating matter cannot be made the
subject of a distinct charge, it may, though not stated,
be shown on the trial; but, where it may, another proceed-
ing must be adopted.”® Let us now proceed to expand
the foregoing views by separately noticing some particular
points, as already indicated.

Il. The Communication to the Prisoner of Information which
shall enable him to make his Defence.

§ 277. This, we have seen,‘ is one of the objects which
should be secured by the indictment. Hence the rule,
that, where all the facts charged in it may be true, yet the
defendant not be guilty prima facie, it is insufficient ;5 for
there still remains at least one thing to be brought against
him, of which he is not informed. And that he may know
certainly what each thing is, whereof he is charged, all
the facts which enter into his offence must, especially in fel-

11 Stra. 139, 140; Fost. 194, J.
22B.& Ald. 204; 6 T. R. 628;

in Mears v. Commonwealth, 2
Grant, Pa. 385, 387.“ The general

1 Leach, 4th ed. 274.

81 Stra. 140.

* Ante, § 267, 268.

5 Ante, § 49; Rex v. Johnson, 2
Show. 1, 2, note; Sarah v. The State,
28 Missis. 267; Crandall v. The State,
10 Conn. 339. “In the spirit of that
principle which presumes innocence
until guilt be established, we infer that
what is not charged in an indictment
does not exist ; and it is the business
of the pleader to exclude, by proper
averments, the conclusions to which
the accused is thus entitled.” Porter

[206]

rule of pleading is, that every fact or
circumstance which is a necessary in-
gredient in the offence, must be set
forth in the indictment, otherwise it is
defective. There are, it is true, some
exceptions to this general rule.” Dar-
gan, C. J. in Beasley v. The State,
18 Ala. 535, 538, 539. An indictment
for the removal of a’ pauper must al-
lege, that he was likely to be charge-
able, and to the damage of the par-
ish. Rex v. Flint, Cas. temp. Hardw.
370.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 278

ony, be set down by express averment, nothing being left
to intendment.! The indictment must allege everything
which it is necessary, for his conviction, to prove against
him.? For instance, where it is by statute made a par-
ticular offence to shoot at a person with the intent to kill
him, an indictment under the statute will be insufficient
if it merely alleges the assault upon the person, with the
intent to kill; because, though we may presume that the
person meant to be killed is the person shot at, yet this
is only an inference which comes to our understandings
by way of argument, while the defendant is entitled to
have each fact stated to him, without being cast upon his
reason to draw an inference.’ ‘ Precision in the descrip-
tion of the offence,” said Gibson, C. J. “is of the last im-
portance to the innocent; for it is that which marks the
limits of the accusation and fixes the proof of it. It is the
only hold he has on the jurors, judges as they are of the
fact and the law, or on an insubordinate judge, who, con-
fiding in his superior wisdom, refuses to conform to any
general standard of decision, when his judgment cannot be
reached by a writ of error.’’4

§ 278. There is, however, one matter coming within the
range of the observations made in the last section, upon
which the adjudged law seems to be not quite consistent
with the general doctrine, and not quite clear and uniform
in itself. We saw in the work on the Criminal Law, that,
to constitute a crime, there must be a criminal intent ;
no amount of act being sufficient alone, neither any amount
of intent ; but, in every instance, the two must combine.®
In the language of Starkie: In order “to render a party
criminally responsible, a vicious will must concur with a
wrongful act.6 But though it be universally true that a

1 Ante, § 269; Kit v. The State, 4 Hartmann v. Commonwealth, 5
11 Humph. 167; Dillingham v. The Barr, 60, 66.

_ State, 5 Ohio State, 280. 5 Crim. Law, I. § 364 et seq.
2 The State v. Wilson, 2 Mill, 61 Hawk. P. C. c 73, § 1; 5
135. Co. 125; 5 Mod. 165 ; 1 Salk. 418 ;
3 Jones v. The State,11 Sm.&M. 4 Bl. Com. 125; Rex v. Abingdon,
315. 1 Esp. 226, 228.

[207]
§ 278

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK II.

man cannot become a criminal unless his mind be in fault,
it is not so general a rule that the guilty intention must be
averred upon the face of the indictment.” 1

11, 1 Stark. Crim. Pl. 2d. ed. 177.
It is extraordinary what confusion of
ideas upon this subject is to be met
with in the books. Thus, when we
turn to Chitty we find the following:
“Where an evil intent accompanying
an act is necessary to constitute such
act a crime [as though there were some
crimes constituted without any evil in-
tent], the intent must be alleged in the
indictment and proved.” But this con-
fused enunciation does not prevent the
author from following it with a very
good statement of the law. So he pro-
ceeds : ‘“ Thus, where a libel has not
been published, but merely sent to the
prosecutor, it is necessary to state in
the indictment that it was sent to
him with an intention to provoke him
to a breach of the peace; so, where a
letter containing a libel is sent to the
wife, the indictment ought to allegé
it was sent with intent to disturb the
domestic harmony of the parties; 2
Stark. 245 [see 7 Conn. 266]; and,
in an indictment on the 43 Geo. 3, ec.
58, where the intent laid in several
counts was to murder, to disable, or
to do some grievous bodily harm, and
the intent found by the jury was to
prevent being apprehended, it was held
bad, and that the intention should be
stated according to the fact. Russ. & Ry.
365. So in burglary, if the entry be
alleged to have been made with intent
to commit a specific felony, the indict-
ment will not be supported by evidence
of an entry with intent to commit an-
other kind of felony. 1 Hale P. C.
561; 2 Hast P. C. 51; 2 Leach, 702,
Where the act is in itself
unlawful, an evil intent will be pre-
sumed, and need not be averred ; and,
if averred, is « mere formal allegation
which need not be proved by extrinsic
evidence. 6 East, 474; 1B. & P. 186,

[208]

187; Russ. & Ry. 207. Thus, in an
indictment for seditious words, it need
not be shown that they were uttered
with intent to alienate his Majesty’s
subjects, for it is manifest they have
that tendency. 2. Ld. Raym. 879, And
it is not necessary to prove the whole
intention as stated in the indictment;
if it be divisible it will suffice to prove
that necessary to constitute the offence ;
and, on an indictment charging an as-
sault with intent to abuse and carnal-
ly know, the defendant may be con-
victed of an assault with an intent to
abuse simply. 3 Stark. 62. So, where
a libel is stated to have been published
with intent to defame certain magis-
trates, and also to bring the administra-
tion of justice into contempt, it is suf-
ficient to prove a publication with
either of those intentions. 3 Stark. 35.”
1 Chit. Crim. Law, 233.

2. When we give a more careful ex-
amination to this matter, we find that,
as explained in the work on the Crim-
inal Law, there are the following dis-
tinctions: First, every crime has, for
one of its constituents, the intent to
do the act from which the criminal
result follows; or, at least, the mere
negative intent which is known under
the name of carelessness, or the like ;
and, in every case, where this result
comes without this intent, there is no
crime. Secondly, to constitute some
crimes, there must be the further intent
to bring about the particular result.
Thirdly, to constitute some other crimes,
there must be an evil intent beyond
the general one to do the wrongful
act, while yet it need not be the par-
ticular one to bring about the exact
result. Then, fourthly, there are crimes
in which, looking at the question part-
ly as one of evidence, the intent springs
out of the act as a necessary legal or
CHAP. XIx.] THE SUBSTANTIAL AVERMENTS.

§ 280

§ 279. If we look at this matter carefully we shall see,
that, as a general proposition, the law has not prescribed any
such rules to the pleader in setting out the intent, as it has
in setting out the act. Where, indeed, the intent enters as a
sort of special matter into a particular crime, then, perhaps,
as a general proposition, it should be particularly described ;
but this proposition is hardly a safe one practically to follow.
For example, a larceny is committed only where there is a
particular intent with regard to the appropriation of the prop-
erty taken ;1 yet the indictment simply alleges that the de-
fendant ‘ feloniously did steal, take, and carry away” the
property.2 If we say, that, as a general proposition, the word
“ feloniously ” conveys, in criminal pleading, the idea of the
criminal intent which enters into a felony, we shall find our-
selves at fault here ; because, for example, in burglary, the
indictment must not only contain the word “ feloniously,”
together with “ burglariously,” but it must go further and
specify the intention to commit, or the actual commission of,
the particular ulterior felony in the dwelling-house broken
and entered.®

§ 280. These are but illustrations of the difficulties which
would attend our labors should we undertake to lay down
absolute rules as to alleging the criminal intent. Let us,
therefore, content ourselves with looking a little at what has
been decided, and then pass on. It is perhaps safe to say,
that, in all cases where a statute creates an offence, and men-
tions some intent as an element therein, the indictment must
follow the statute in this particular, and specify the intent.*

actual consequence ; while, in other correct in principle. Still, as this is a

crimes, it comes in part or in full from
disconnected facts and circumstances.

3. Now, in this complication of
things, — where also practice has run on
without decision, and then decision has
proceeded without much reference to
the principles adhering in the law, — it
is not surprising, that, on this matter of
alleging the intent, legal results have
been reached, not altogether harmonious
with one another, and not uniformly

18*

practical question, the practical good
sense of the judges has prevented any
great inconvenience attending on this
condition of things.

1 Crim. Law, I. § 366, 397, 427 ;
II. § 777.

2 3 Chit, Crim. Law, 960.

8 3 Chit. Crim. Law, 1113, 1114,
1117 ; ante, § 278, note, par. 1.

4 Ante, § 277; The State v. Bacon,
7 Vt. 219, 222; People v. Lohman, 2

[209]
§ 281 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

On the other hand, as a general proposition, if the statute is
silent concerning the intent there need be no intent alleged
in the indictment.1 But to this proposition there are excep-
tions, founded on principles such as will be considered in our
next chapter. Thus, in Arkansas, a statute provided a pun-
ishment for every one who “ shall fraudulently keep in posses-
ston or conceal any fictitious instrument, purporting to be a
bank bill, note, check, or draft of any corporation or compa-
pany.” And an indictment upon the statute in the following
terms was held to be insufficient ; namely, that the defendant
“did feloniously and fraudulently keep in his possession a
certain fictitious instrument, purporting to be a bank note of
and upon the Merchants and Planters Bank of the State of
Mlinois,” &c. The court was of opinion, that, notwithstand-
ing the general terms of the statute, the essence of the offence
consisted in keeping the fictitious instrument in possession,
with the intent to impose it on the community as good.
Therefore, though this intent was not covered by the terms
of the statute, it was so by its spirit and fair construction,
and it should have been alleged in the indictment.?

§ 281. There is a plain distinction between acts which are
of themselves innocent or indifferent, yet become criminal by
reason of some particular ill-intent accompanying them in the

Barb. 216 ; Brittinv. The State, 5 Eng. Stark: Crim. Pl. 2d ed. 178, 179 refer-

299; Sarah v. The State, 28 Missis.
267; The State v. Gove, 34 N. H. 510,
615; The State v. Freeman, 6 Blackf.
248; 1 Stark. Crim. Pl. 2d ed. 168.

1 The State v. Eldridge, 7 Eng. 608 ;
Phillips vu. The State, 17 Ga. 459;
The State v. Bacon, 7 Vt. 219, 222,
Starkie, in illustrating the doctrine of
the text, says: “Thus, in an indict-
ment under the Stat. 3 Hen. 7, c. 2,
for the taking away, &c., of an heiress,
&c., though it is usual to aver the tak-
ing to have been ea intentione ad ipsam
maritandam, yet it has been holden to
be unnecessary to make that averment,
because the statute has no such words
as ea intentione ; but, according to Lord
Hale, it is safest to use those words.” 1

[210]

ring to 1 Hale P. C. 660.

2 Gabe v. The State, 1 Eng. 519;
In Phillips v. The State, supra, an in-
dictment under the following statute
was held to be sufficient when it follow-
ed the words of the enactment, making
no allegation of the intent : ‘ Any per-
son who shall draw or make a bill of
exchange, due bill, or promissory note,
or indorse or accept the same in a fic-
titious name, should be guilty of forg-
ery,” &c. The learned judge observed :
“Jt is clear that under the law the of-
fence is complete, provided it is made
satisfactorily to appear, from the evi-
dence, that the note was drawn and de-
livered in a fictitious name.” See also
post, § 281, 290.
CHAP. XIX.]

THE SUBSTANTIAL AVERMENTS. § 282

particular instance ; and those which, in their own nature
and tendencies, carry within themselves the elements of
crime. Aside from any doctrines peculiar to indictments
upon statutes, it appears to have been laid down by the courts,
that, as a general proposition, the former class of acts must,
in the indictment, be accompanied by an averment of the in-
tent ; but the latter, need not be. And Starkie observes, in
illustration of one branch of this distinction, that, ‘“ where
several persons were indicted for carrying one infected with
the small pox from one parish to another, it was holden ne-
cessary to aver that it was done with an il intent.”2 And
this writer adds: “It is frequently advisable to state specially
the intention with which a particular offence was committed,
though the offence itself, which is the foundation of the pros-
-ecution, be entirely independent of the particular intention
charged. Thus, in an indictment for an assault, it is usual,
for the purpose of aggravating the punishment, to aver that
it was made with intent to commit murder or rape, according
to the fact, in order to guide the court in their infliction of
punishment.” ?

§ 282. How far the indictment must descend into par-
ticulars in charging thé..crime is matter depending partly
upon usage, and partly upon the necessities and circum-
stances of the particular case. The defendant should have
all reasonable notice of what is to be produced against him;
while, on the other hand, the pleader should not be held
to such strict rules as to defeat the ends of justice. “ The
legislature never intended,” said the court in one case, “that
an indictment on the act for the preservation of timber-

’ Rex v. Philipps, 6 East, 464, 2
Smith, 550; Commonwealth v. Stout,
7 B. Monr. 247 ; Turner v. The State,
1 Ohio State, 422 ; The State v. West,
10 Texas, 553, 555. In the State v.
Freeman, 6 Blackf. 248, Sullivan, J.
said: “In many cases, the allegation
of intent is merely formal, being no
more than the inference which the law
draws from the act itself, and which
therefore requires no proof but what the

act itself supplies ; but, where the act is
indifferent in itself, and becomes crim-
inal only from the intent with which it
was done, the intent then becomes ma-
terial, and it is as necessary to allege
and prove it as any other of the facts
and circumstances of the case.”

2 1 Stark. Crim. Pl. 2d ed. 179, re-

‘ferring to Andr. 162.

8 1 Stark. Crim. Pl. 2d ed. 180.

[211]
§ 288 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

trees should be so special as to defeat the end proposed.” 1
An indictment, it was held by one of the English judges,
for concealing the birth of a child, “ by secretly disposing
of the dead body,” is in too general terms to answer the
requirements of the law, if it does not proceed to show
how the dead body was disposed of and secreted.? And
in North Carolina, an indictment simply for an affray, not
mentioning any acts by which it was committed, has been
held to, be defective. And, as a general proposition, the
special manner of the fact charged should appear in the
indictment. So, if the thing alleged to have been done
is a crime only in certain circumstances defined by the
law, the indictment must aver and set out the existence
of those circumstances, else it will be insufficient.®

§ 288. These are some of the general propositions ; but
let us resort once more to Chitty, remembering, that the
views of a law writer are always the more weighty in pro-
portion to the accumulated years which have stamped their
approbation upon them; and, therefore, when the writer
of to-day speaks in the words of him of yesterday, he is
doubly sure of obtaining attentive listeners. “ As observed
by Mr. Justice Buller,” he saysy “it is the duty of a
good pleader not to clog the record with unnecessary mat-
ter, and thereby throw a greater burden of proof on his
client than the law requires.” But, proceeding to indicate
how specific the indictment must be, he remarks: “ It
has been holden, that an indictment for. escaping from
prison, without showing the original cause of imprisonment,
is not maintainable.’ So an indictment for traitorously
coining alchemy like to the current coin of the realm, is
bad, unless it show the particular kind of money the metal
was intended to resemble.® So, in the case of perjury,
it is necessary to set out the oath as an oath taken in a

1 Moyer v. Commonwealth, 7 Barr, | § Commonwealth v. Clark, 2 Ashm.
439, 440, 105.

2 Reg. v. Hounsell, 2 Moody & R. 292. § 1 Chit. Crim. Law, 228-230.
3 The State v. Woody, 2 Jones, N. 7 2 Stra. 1226 ; 2 Hawk. P. C. ¢. 25,

C. 335. § 57; Bac. Ab. Indictment, G. 1.
4 The State v. Wimberly,3 McCord, & 2 Hawk. P. C.c. 25, § 57; Bac. Ab.
190 Indictment.

[212]
CHAP.: XIX.] THE SUBSTANTIAL AVERMENTS.

§ 284

judicial proceeding, and before a proper person, in order
to see whether it was an oath which the court had juris-
diction to administer.1 And in the prosecution of a con-
stable for not serving, it is necessary to set out the mode
of his election ; because, if he was not legally elected to
the office, he cannot be guilty of a crime in refusing to
execute its duties. And in an indictment for the disobedi-
ence of a justice’s order, it must appear that the order dis-
obeyed was a legal one, and such previous acts as were the
foundation of the magistrate’s authority must be recited,
or at least referred to.” 2

§ 284. This author continues: “It is also a general rule
that all indictments ought to charge a man with a particular
specified offence, and not with being an offender in general ;
for no one can know what defence to make to a charge
which is thus uncertain; it cannot be pleaded in bar or
abatement of a subsequent prosecution, nor can it appear
that the facts given in evidence against a defendant on such
a general accusation are the same of which the indictors
have accused him, nor will it judicially appear to the court
what punishment is proper upon conviction? It is, there-
fore, insufficient to charge the defendant with having spoken
false and scandalous words of the mayor of a certain city.*
So it is bad to accuse him with being a common defamer,
vexer, or oppressor, of many men; or with being a common
disturber of the peace, and having stirred up divers quar-
rels;® or with being a common forestaller,’ a common thief,
or with being a common evil doer,? a common champertor,”

1 Cro. Eliz. 137 ; Cowp. 683.
2 Cald. 183. When defect in this

848, 1246, 1247 ; 2 Hale P. C. 182; 2
Hawk. P. C. c. 25, § 59; Com. Dig. In-

respect cured, id. 536. dictment, G. 3; Bac. Ab. Indictment,
3 9 Hale P. C.182; 2 Hawk. P.C. G.1.

c. 25, § 59; Com. Dig. Indictment, G.
3; Bac. Ab. Indictment, G.1; Cro. C.
C. 37; 6 T. RB. 754; 3 T. R. 100; 1
Carth. 226.

#1 Roll. Rep. 79; 2 Roll. Ab. 79;
2 Stra. 699 ; 2 Hawk. P. C. c. 25, § 59;
Com. Dig. Indictment, G. 8; Bac. Ab.
Indictment, G. 1.

5 2 Roll. Ab. 79 ; 1 Mod. 71 ; 2 Stra.

6 Td. ibid.

7 Moore, 302; 2 Hawk. P. C. u. 25,
§59 ; Bac. Ab. Indictment, G. 1.

8 Ibid. id. 2 Roll. Ab. 79; 2 Hale
P. C. 182; Cro. C. C. 37.

92 Hawk. P.C. c. 25,§ 59: Bae.
Ab. Indictment, G. 1.

10 9 Hale P. C. 182; 2 Hawk. P.C.
c. 25, § 59 ; Bac. Ab. Indictment, G. 1.

[213]
§ 286 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

or with being a common conspirator, or any other such
indistinct accusation:1 and an indictment for a libel must
set forth the libel itself.?

§ 285. “The principal exceptions to this rule, at the pres-
ent day, are the cases of a common barrator,? and scold,*
and the keeper of a common bawdy-house,® who may be
indicted by these general words, without setting forth any
particular acts of barratry or scolding; because the charges
include in their nature a succession and continuation of
acts which do not belong to any particular period, but form
the daily habit and character of the individual offending.
And upon the same principle, it seems, an indictment merely
charging the defendant with keeping a common gaming-
house would be good. But in the case of an indictment
against a common barrator, though it may be general, the
prosecutor must give the defendant notice before the trial
of the particular instances that are meant to be proved.’’?

§ 286. It sometimes happens, that, notwithstanding the
particularity with which the law requires the offence to
be set out in the indictment, the defendant still fails to
receive from it such notice as the court deems him to be
entitled to, of the specific matters which the prosecutor
will attempt to prove against him on the trial. In such
a case, if the judge is applied to on behalf of the prisoner,
he will order a bill of particulars, as it is sometimes called,
or a written statement of the specific things, to be filed in
court with the papers in the case; and, on the trial, restrict
the prosecuting officer, in his evidence, to the proof of the
items which he has thus set down. Such a bill does not con-

1 Id. ibid.

C. v. 25, § 59; Com. Dig. Indictment,
23M. & S. 116; 8 Taunt. 169;1 G.3; Bac. Ab. Indictment, G. 1; Cro.
M. & S. 287. C. oe 37,
86 T.R. 752; Cro. Jac. 527; 6 1T. R, 754.
Mod. 311; 2 Roll. Ab. 79; 1 Sid. 1B. & C. 272.

282 ; 2 Keb. 409; 2 Stra. 1246; 2 Hale
P. C.182 ; 2 Hawk. P. C.c. 26,§ 59;
Com Dig. Indictment, G. 3; Bac. Ab.
Indictment, G. 1; Cro. C. C. 87.

* 6 Mod. 311; 2 Stra, 1246 ; 2 Keb.
409; 7 Hale P. C. 182; 2 Hawk. P.

[214]

7 2 Hawk. P. C. c. 25, §59; 4 T. RB.
754; 2T.R. 586.

8 Commonwealth v. Snelling, 15 Pick.
821; Commonwealth uv. Giles, 1 Gray,
466; Rex v. Hodgson, 3 Car. & P. 422 ;
Rex v. Bootyman, 5 Car. & P. 300.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 289

stitute a part of the record, and it is not subject to a de-
murrer.' The application for it is addressed merely to the
judicial discretion of the presiding judge, and his action
thereon is not generally deemed to be subject to review
by a higher tribunal.?

§ 287. Such a bill has been deemed proper in an indict-
ment for embezzlement, if the prisoner does not know the
specific acts of embezzlement intended to be charged against
him ;* in an indictment, framed in general terms, for being
a common seller of intoxicating liquor without licence ;+4
and, on an indictment for a libel containing general charges
of official misconduct against a magistrate, the defendant,
offering to give the truth in evidence, was required to file
a bill of the particulars, on which he should rely at the trial.®
These are but illustrations of the doctrine.

III. Zhe Communication to the Court of what will direct it
how to order the Course of the Trial.

§ 288. What was said under the last sub-title is in a good
degree applicable under this. In former times, there was
considerable difference in the methods of proceeding in a
criminal case, growing out of the distinctions between trea-
son, felony, and misdemeanor. The diversities thus alluded
to have been already explained in a general way,® and some
of them will be more particularly described in their proper
places in subsequent pages. In modern times, these diversi-
ties have become less numerous than they formerly were;
but, as to this, the rules. are not uniform in all our States.
In some of them, these distinctions, as concerns the proced-
ure, are almost obliterated.

§ 289. Formerly, therefore, it was particularly desirable,

1 Commonwealth v. Davis, 11 Pick, 11; Commonwealth »v. Giles, 1 Gray,
432. 466.

2 Commonwealth v. Wood, 4 Gray, 5 Commonwealth v. Snelling, 15 Pick.
11; Commonwealth v. Giles, 1 Gray, 321.

466. See ante, § 205. 6 Crim. Law, I. § 814. 819, 846, 847,
8 Rex v. Hodgson, 3 Car. & P. 422; 887, and various other places ; ante,
Rex v. Bootyman, 5 Car. & P. 300. § 11,17.

£ Commonwealth v. Wood, 4 Gray,

[215]
§ 290 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

and it is not quite unimportant now, for the indictment to
show plainly on its face, whether the crime charged belongs
to the class of treason, of felony, or of misdemeanor. Conse-
quently every indictment for treason, while the pleadings
were in Latin, was required to contain the word proditorie ;
and every indictment for felony, the word felonice. The
omission of these words indicated that the offence was no more
than a misdemeanor ; “for,” says Starkie, “it seems to be
clear, that no offence, as described in any indictment, can
amount to more than a misdemeanor, if it be not laid to have
been committed either proditorie or felonice.”1 And these
distinctions are continued, at least as to common law offen-
ces, down to the present day and in this country. The in-
dictment for treason alleges, that the act was committed
traitorously ; the indictment for felony, that it was done fe-
loniously ; and, where neither of these words is used, the of-
fence is no more than a misdemeanor.”

§ 290. But where a new felony is created by a statute, or
an act which was before a misdemeanor is elevated to this
higher degree, yet the statute does not use the word “ feloni-
ously,” there is a difference of judicial opinion whether the
word must be put into the indictment. In some of our
States, the courts hold that it must be, even in such a case.?
On the other hand, there are States in which it has been held
sufficient to follow the words of the statute in these cases ;
and, if it does not use the word “feloniously,” the indictment
need not, though the combined statute law makes the of
fence a felony.*| In Arkansas it has been laid down, that the
question, where the statute does not use the word, depends
upon the nature of the case ; in some cases, the act should

1] Stark. Crim. Pl. 2d ed. 74, re- Mears v. Commonwealth, 2 Grant, Pa:
ferring to Staunf. 96 a@; 2 Hawk. P.C. 385; Cain v. The State, 18 Texas, 387.
cu. 25, § 55. In Jane v. The State, supra, the Court

21 Stark. Crim. Pl. 2d ed. 75; and observed : “ There is no proposition
see the authorities cited to the next sec- more clear in law, than that in all indict-
tion. ments for felony the indictment must

8 Jane v. The State, 3 Misso. 61; charge the act to have been done feloni-
The State v. Gilbert, 24 Misso. 380; ously, or with a felonious intent.”

The State ». Murdock, 9 Misso. 730 ; * Millar v. People, 2 Scam. 233;
Williams v. The State, 8 Humph. 585; Quigley v. People. 2 Scam. 301.

[216]
CHAP. XIX.]

THE SUBSTANTIAL AVERMENTS. § 292

be alleged to have been done “ feloniously’; in others, it
need not be.}

§ 291. Where a statute raised a common law misdemeanor
to a felony, and declared, that “ all indictments for offences
enumerated in this act, which are offences at common law,
shall be good, if the offence be described or charged ac-
cording to common law, or according to this statute,’ an
indictment which did not use the word “ feloniously”’ was
held to be sufficient.2. But where an act which was not a
common law offence was made a felony, the court held, that,
notwithstanding this provision regarding the indictment, it
must be charged to have been committed “ feloniously,” or
the indictment will not be sustained.®

§ 292. There is some authority to the effect, that, if an in-
dictment sets out the act to have been feloniously done, in
the ordinary form of indictments for felony, yet alleges only
such facts as constitute a misdemeanor, the word “ felonious-
ly” cannot be rejected as surplusage, but the indictment is
bad.* On the other hand, there appears also to be authority

1 The State v. Eldridge, 7 Eng. 608,
610, Johnson, C. J. observing, among
other things : “In all cases of felonies
at common law, and some also by stat-
ute, the felonious intent is deemed an
essential ingredient in constituting the
offence, and hence the indictment will
be defective even after verdict, unless
the intent is averred.”

2 Peck v. The State, 2 Humph. 78.
The same is held under a similar stat-
utein Alabama. Beasley v. The State,
18 Ala, 585; The State v. Absence, 4
Port. 397; Butler v. The State, 22
Ala. 43.

8 Williams v. The State, 8 Humph.
585. The statutory crime in this case
was as follows: Ҥ 53. Any person
who shall be guilty of committing an
assault and battery upon any female,
with intent, and against her will, to
have unlawful, carnal knowledge of
such female, shall,” &c. An carlier sec-
tion of the same enactment provided,

VOL. I. 19

that “all the offences enumerated in
this act are felonies.” Said Green,
J.: “ We have been referred to § 72 of
the act above recited providing,” &c.,
the same as quoted in the text. “ The
offence created by the 53d section of
the act does not exist at common law.
An assault and battery, with intent to
commit a rape, was only an assault
and battery at common law, and might
or might not be charged with the ag-
gravating circumstance. The offence
of an assault and battery with intent to
ravish, created by the 53d section of the
act, is wholly different.” p. 596. It
was therefore held, that the indictment
which charged the assault to have been
made with intent feloniously to ravish
the prosecutor, was not good ; the charge
should have been, that the assault was
felonious.

* Thus, in Maryland, an indictment
charged, that the traverser “ felonious-
ly, unlawfully,” &c., did burn a certain

[217]
§ 294 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

the other way ;! and, indeed, the doctrine which rejects the
word “ feloniously ” as surplusage, and holds the indictment
‘to be good, is to be preferred.?

IV. The Information to guide the Court in pronouncing the
Sentence.

§ 293. It is a proposition to which there is perhaps no ex-
ception, that whatever is necessary as a guide to the court in
pronouncing the sentence, must be alleged in the indictment.’
Thus it was held in Illinois, that, in arson, the value of the
property burned must be alleged; Wilson, C. J. observing:
“This would probably be unnecessary at common law, as a
fine formed no part of the punishment for the offence. The
statute, however, under which the indictment is found, has
changed the common law in this respect; a fine, equal in
value to the property burned, is imposed as part of the punish-
ment for the offence.”* ‘So, in Alabama, the indictment for
malicious mischief alleges the value of the property injured ;
because, says the court, the statute provides that the offender
shall, on conviction, “ be fined in such sum as the jury trying
the same shall assess, not exceeding four fifths of the value of
the property injured or destroyed.” 5

§ 294. On the same principle, where, in Texas, the defend-
ant was indicted for stealing a horse, the court held the in-
dictment good, though it contained no allegation of value ;

stack of hay “against the form of the
act of assembly,” &c. The jury ren-
dered the verdict, that he did “ feloni-

the goods and chattels of the said B,
in the said dwelling-house being, felo-
niously and burglariously to steal and

ously, unlawfully,” &c., burn said stack
of hay. And it was held, that, as the
offence was not a felony, no valid judg-
ment could be pronounced on such an
indictment and verdict. Black v. The
State, 2 Md. 376. .

1 Jn Pennsylvania an indictment for
the misdemeanor of an attempt to com-
mit burglary, charging that “ A, with
an axe, the dwelling-house of one B, in
the night time, feloniously and burgla-
riously did break, and with the intent
with said axe to open and enter, and

[218]

carry away, but the said A did then and
there fail in the perpetration of said of-
fence,” &c., was held to be sufficient.
Hackett v. Commonwealth, 3 Harris,
Pa. 95. And see Mears v. Common-
wealth, 2 Grant, Pa. 385, where this
form was held to be essential.

2 Crim. Law, I. § 819, where many
more authorities are exhibited.

3 Ante, § 245, 267, 268.

* Clark v. People, 1 Scam. 117.

5 The State v. Garner, 8 Port. 447.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 296

because, by the statute, value did not enter in any degree into
the punishment. Said Roberts, J.: ‘The rule laid down by
East, Hale, and Blackstone is, that the value of the property
must be stated in the indictment, and the reason invariably
given for it is, to distinguish between grand and petit larceny.
That reason does not apply in this case.” }

§ 295. Another illustration of the doctrine is as follows.
A statute imposed a fine on any common carrier by whose
negligence the life of a passenger is lost, “‘ to be recovered by
indictment to the use of the executor or administrator of the
deceased person, for the benefit of his widow and heirs.”
And it was held not to be sufficient, in an indictment under
the statute, simply to set out the name and appointment of
an administrator ; but the pleader should go further, and, in
the words of Dewey, J. “allege, as a distinct affirmative
averment, that the deceased has left a widow and child, or
one of these only, as the case may be ; and, if no widow and
child, then it should be alleged, that the deceased left heirs
at law, for whose benefit the executor or administrator is to
recover the amount of the fine.”? These are but illustrations
of the doctrine.

V. The Statement of Facts which will enable the Prisoner
to plead the Proceeding in bar of a subsequent Indictment.

§ 296. We have already seen, that, according to the
books, this is one of the objects to be secured by the form
of allegation adopted. There are many cases in which
the judges have adverted to this consideration ; and plainly
it should not be left entirely out of mind. But it is always
admissible, as we shall see in the proper place, for a person
who would plead a former jeopardy to bring forward ex-
trinsic evidence of the identity of the two offences charged ;
therefore this consideration can hardly be a leading one re-
specting the framework of the indictment. The prominence
which is given it, in many places in the books of our law,

1 Lopez v. The State, 20 Texas, 780, 2 Commonwealth v. Eastern Rail-
781. And sce post, § 315. road, 5 Gray, 473, 474.
3 Ante, § 268,
[219]
§ 298 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

rather than its intrinsic importance, justifies the prominent
position it assumes on these pages.

VI. The difference in the Allegation, where a particular
thing is known to the Grand Jury, and where it is unknown.

§ 297. The law would be very unwise should it attempt
to require of the pleader allegations, which, in the cir-
cumstances of the particular case, it would be either prac-
tically impossible or unreasonably difficult for him to make.
It is therefore a general doctrine, that facts which are not
within the knowledge of the grand jury, after hearing such
evidence as the law deems sufficient, need not be set out
in the indictment. A frequent illustration of this prop-
osition occurs in those cases wherein, by the ordinary rules
of criminal pleading, the indictment should contain the
name of some third person, yet the witnesses do not know
the name; in such instances, the name need not be men-
tioned ; but, since it must have been given if it had not
been for this special fact, the existence of this fact must
be stated. The usual form in these cases is: “a certain
person whose name is to the jurors unknown,” or, “ a cer-
tain person or persons to the jurors aforesaid unknown.” ?

§ 298. Connected with this matter there are some questions
of doubt; but, if the reader will keep in his mind the
reason on which the law proceeds, he will find the difficulties
less than they at first appeared. A case showing in part

1 See ante, § 41, 282, 285. sufficient. Said Davison, J.: “The

21 Stark. Crim. Pl. 2d ed. 188; 1
Chit. Crim. Law, 212; Reg. v. Camp-
bell, 1 Car. & IK. 82; Rex ». Clark,
Russ. & Ry. 358; Rex v. Smith, 6 Car.
& P.151. ‘“ An indictment of murder,
de quodam ignoto, or of stealing the
goods cujusdam ignoti, is good, where
the person killed or robbed is unknown.”
Plow, 85 ; Ib. 129; Rushton’s case,
2 Leon. 121. In one case, the words
in an information for an assault were,
that the defendant did beat, &c., “a cer-
tain boy whose name is unknown,” con-
trary, &c.; and they were held to be

[220],

ground of this exception is, that the
phrase, ‘ whose name is unknown,’ is
equivalent to the allegation, ‘that his
name is unknown to the whole world,
and that consequently he has no name,
nor even an existence.’ We are not
inclined to adopt this construction. The
attorney for the State having made and
filed this information, the terms used in
that pleading, namely, ‘whose name
is unknown,’ evidently intend that the
name of the boy was ‘ unknown’ to the
pleader, and nothing more.”’ Brooster
v. The State, 15 Ind. 190.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 298

the reason of the law was the following: A statute in
Alabama having made it an offence to trade with a slave
without a permit from the master or overseer, specifying
the articles which the slave might buy or sell, there was
an indictment found against a defendant for selling, contrary
to the statute, a gill of whiskey “to a slave whose name
is to the jurors unknown.” ‘The indictment was held, on
demurrer, to be insufficient ; because, as the defence might
consist in showing a permit, the defendant had no such
notice given him in the allegation as would make this
defence available! Here it was plainly in the power of
the pleader to introduce some further description of the
slave, thus making some intimation to the defendant of
what one was meant, if there were really before the grand
jury witnesses who had properly identified the offence. But
in another case, under a municipal ordinance similar in
terms to this statute, the complainant described the slaves
as “sundry slaves, the names and owners of whom are
totally unknown to the plaintiff ; to wit, one black boy about
twenty years of age, and one yellow boy, stout and heavy ’’;
and it was held, on demurrer, to be sufficient. Whether an
indictment in these terms would have been sufficient also,
the case does not disclose.? And there are decisions in other

1 Francois v. The State, 20 Ala. 83.
Goldthwaite, J. added: “ We would
not, however, be understood as decid-
ing, that it was absolutely necessary to
describe the slave, in indictments for
this offence, by his name. That is but
one mode of description, and any other
which would afford to the defendant in-
formation as to the particular slave to
which the charge referred, we are in-
clined to think would be sufficient.
Neither do we deny, that, in some cases,
where the means with which, or the
person on or by whom, an offence is
committed, are unknown to the jurors,
-it may not be so charged in the indict-
ment. If the trading with a slave was
an offence without any other constitu-
ent, we see no reason why the indict-

19 *

ment might not allege his name as un-
known to the jurors, if such was the fact,
without in the slightest degree impairing
the ability of the accused to defend ; and
we can suppose many cases in which this
can be done, without infringing on the
rule which we have referred to, and on
which our decision is based. When,
however, this rule would be invaded,
and the effect of alleging a constituent
of the offence in this form would be to
create such a degree of uncertainty in
the indictment as materially to abridge
the ability of the defendant to prepare
his defence, we hold that it could not
be so charged.”’ p. 85.

2 Eberlin v, Mayor of Mobile, 30
Ala. 548.

[221]
§ 800 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

States not quite in harmony with the earlier Alabama case ;
which, however, is evidently sound in principle.t

§ 299. On the other hand, in an ordinary case of selling
intoxicating liquor without a license, where the license is a
general one, coming from public authority, and not from the
owner of a particular human being to whom the sale is in the
individual instance made, such words of description as were
thus held to be insufficient in Alabama, are, where the pur-
chaser is unknown, adequate.?. Even, according to the opin-
ions held in some tribunals, it is not necessary in these cases
so much as to state the name of the purchaser, though he
should be known ; 8 yet the general doctrine is, that, if the
purchaser is known, his name must be set down in the alle-
gation. In indictments for assault, for felonious homicides,
and the like, the person injured or killed may be mentioned
as unknown, if such is the fact.

§ 300. In all these cases, suppose it turns out on the evi-
dence that the grand jury were wilfully ignorant, and might
have known the name if they had chosen; then, the reason
on which this form of the allegation is allowed, failing, the

1 Thus, an indictment under the Ten-
nessee statute for giving liquor to a
slave without the consent of the owner,
describing the slave as “a certain slave,
name unknown, and the name of the
owner of said slave unknown,” was
held to be good. The State v. Harris,
2 Snead, 224. So, in Missouri, under
a like statute, the words were, ‘a cer-
tain slave, the name of which slave,
and the name of the owner or master
‘or overseer of which said slave, are to
the jurors unknown”; and they were
held to be sufficient. The State v. Guy-
ott, 26 Misso. 62. The Alabama case
seems not to have been before the court
in either of these two cases ; but, in the
former of the two, the defendant relied
upon decisions in Kentucky and South
Carolina ; namely, Commonwealth v.
Cook, 13 B. Monr. 149, and The State
w. Schroder, 3 Hill, S.C. 61. It may
be observed, however, that the words

[222]

which were thus held sufficient in Ten-
nessee and in Missouri, are somewhat
stronger than those which were held
insufficient in Alabama.

2 The State v. Bryant, 14 Misso. 340;
Blodget v. The State, 3 Ind. 403. Thus,
a complaint was held to be sufficient,
where the purchaser was described as
“some person of Lynn, whose name
is unknown to your complainant.”
Commonwealth v. Hitchings, 5 Gray,
482. But an indictment for retailing
spirituous liquors to “ divers persons”
is bad ; it should either mention their
names, or allege that they are unknown.
The State v. Stucky, 2 Blackf. 289.

3 People v. Adams, 17 Wend. 475.

* Brooster v. The State, 15 Ind. 190,
as to which see ante, § 297, note.

5 Reed wv. The State, 16 Ark. 499 ;
Reg. v. Campbell, 1 Car. & K. 82; Reg.
v. Stroud, 2 Moody, 270, 1 Car. & K.
187 ; ante, § 297, note.
CHAP. XIX. ] THE SUBSTANTIAL AVERMENTS. § 301

allegation itself will be held on the trial to be insufficient, or
to be insufficiently sustained by the proofs adduced. Thus,
where an indictment for selling spirituous liquor without li-
cense alleged, that the sale was made to a person whose name
was to the jurors unknown; and, on the trial, one witness
only was examined, and he said he knew the name of the
purchaser, and should have disclosed it to the grand jury had
he been asked, but he was not; the court refused to sustain
a verdict rendered on this indictment and this evidence.
Said Blackford, J.: ‘“* This indictment would not have been
sustained had the evidence on the trial shown, that the name
of the third party was known to the grand jury when the in-
dictment was found! We are of opinion also, that it ought
not to be sustained in the present case, where the name might
have been ascertained by the grand jury if they had made the
proper inquiry of the witness whom they were examining.” ?
In Massachusetts, however, it has been held, that, in such a
case, where in fact the grand jury did not know the name of
the third person, and there is therefore no variance between
the allegation and the proof, the proceeding will be sustained ;
because it was deemed to be no part of the duty of the petit
jury to revise the doings of the grand jury, and determine
what might have been ascertained by the latter body.’

§ 301. If the indictment alleges the name of the person as
unknown, and on the trial the name is disclosed in the evi-

1 Referring to Rex v. Walker, 3 N.P.595. In this case, Richards, C.

Camp. 264 and note.

2 Blodget v. The State, 3 Ind. 403,
404. Chitty says on this subject :
“Where the parties’ names may be
ascertained on inquiry, it seems they
must be named ; and, where property
was stated in one count to belong to
certain persons, naming them specifi-
cally, but in another count to belong
to persons unknown, and the prosecu-
‘tor by defect of evidence could not
prove the Christian names of the per-
sons described in the first count, it was
‘considered he could not recover on the
other count.” 1 Chit. Crim. Law, 213,
referring here to Rex v. Robinson, Holt

B. said: “ The owners, it appears, are
known ; but the evidence is defective on
this point. How can I say that the
owners are unknown? I remember a
case at Chester before Lord Kenyon,
where the property was laid as belong-
ing to a person unknown ; but, upon
the trial, it was clear that the owner

-was known, and might easily have been

ascertained by the prosecutor. Lord
Kenyon directed an acquittal.” p. 596.
See also Reg. v. Campbell, 1 Car. & K.
82.

3 Commonwealth v. Stoddard, 9 Al-
len, 280.

[223]
§ 302 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

dence, this does not work a variance, unless it is also shown
that the grand jury knew the name.t And suppose it ap-
pears that, in another indictment, the same grand jury has
specified the name ; as, for instance, on the trial of an indict-
ment for feloniously receiving goods stolen by a person alleged
to be unknown, it appears that the same grand jury has found
a bill imputing the principal felony to a person known ; still,
the fact of knowledge by the grand jury not being otherwise
made manifest in the case wherein the name is alleged not to
be known, there may be a conviction.? Ifit is plain who the
individual is, yet it is uncertain what is the name, an indict-
ment describing the person as to the jurors unknown will be

sustained by this evidence.®

§ 802. Where, in these cases, it is usually necessary to
mention the name of the third person, and the pleader ex-

1 Commonwealth v. Hill, 11 Cush.
137 ; Hays v. The State, 18 Misso. 246,
where Birch, J. observed : “ It is con-
ceived, that, in such cases, it is neither
made out that the grand jury found an
improper indictment, nor does it in-
volve any variance which would author-
ize the acquittal or discharge of the de-
fendant.”” MReaffirmed, The State v.
Bryant, 14 Misso. 340.

2 Rex v. Bush, Russ. & Ry. 372;
Commonwealth ». Hill, 11 Cush. 137.
In the latter of these cases, the indict-
ment alleging the principle thief to be
unknown, the thief himself appeared as a
witness, and he testified both that he stole
the goods, and that he was present as a
witness, and so stated to the grand jury,
on its investigation of the case then be-
ing tried. To rebut this evidence and
thus prevent an acquittal by reason of
‘the variance, the foreman of the grand
jury was called, and he denied the
presence of the witness on the occasion
mentioned. Therefore a verdict was
rendered against the defendant, and these
proceedings were held to be correct.
In Virginia it has been laid down, that
a prisoner cannot defend himself by
presenting as a witness a member of
the grand jury, who is ready to testify

[224]

to the diversity of the transaction prov-
ed, and the one for which the indict-
ment was found. Loftus v. Common-
wealth, 3 Grat. 631.

3 Commonwealth v. Tompson, 2
Cush. 551. Thus, in England, D. C.
was indicted for manslaughter, in kill-
ing “ acertain woman, whose name to
the jurors is unknown.” JD. C. cohabit
ed with the woman, and sometimes said
that she was his wife, and sometimes
that she was not ; and none of the wit-
nesses had heard her called by any
name. Erskine, J. told the jury, that,
if they were satisfied the deceased was
not the wife of the prisoner, and that
her name could not be ascertained by
any reasonable diligence, this descrip-
tion of her was proper; but, if they
should think that the deceased was the
wife of the prisoner, the description was
bad; for, although there was no evi-
dence of her Christian name, she was
entitled to the surname of C., as being
that of her husband. Reg. v. Camp-
bell, 1 Car. & K. 82. To the point that
a person cannot be described as un-
known, when one name is known, see
also Reg. v. Stroud, 2 Moody, 270, 1
Car. & K. 187.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 303

cuses himself by alleging that the name is unknown, the
averment must be proved to the jury, the same in the latter
circumstances as in the former.!_ The books do not much
enlighten us concerning the presumptions of evidence here,
-but on principle the matter seems to be somewhat as follows:
If, on the trial before the petit jury, the name appears to be
unknown, then the inference is, that it was equally unknown
to the grand jury. On the other hand, if the name is dis-
closed, the jury will be justified in doubting whether it was
unknown to the grand jury, unless something appears in the
course of the evidence to remove the doubt, and satisfy their
minds. In a Massachusetts case, where adultery was charged
in one count to have been committed with Esther Bradford,
and in another with a woman whose name was not known,
Shaw, O. J. described what was done at the trial, expressing
the opinion of the court that it was correct, as follows: “It was
intended, we suppose, to say, that, if the evidence was insuf-
ficient to establish the fact affirmatively, to the satisfaction of
their minds, that the woman’s name was Esther Bradford,
they could not so find that fact ; and, as there was no other
evidence tending to prove what her name was, the jury would
be warranted in finding, that, if the act was done at all, it was
with a woman whose name, not being proved, was not known
to them by any legal and sufficient evidence, and was there-
fore unknown.”? We should probably err, however, if we
were to assume, as the doctrine of this case, that, in the ordi-
nary circumstances of a trial, without reference to special-
facts, the jury would be justified in finding a verdict upon a
count alleging the name to be unknown, whenever there was
a mere absence of evidence respecting the name. In other
words, this averment must, as already stated, be sustained by
the proof, the same as the other averments.
§ 303.. The views thus far given under this sub-title substan-
tially exhaust the subject of the name, as concerns the legal
principle. But the same principle is to be applied in all the

1 Reed v. The State, 16 Ark. 499; Cush. 551, 552. See Reg. v. Thomp-
Cameron v. The State, 13 Ark. 712. son, 16 Q. B. 832, 4 Eng. L. & Eq.
2 Commonwealth v. Tompson, 2 287.
[225]
§ 304 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

other circumstances in which the same reason prevails. Thus
an indictment for murder may allege, that the defendant
committed the crime, at a place specified, ‘in some way and
manner, and by some means, instruments, and weapons, to the
jurors unknown,” if in fact the circumstances are such as to
preclude the grand jury from stating the matter with greater
certainty. And while, as a general proposition, the indict-
ment for forgery must contain a transcript of the instrument
forged,? yet, if the instrument is destroyed, or is in the hands
of the prisoner, this particularity may be dispensed with on
the fact being made thus to appear in the indictment, and the
‘substance only need be given.? The illustrations of this prin-
ciple are very numerous, but we shall do best to reserve the
rest for consideration in connection with the respective sub-
jects to which they belong.

VII. The Difference in the Allegation where the Matter
comes in incidentally, and where it is the Subject of a di-
rect Charge.

§ 304. “It has frequently been holden,” says Starkie,*
“ that it is insufficient to allege a material part of the charge.
by way of recital, prefacing it with the words ‘for that
whereas, &c.’; therefore, where an indictment against the.
defendant for having disobeyed an order of two magistrates.
averred, that, whereas the justices made an order, &c., the in-
dictment was holden to be insufficient, for not directly aver-
ring that such an order was made; for, without the order,.
there could be no offence.6 But where the matter laid under
a quod cum is merely introductory, the allegation will be suf-
ficiently certain. Thus, an indictment for forgery, which al-
leged quod cum testatum existit per quandam indenturam,
that J. 8. demised, &c., and then averred, that the defendant

1 Commonwealth v. Webster, 5 dale v. The State, 1 Head, 139. See
Cush. 295 ; The State v. Williams, 7 post, § 310.
Jones, N. C. 446. 4 1 Stark. Crim. Pl. 2d ed. 244, 245.
2 Post, § 308 et seq. 5 Rex v. Crowhust, 2 Ld. Raym.
8 People v. Kingsley, 2 Cow. 522; 1363; Rex ». Whitehead, 1 Salk. 871;
Wallace v. People, 27 Ill.45; United 2 Hawk. P. C. c. 25, § 60; 4 Co. 42;
States v. Britton, 2 Mason, 464; Crox- 5 Co..150.

[226]
CHAP. XIX.]

THE SUBSTANTIAL AVERMENTS. § 306

falsely forged an assignment in writing of that lease, setting
out the tenor, was holden to be sufficiently certain.’’ 4

§ 805. We have, then, this distinction, namely, that, when
the matter enters directly into the substance of the offence,
it must be averred by direct words; but, when it is merely
introductory, or collateral, or stands as the inducement to
something else, the pleader is permitted, if he chooses, to
introduce it indirectly, by the use of such a word as where-
as Thus, to employ a further illustration, if a constable
is indicted for the non-feasance of not returning a warrant
which has been put into his hands, the indictment may aver,
that, whereas the third person whom it mentions was con-
victed so and so, and whereas a warrant was issued, and
the like ; but, when it comes directly to the charge, it must
employ direct language.2 It would be useless to multiply
illustrations of this matter.

§ 306. But there is a distinction between alleging a thing
under a whereas, and alleging it by the use of a participle
instead of a verb; for, ordinarily, where the direct language
is required, the participle, if it is the appropriate word
in the place in which it is used, is sufficient. For example,
a man by the name of Lawley was proceeded against by
information, for the misdemeanor of having attempted to
persuade a witness not to appear and give evidence against
Crooke, who was under indictment for forgery. After
Lawley had been found guilty by the jury, it was moved
in arrest of judgment, “ that,’’ says the report, “it was
not positively averred that Crooke was indicted. It was
only laid, that she, sciens that Crooke had been indicted,
and was to be tried, did so and so; whereas, in all criminal

1 Reg. v. Goddard, 3 Salk. 171; 2

1363, it was holden, that the averment,
Ld. Raym. 1194; 2 Stra. 904; Com.

quod exoneravit tormentum dans plagam,

Dig. Indictment. In Rex v. Goddard
it was said by the Court: “The quod
cum is well enough, for it is but an in-
ducement to the fact; and, when the
indictment comes to charge-the forgery,
it charges it in a particular manner.”
Starkie adds, in his text: “In Long’s
case, 5 Co. 122, but see 2 Ld. Raym.

without saying purcussit, was insuffi-
cient; and, in Vaux’s case, 4 Co. 44,
an indictment, alleging quod nesciens
potum fore venenatum bibit, was holden
to be vicious, for not saying expressly
venenum bibit.”

2 1 Chit Crim. Law, 231.

8 Reg. v. Wyatt, 2Ld. Raym, 1189.

[227]
§ 808 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

cases, the fact must be positively alleged, and not by infer-
ence. But the court upon consideration held it was well
enough; and that there is no real difference between in-
dictments and actions, where the gist of the action must
be positively averred. Dans plagam mortalem, warranti-
zando vendidit, receiving stolen goods knowing them to
be stolen, are all as loose. So is the case of keeping a dog,
knowing him to be accustomed to bite sheep.”1 In like
manner, where the statute 4 & 5-Phil. & M.c. 8, against
stealing an heiress, made it indictable “if any person, &c.,
above the age of fourteen,’ &c., should take the heiress
away, a charge that the defendant, ‘* being above the age of
fourteen years,’ did the act, was held to contain a sufficient
averment of his age.2 On the same principle, in Missouri,
an indictment which charged that the defendant did wilfully
and unlawfully disturb the peace of a neighborhood, “ by
then and there cursing and swearing, and by loud and
abusive and indecent language,” contrary to the provisions
of the statute, was held to be sufficient.®

§ 307. Where an evil intent is necessary to be alleged,
it is commonly put in this participial form, if the propriety
of language permits; and it has been held to be sufficient
in this form, though inserted only in the introductory part
of the indictment. It will also occur to the reader, that
“ feloniously,”’ “ traitorously,”’ and many other words, of the
like sort, employed to designate the intent,5 are adverbs.
We may therefore conclude, that, even where the direct aver-
ment is required, there is no particular part of speech in which
it must be made.

VII. The different Forms of setting out Written Instru-
ments and Words spoken.

§ 308. There are two ways in which written words are

set out in indictments; the one is, according to their sub-
1 Rex v. Lawley, 2 Stra. 904. * Rex v. Philipps, 6 East, 464, 2
2 Rex v. Moor, 2 Mod. 128, 180. Smith, 550. ;
8 The State v. Fogerson, 29 Misso. 5 Ante, § 279, 280, 289, 290.

416.
[228]
CHAP. XIX. ]

THE SUBSTANTIAL AVERMENTS. § 310

stance or general meaning; the other, according to their tenor,
or precise recital. There are various expressions employed
to indicate the one form or the other; and these, by usage
and judicial construction, have become a sort of fixed and
technical language in the law of the indictment. The more
exact word to indicate the tenor, is the word “tenor” itself;
as, “ to the tenor following,” or, “‘ according to the tenor fol-
lowing.” Yet there are other terms which are sufficient,
if employed instead of these ; for example, “ in these words”
— “as follows”? — “in the words and figures following ’?! —
“as follows, that is to say.” ?

§ 809. There are various other expressions which have
been held not to indicate the tenor, but to denote in effect
the substance ; though they do not appear to be all, in what-
ever situation found, exact equivalents for one another. The
following are specimens of them: “in manner and form fol-
lowing, that is to say’ ?— “according to the purport and ef-
fect, and in substance, among other things, as follows, that
is to say ”*— “of the purport and effect following, that is
to say ” 5 — “ purport ” § — “ substance ” 7 — “ effect fol-
lowing.” 8

§ 810. What particular instruments must be set out in one
of these forms, and what may be sufficiently described in the
other, we shall see when we come to treat of the several of-
fences. If it is necessary that the tenor should be shown in
evidence, the indictment must profess to allege it; or, in
other words, the term “tenor,” or some equivalent term,
must be employed ; and it is not sufficient, that, in fact, the

11 Chit. Crim. Law, 233; Rex cz.
Beare, 1 Ld. Raym. 414; Dana v. The
State, 2 Ohio State, 91.

2 Rex v. Hart, 1 Leach, 4th ed. 145,
2 East P. C. 978, 1 Doug. 193, Cowp.
229.

8 Rex v. May, 1 Leach, 4th ed.
192,

* Commonwealth v. Wright, 1 Cush.
46.

6 Commonwealth ». Tarbox, 1 Cush.
66; The State v. Witham, 47 Maine,
VOL. I. 20

165 ; Dana v. The State, 2 Ohio State,
91,

6 Croxdale v. The State, 1 Head,
139. See as to the distinction between
“purport ” and “effect,” Downing v.
The State, 4 Misso. 572; The State v.
Shawley, 5 Hayw. 256.

7 Commonwealth v. Sweney, 10 8.
& R. 173.

8 Rex v. Beare, 1 Ld. Raym. 414.
And see 1 Chit. Crim. Law, 234.

[229]
§ 312 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

instrument is literally recited.1_ And, if the case comes with-
in any class of the exceptions known to the law ; as, that the
instrument is lost, or is in the hands of the defendant,? or the
libel is too obscene to appear upon the records ;® the particu-
lar fact which excuses must be mentioned, or the indictment
will still be defective.

§ 811. Where the instrument is set out according to its
tenor, the proof must be very strict, or there will be held to
be a variance. Thus, William for Wm. has been adjudged
fatal. So has “not” for “nor,” though the sense was not
changed.’ But where the word in the indictment was “ re-
ceived,’’ and the word in the instrument produced was “ re-
ceivd,” the letter e only being omitted, the difference was
held not to constitute a variance. “ Mr. Justice Gould said,
he considered it as the same word, misspelt, and that there
was not a possibility of mistaking it for any other word in the
English language.” ® And where the abbreviation “ Messrs.”
was employed in the indictment, and, on proof, the writing
was found to contain the form “ Mess’, omitting the “r” ;7
also, where “ undertood” was used for “ understood ” ; 8
there was held to be no variance. And Lord Mansfield stat-
ed the true distinction ® to be, “that, where the omission or
addition of a letter does not change the word so as to make it
another word, the variance is not material.’’! Some other
matter which might seem to belong in this connection will be
found distributed in more appropriate places.

§ 812. What has been said in the foregoing sections of this
sub-title applies, in a general way, to the setting out, in the

1 Commonwealth v. Wright, 1 Cush.
46 ; Commonwealth v. Tarbox, 1 Cush.
66 ; The State v. Twitty, 2 Hawks. 248;
The State v. Bonney, 34 Maine, 383.

2 Ante, § 303; The State v. Parker,
1 D. Chip. 298; People v. Kingsley, 2
Cow. 522.

8 Commonwealth v. Tarbox, supra.

#1 Chit. Crim. Law, 235, referring
to 3 Stark. Ev. App. to p. 859.

5 Reg. v. Drake, Holt, 347-352, 2
Salk. 660, 3 Salk. 224, 11 Mod. 78,

[280]

® Rex v. Hart, 1 Leach, 4th ed. 145,
2 East, P. C. 978.

7 Oldfield’s case, 2 Russ. Crimes,
Grea. ed. 376.

8 Rex v. Beech, Cowp. 229, 1 Doug.
194, Lofft, 785, 1 T. R. 237, note, 1
Leach, 4th ed. 133.

® Taken, he says, in Reg. v. Drake,
2 Salk. 660.

10 Rex v. Beech, supra, p. 134 of
Leach.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 815

indictment, of oral language. But particular points will best
be seen in connection with our discussions of the particular
offences which can be committed by words spoken.

IX. The Form of the Allegation where the Words were writ-
ten or spoken in a Foreign Language.

§ 813. If the law requires the tenor of a written instru-
ment to be set out, and the instrument is in a foreign lan-
guage, the course is, to give, in the first place, an exact copy
of the original ; then to follow it with an English translation.
Thus: “ of the tenor following [here insert the copy of the
original, in the original language]. And which, being trans-
lated into the English language, is as follows.” The original,
without the translation, is not sufficient ; neither is the trans-
lation without the original.

X. The Allegations of Ownership, of Value, of the Person
injured, and the like.

§ 314. “ According to Lord Hale,” says Starkie,? “ there
must be a certainty in every indictment touching the thing
wherein or of which the offence is committed.2 This certain-
ty seems to consist in the special description of the persons,
places, and things mentioned in the indictment; with their
respective names, situation, extent, nature, quantity, number,
value, and ownership.” This is the matter which we are
now to consider.

§ 815. It is difficult to lay down, on this subject, such ex-
act rules as may be safely followed in every State, and with
respect to every offence, without reference to the peculiar
statute law, and the nature of the particular offence. Thus,
we have seen, that, though generally the value of an article
stolen must be alleged in an indictment for the larceny, yet,
where the stealing of a horse was, by statute, made punish-
able in a particular way, and the value of the horse did not

1 Zenobio v. Axtell, 6 T. R. 416, 429; Rex». Szudurskie, 1 Moody,
162; Rex v, Goldstein, 3 Brod. & 429;
B. 201, Russ. & Ry. 473, 7 J. B. 2 1 Stark. Crim. Pl. 2d ed. 182.
Moore, 1; Rex v. Harris, 7 Car. & P. 8 2 Hale P. C. 182.
[231]
§ 317 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

enter into the amount of punishment to be inflicted, it was
held not necessary to allege the value.1_ Here the horse was
sufficiently described to meet the general purposes of the in-
dictment, without any allegation of value, and there was no
special reason why the value should be mentioned. So also,
the indictment for arson, under the English common law,
does not set forth the value of the property destroyed; be-
cause the offence is sufficiently described, for the purposes
of identity, and the like, without any reference to value, and
the punishment is the same whether the value is greater
or less. But in Indiana the value of what is burned must
be alleged; because this is essential as respects the punish-
ment fixed by the statute.?

§316. On other grounds it was held in the latter State,
that an indictment under the statute against lotteries, for
making a lottery for the division of property, should state the
species — not the value — of the property. And Blackford,
J. explained this branch of the doctrine as follows: ‘Itisa
general rule, that whatever is essential to the gravamen of
the indictment must be set out particularly ; and we think,
that, according to that rule, the property in this case should
have been described. Besides, the word property being a
generic term, the species of property, as land, goods, &c.,
should have been stated. It has been held, that an indict-
ment on the statute against maliciously killing cattle, must
not charge the defendant with killing cattle generally ; but
that the species of cattle, as horse, cow, &c., must be stated.
There seems to be as much reason for stating the kind of
property in the present case, as the kind of cattle in the case
last cited.”’ 4

§ 317. Starkie observes: ‘Certainty in the names of per-
sons and things, the situation of places, and the names and
ownership of property, is in general substantial, and the alle-
gations concerning them must be strictly proved. Magni-
tude, quantity, number, and value, are, in some instances,

1 Ante, § 294. 8 Referring to Rex v. Chalkley, Russ.
2 Ritchey v. The State, 7 Blackf. 168. & Ry. 258.
See post, § 326. 4 Markle v. The State, 3 Ind. 535.

[282]
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 319

essential to the description of the offence, and should, it is
said, be stated with certainty, to enable the court to judge of
the heinousness of the offence, and to inflict a proportionate
punishment; but it seldom happens that a variance from
these allegations is material.” !

§ 318. The conclusion, therefore, to which we arrive, is,
that it will not be best, consulting the practical convenience
of writer and reader, to enter here, in much detail, into the
several topics indicated by the present sub-title. The details
will be more serviceable given in connection with our discus-
sion of the several offences. Yet a general view of the Eng-
lish law, to be gathered out of some extracts from Starkie,
will be helpful in this place, as an introduction to the more
specific statements which will be found in their more appro-
priate connections in later pages of this work.?

§ 319. 1. “ Of the description of persons with certainty of
names. In an indictment for murder, it is in general essen-
tial to state the name of the deceased ; and inquests, for the
want of this particularity, have frequently been holden to be
defective. And though indictments have formerly been al-
lowed which charged the defendants with suffering divers
bakers to bake, &c., against the assize, and for distraining
divers persons without cause, without specifying the manner
of those so suffered to bake or distrained upon ; yet, accord-
ing to latter authorities,* such indictments are insufficient,
for they do not enable the court to judge of the measure of
punishment which the offence calls for, neither do they ap-
prise the defendant of the facts relied upon, so that he may be
prepared for his defence; and an acquittal upon so general. a
charge would not enure to his defence upon a subsequent in-
dictment founded upon the same circumstances. So, accord-
ing to Staunford, the person murdered ought to be named,
in order to enable the party charged to vouch for his ac-
quittal.’’ ®

11 Stark. Crim. Pl. 2d ed. 182. 8 29 Hawk. P. C.c. 25, § 71.

21 Stark. Crim. Pl., 24 ed. 182- * Br. Ind. 21; 2 Roll. Ab. 80; 38
207. The notes of the author are cop- Ass. 11, 22. :
ied in connection with the text. 5 Staun. 181, b. 2,¢. 18.

20* [233]
§ 821 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

§ 820. “ Any repugnancy or inconsistency in the descrip-
tion of the person injured will vitiate the indictment; as,
where the defendant is charged with stealing the goods pre-
dicti J. S., no such person having been previously mentioned.!
For, though in civil actions the word predictus has been re-
jected as surplusage,? yet this is said to have been done by
virtue of the statutes of jeofails, which, it is well known, do
not extend to criminal cases. And it may be laid down as an
universal rule, that any variance from the name laid in the
indictment will be fatal upon the trial. The special excep-
tions to the rule, as already observed,’ rest upon necessity,
and consist of cases where a particular description would be
impracticable or highly inconvenient.”

§ 821. 2. “As to the description of the place, &c., connect-
ed with the offence. In indictments for burglary it must be
averred, that the defendant broke and entered the dwelling-
house of another ; and it is not sufficient to charge him with
breaking and entering the house simply. The house must
be laid to be the dwelling-house of the real occupier,® and a
variance in evidence would be fatal. And the same rule ap-
plies to indictments for arson.’ And in an indictment for
stealing in a dwelling-house to the amount of 40s., in order to
oust the defendant of his clergy, his surname as well as the
christian name of the person, in whose dwelling-house the
offence was committed, should be averred.? Also in an indict-
ment under the Stat. 3 Will. & M. c. 9, for stealing property
from lodgings, the name of the person, by whom the goods
and lodgings were let, must be specified.” 9

1 2 Hawk. P. C. c. 25, § 72. 7 Rex v. Breeme, 1 Leach, 4th ed.

2 3 Lev. 436; Cro. Eliz. 709. Qu.
and see tit. Amendment.

3 Ante, § 297 et seq.

# 1 Hale P. C. 550.

5 Leach, 104, 272. In Cole’s case,
Sir F. Moore, 466, the shop was stated
to be the shop of Richard, without any
surname ; yet the indictment seems to
have been deemed sufficient. Qu. et
vide Leach, 286.

6 Rex v. White, 1 Leach, 4th ed. 252 ;
Rex v. Woodward, 1 Leach, 4th ed. 253.

234]

220 ; Rex v. Spalding, 1 Leach, 4th ed.
218; 11 Co. 29; Rex v. Holmes, Cro.
Car. 376 ; Rickman’s case, 2 East P. C.
1035; 1 Hawk. P.C.c 36,§ 8; White’s
case, 1 Leach, 4th ed. 252 ; Woodward’s
case, supra; McCabes’s case, May Sess.
O. B. 1785.

8 Leach, 286. Thompson’s case, 1
Leach, 4th ed. 338.

® Rex v. Pope, 1 Leach, 4th ed.
336.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 325

§ 822. “ A conviction under the Stat. 5 Geo. 8, c. 14, for
fishing without the leave of the owner, alleged the offence to
have been committed ‘in part of a certain stream which run-
neth between B, in the parish of A, in the county of W, and
C, in the same county’; and it was quashed, because it did
not show that the intermediate course of the stream between
the two termini was in the county of W.’”’

§ 323. 8. “ As to the description of movables. It is not
allowable to aver generally, that the defendant stole the goods
and chattels of J. S. without specifying them.2 And, accord-
ing to Lord Hale, the same certainty is required in an indict-
ment for goods as in trespass for goods, and rather more cer-
tainty ; for what will be a defect of certainty in a count will
be much more defective in an indictment; and the learned
judge adds, therefore, for this matter vide title Count, et breve
per totum.2 Chattels should, it appears, be described with
certainty of their nature, quantity, or number, value, and
ownership.*

§ 824. “In the description of the thing itself, certainty to
a common intent, as it is technically called, is generally suffi-
cient ; which seems to mean such a certainty as will enable
the jury to decide, whether the chattel proved to have been
stolen, is the very same with that upon which the indictment
is founded ; and show judicially to the court, that it could
have been the subject-matter of the offence charged, and en-
able the defendant to plead his acquittal or conviction to a
subsequent indictment relating to the same chattel.”

§ 825. “ Of the description of quantity, number, and
value. It is in general necessary to ascertain the quantity
by an averment of magnitude, weight, or number. In the
case of The King v. Gibbs,> where the indictment charged the
defendant with having sold divers quantities of beer in unlaw-
ful measures, it was objected that the court could not, on ac-
‘count of the generality of the charge, form a judgment in

1 Rex v. Edwards, 1 East, 278. Playter’s case, 5 Co. 34 6; Rex v.
2 9 Hawk. P. C. c. 25, § 74, 496. Catherall, 2 Stra. 900.
3 2 Hale P. C. 183. 5 Rex v. Gibbs, 1 Stra. 497.

* Reg. v. Burnaby, 2 Ld. Raym. 900;
[235]
§ 827 PLEADING AS RESPECTS THE INDICTMENT. [800K IL

what degree to punish the offender ; and the court held, that
for this fault the indictment must be quashed.1. An informa-
tion? charged Martin Van Henbeck with selling to such a one
so many pipes of wine, not containing, as they ought to have
done, 126 gallons each ; and alleged, that, though they were
so defective, the defendant had not defalked the price accord-
ing to the want of measure, whereby he had forfeited? to the
Queen the value of the wine so defective ; and judgment was
given for the defendant, because it was not showed in how
many vessels there was a deficiency.”

§ 326. “It is questioned by Serjeant Hawkins,‘ whether
the value of the goods be essential to an indictment for tres-
pass or any other crime where the value is immaterial to the
nature of the offence, since in many ancient writs of trespass
the value of the goods is not expressed. There seems, how-
ever, to be this material distinction between writs in civil pro-
ceedings and indictments: in the former case, the damages
are to be assessed by a jury ; and, therefore, it is not so requi-
site to set out the precise value upon the face of the record ;
but, in criminal cases, the punishment is frequently inflicted
at the discretion of the court, which ought therefore to be
judicially informed of the circumstances and magnitude of
the offence.” §

§ 827. “In general, if the property be correctly described
in species, a variance from that description upon the trial, as
to weight, magnitude, number, or value, will be immaterial,
unless the variance either affect the nature of the crime as
well as the degree of the offence, or the magnitude of the
penalty. And there is a distinction between cases where to
constitute the offence the value must be of a certain amount,
but where the excess beyond that amount is immaterial, and
those where the offence, or its defined measure or punish-
ment, depends upon the quantity of that excess; for, in the
first class, if that amount be proved, which is sufficient to

1 See also 2 Roll. Ab. 81. pl. 14, 15, 49 Hawk. P. C. c. 25, § 75. See
16, 17; 8 Mod. 58; Andr. 75; Stra. Dalton, c. 181 ; Lamb, b. 4, ¢. 5, f. 496,
900 ; Playter’s case, 5 Co. 34 8. 497 ; 2 Hale P. C. 183.

2 2 Leon, 38. 3 See ante, § 315.
8 Under the Stat. 18 Hen 6, c. 17.

[236]
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 330

constitute the offence charged, a variance from the amount
averred is immaterial; but, in the second, the amount or
quantity must be proved precisely as it is laid, and any va-
riance will be fatal. Thus, in an indictment for a highway
robbery, a variance from the value laid is wholly immaterial,
for there the value of the property affects neither the nature
of the offence nor the measure of punishment.

§ 328. “In an indictment under the Stat. 12 Anne, for
stealing in a dwelling-house to the amount of 40s., the prop-
erty must be proved to be of the value of 40s., but the excess
is immaterial! So under an indictment framed upon the
statute 17 Geo. 3, c. 26, §. 7, for taking more than 10s. in the
hundred pounds for brokerage, it is necessary to prove that
the defendant took more than 10s. in the hundred pounds,
for in that the offence consists; but the quantum of the excess
is immaterial, and need not be proved as laid in the indict-
ment.? But in the case of usury, where the judgment de-
pends upon the quantum taken, the usurious contract must be
averred according to the fact ; and a variance from it, in evi-
dence, would be fatal, because the penalty is apportioned to
the value.®

§ 829. “ Ownership. The name of the owner cannot be
dispensed with except in particular instances, which are ex-
ceptions, from the necessity of the case. The indictment
must either state the name of the owner of the goods, or ac-
count for the omission, by averring that the proprietor was
unknown.* And, therefore, an indictment charging that the
defendant found a dead man, and feloniously stole two coats,
without adding ‘the property of some person unknown,’ is
bad.’’5

§ 330. “In general, an inaccuracy or repugnancy in the
allegation, or variance in the proof of ownership, will vitiate
the indictment. Thus, as before observed, if it be alleged that
the defendant stole the goods predicti J. S., no such person

1 Rex v. Gillham, 6 T. R. 265. 8 Rex v. Gillham, 6 T. R. 265.
2 So in the case of extortion, Rex. 4 See ante, § 297 et seq.
v. Burdett, 1 Ld. Raym. 149 ; and Reg. 5 2 Hale P. C. 181.
v. Baines, 2 Ld. Raym. 1265.
: [237]
§ 333 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

having been previously named, the indictment will be vicious.!
So if a burglary be laid with intent to steal the goods of J.
Wakelin, the indictment will not be supported by proof of a
burglary, &., with intent to steal the goods of J. Davis.”

§ 331. “And, with respect to ownership, it may be observed
generally, that the name of the owner of the property, in rela-
tion to which the offence is committed, should be truly stated.
Thus, in an indictment for cutting trees, &c., under the Stat.
6 Geo. 3, c. 36, it is necessary to specify the owner’s name.?
And, as has already been seen, the same particularity is ne-
cessary in indictments for burglary, stealing in a dwelling-
house, arson, and in all larcenies.” 4

§ 332. The doctrines thus stated by Starkie are those
which now prevail in our States; subject to some modifica-
tions, in some of the States, made by direct statutory provis-
ion, or arising indirectly out of legislation, as already ex-
plained.® .

XI. Disjunctive and Conjunctive Allegations.

§ 333. It is an established rule, in respect to the statement
of the offence in the indictment, “ that,” in the language of
Chitty, “it must not be stated in the disjunctive, so as to leave
it uncertain what is really intended to be relied upon as the
accusation.’ Thus an indictment stating, that the defendant
murdered or caused to be murdered, or that he murdered or
wounded, is bad because uncertain. So to say, that the de-
fendant forged, or caused to be forged, an instrument ;° that
he erected, or caused to be erected, a nuisance ; 1 that he car-
ried and conveyed, or caused to be carried and conveyed, two
persons having the small pox, so as to burden the parish of
Chelmsford ;" is not sufficiently positive.” 2

1 2 Hawk. P. C. c. 25, § 92. tam. qu. 7 2 Hawk. P. C. c. 25, § 57; 5 Mod.
2 Jenks’s case, 2 East P. C. 514, 137, 138, &e.

2 Leach, 4th ed. 774. 8 Id. ibid.
8 Rex v. Patrick, 1 Leach, 4th ed. 25 Mod. 187,1 Salk. 342, 371; 8
253. Mod. 82 ; Stra. 747, 900 ; 1 Bur. 399.
4 Extracted, at different places, from 19 2 Stra. 900; 2 Sess. Cas. 25.
1 Stark. Crim. Pl. 2d ed. 182 - 207. 1 1 Sess. Cas. 307.
5 Ante, § 315. 2 Tn like manner, it is fatal, in an ine
6 1 Chit. Crim. Law, 2381. dictment for arson, to allege, that the

£2381
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 334

§ 334. A common application of this doctrine occurs, as
already observed,! in indictments upon statutes. There, if a
statute makes it a crime to do this, or that, or that, mention-
ing several things disjunctively, the indictment may, indeed,
as a general rule, embrace the whole in a single count; but
it must use the conjunctive ‘‘and,” where “or”’ occurs in the
statute, else it will be defective as being uncertain.? Thus,
where an indictment, drawn according to this rule, alleged
that the defendant “ did play and bet at cards for money, at
a game of poker, whist, faro, seven-up, three-up, and other
games played with cards,” following the words of the statute,
except that it substituted “and” for “or,” the court held it
to be good, and Lumpkin, J. observed: * True, the offence
is constituted by playing and betting at any one of them. But
we apprehend, that playing and betting at the whole, at the
same sitting and between the same parties, would constitute
but a single offence.” ® Yet, on the other hand, the indict-

defendant “did burn or cause to be
burned.” People v. Hood, 6 Cal. 236.
So it is insufficient to allege that the
defendant “did take or cause to be
taken.” The State v. O’Bannon, 1
Bailey, 144."

1 Ante, § 191, 234,

2 The State v. Meyer, 1 Speers, 305;
The State v. Helgen, 1 Speers, 310;
The State v. Slocum, 8 Blackf. 315;
Keefer v. The State, 4 Ind. 246; The
State v. Colwell, 3 R. I. 284; Rex. v.
North, 6 D. & R. 143.

8 Wingard v. The State, 13 Ga. 396,
898. Two or three other illustrations
of this matter will be useful. Thus,
in an indictment, containing but one
count, founded on the Massachusetts
statute of 1825, which provides, that,
“if any person shall sell, or offer for
sale, or shall advertise or cause to be
advertised for sale,” any lottery ticket,
“he shall forfeit,” &c., it was alleged,
that the defendant “ did unlawfully of-
fer for sale, and did unlawfully sell,
&c. ; upoh demurrer on account of du-
plicity, the indictment was held to be

sufficient, since offering to sell and ac-
tually selling were together but one
offence. Said Wilde, J.: ‘It is true,
that an offer to sell without selling,
a ticket, is an offence by the statute ;
but an offer to sell and actually selling
is but one offence. A sale, ex vi termini,
includes an offer to sell.”” Common-
wealth v. Eaton, 15 Pick. 273. In
Arkansas it has been laid down, that
the legislature did not, by the use of the
terms “obstruct or resist” the execu-
tion of process, intend to create two
distinct and different offences; hence
an indictment charging, that defendant
did obstruct and resist the execution
of process would not be double, and
charging either obstruction or resist-
ance would be good, the proof corre-
sponding with the allegation. Slicker
v. The State, 13 Ark. 397. Likewise,
in Indiana, to use the language of the.
court: “ Disturbing a religious society,
or the individual members theveof, is
made indictable by the statute. The
indictment in the same count charges
that the defendant did both; and, if

[239]
§ 336 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

ment may equally well charge what comes within a single
clause of the statute, and still it embraces the complete pro-
portions of an offence.!

§ 885. Doubtless the doctrine of the last section has its
limits, though it may not be easy to say precisely what they
are. In Mississippi, a statute provided, that “it shall not be
lawful for any person to sell or retail any vinous or spirituous
liquors in less quantities than one gallon, nor suffer the same
or any part thereof to be drank or used in or about his or her
house” ; and the court, in construing this statute, held, that
‘the second member of the section makes it unlawful for the
person selling the spirits to suffer the same to be used about
his house, whatever may be the quantity which is:sold” ;
thereby creating an offence distinguishable, in a marked par-
ticular, from the offence or offences designated by the first
member of the statute. Therefore it was adjudged, that a
count covering the entire section was bad for duplicity.”

§ 836. There are some things to be observed by way of
caution, in those cases wherein the law permits the various
disjunctive clauses of the statute to be proceeded upon at
once, under the conjunctive form. Thus, a statute made it
an offence to sell, without licence, any “ spirituous or intoxi-
cating liquor”; and it was held, that an indictment in the
alternative form was bad, even after a plea of nolo contendere.8
But when another indictment used the conjunctive form,
“spirituous and intoxicating liquors,” this was held indeed
to be good, yet it was also held to require the prosecutor to
prove the liquor to be both spirituous and intoxicating, thus
taking on himself a useless burden in respect of the evidence.$

upon his trial he had been found guilty
of either of the offences so charged,
it would have been sufficient.” The
State v. Ringer, 6 Blackf. 109, opinion
by Sullivan, J. “It is the usual prac-
tice,” says Starkie, “to allege offences
cumulatively, both at common law
and under the description contained in
penal statutes; as, that the defendant
published and caused to be published
acertain libel, that he forged and caused

[240]

to be forged,” &c. 1 Stark. Crim. Pl.
2d ed. 246 et seq.

1 The State v. Colwell, 3 R. I. 284.

2 Miller v. The State, 5 How. Missis.
250. And see, for a case in some meas-
ure parallel, Rex v. Jackson, 1 Leach,
4th ed. 267, 2 East P. C. 419.
- 8 Commonwealth v. Grey, 2 Gray,
501.

* Commonwealth v. Livermore,. 4
Gray, 18; ante, § 234. In Common-
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 887

So where a statute employs the words “ warrant or order,”
in describing the instrument of which forgery may be com-
mitted, the indictment may describe the instrument, if the
pleader chooses, as a “ warrant and order’’ ;! but, in such a
case, the proof must establish, that it is both.? On the other
hand, where, in North Carolina, a statute made it indictable
“if any free negro, mulatto, or free person of color shall wear,
or carry about his or her person, or keep in his or her house,
any shot-gun, musket, rifle, pistol, sword, dagger, or bowie
knife, unless,” &c.; and an indictment charged, in the same
count, the carrying of “a musket, a rifle, and a shot-gun”’;
proof of the unlawful carrying of either of the articles was
held to be sufficient to justify a conviction.®

§ 337. In Virginia, a statute making it indictable to sell,
without license, “rum, wine, brandy, or other spirituous
liquors,” an indictment using the words “ or other spirituous
liquors,” was held to be good ;* contrary, as the reader per-
ceives, to the general doctrine. In harmony with the general
doctrine, it was held in Alabama, where the statute made it
indictable to obstruct a public way “ by fence, bar, or other
impediment,” that an indictment alleging the obstruction to
be “by a fence, bar, or some other impediment,” was fatally
defective.®

wealth v. Grey, supra, Metcalf, J. said :
The defendant should be charged,
“either with selling spirituous liquor,
or with selling intoxicating liquor, or
-with selling spirituous liquor and in-
toxicating liquor. The latter form is
usually adopted; and it is well settled
that it is a proper form, and that proof
of the defendant’s having sold either
spirituous liquor or intoxicating liquor,
as well as proof of his having sold
both, will support the indictment.” p.
503. Referring to 1 East P. C. 402;
Angel v. Commonwealth, 2 Va. Cas.
231; The State v. Price, 6 Halst. 203.

1 The State v. Jones, 1 McMullan,
236; The State v. Holley, 1 Brev. 35.
See also Hobbs v. The State, 9 Misso.
845.

VOL. I. 21

2 Reg. v. Gilchrist, Car. & M. 224;
Rex v. Crowther,5 Car. & P. 316;
Reg. v. Williams, 2 Car. & K.51. See
The State v. Vermont Central Rail-
road, 28 Vt. 583.

8 The State v. Locklear, Busbee,
205. The court seemed still to regard
the indictment as objectionable.

* Morgan v. Commonwealth, 7 Grat.
592.

5 Johnson v. The State, 32 Ala. 583,
In this case, Stone, J. observed : “ The
clause we are considering, in § 1176 of
the code, is similar in its principle to
our old statute against retailing. That
statute was construed in Raiford’s
case, 7 Port. 101. It prohibited the
sale, in quantities less than a quart,
of ‘rum, brandy, whiskey, tafia, or other

[241]
§ 338 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

§ 888. The rule we are considering does not absolutely
forbid the use of the word ‘‘or” in an indictment ; for there
are circumstances in which it is evidently proper. Said Met-
calf, J.:1 “* When the word ‘or’ in a statute is used in the
sense of ‘ to wit,’ that is, in explanation of what precedes, and
making it signify the same thing, a complaint or indictment,
which adopts the words of the statute, is well framed. Thus
it was held,? that an indictment was sufficient which alleged,
that the defendant had in his custody and possession ten
counterfeit bank bills or promissory notes, payable to the
bearer thereof, and purporting to be signed in behalf of the
president and directors of the Union Bank, knowing them to
be counterfeit, and with intent to utter and pass them, and
thereby to injure and defraud the said president and direct-
ors; it being manifest, from Stat. 1804, c. 120, § 2, on which
the indictment was framed, that ‘ promissory note’ was used
merely as explanatory of ‘bank bill,’ and meant the same
thing. So%an information was held sufficient which alleged,

spirituous liquor.’ Raiford was indicted
for selling ‘spirituous liquors,’ without
specifying the kind of liquor. This
eourt held the indictment bad. The
principle of that decision is, that when,
in a statute creating an offence, par-
ticular acts or means are specified
and prohibited; and such particular
specified acts or means are followed by
a mere comprehensive, generie term,
and such generic term be immediately
preceded by the words ‘or other,’ then
the specific acts or means, and the ge-
neric term, cannot be construed as speci-
fying and defining different offences of the
same character.- The specified acts or
means are given as express examples ;
always, and per se, within the statute.
The generic term includes other acts or
means, ejusdem generis, In pleading, it
is not enough to aver the existence -of
such other acts or means, in the language
‘of the statute ; but the pleadet must, in
addition to the statutory, generic phrase,
specify the acts or means under a vide-
licet. Example: Under our former stat-

[242]

ute against retailing, if the pleader
wished to proceed for the sale of ardent

‘spirits other than ‘rum, brandy, whis-

key, or tafia,’? — these being all the
kinds specified in the statute, — he
should have averred that the defendant
sold spirituous liquors, to wit, gin, §c., or
words of similar import... .. This
indictment, then, charges upon the de-
fendant the commission of one or mote
of three alternative acts, two of which
are sufficiently averred, and one de-
fectively. It, then, fails to charge pos-
itively, that he committed an offence for
which he could rightfully be punished.
Every word of the indictment may be
true, and yet the defendant not guilty
of any offence punishable by our law.
See Cochran v. The State, 30 Ala. 542,”

p. 584, 585.

1 In Commonwealth v. Grey, 2 Gray,
501.

2 Brown v. Commonwealth, 8 Mass.
59.

8 The State v. Gilbert, 18 Vt, 647.
CHAP. XIX.] THE SUBSTANTIAL AVERMENTS. § 340

that the defendant feloniously stole, took, and carried away a
mare ‘of a bay or brown color’; the court saying, that the
colors named in the information were the same.” !

§ 339. So likewise there is a difference between charging a
duty, as foundation on which to set forth a breach, and alleg-
ing the breach itself. The former may be in the disjunctive ;
and, if the truth of the law is so, it ought to be. Thus, where
a statute requires that a bell be rung, or a whistle blown, on
a train of cars; this duty is well laid, in an indictment for
the breach of it, in the disjunctive.”

§ 340. There may be circumstances in which the disjunc-
tive part of the indictment can be got rid of as surplusage.®
Thus, in Connecticut, where a complaint for selling spiritu-
ous liquors alleged, that the defendant, “by himself or by his
agent,” made the sale, the court rejected the words “ by him-
self or by his agent,” as merely redundant, and held the
pleading to be sufficient.‘

1 See also, as sustaining the doctrine § See ante, § 228, et seq.
of this section, The State v. Ellis, 4 4 The State v. Corrigan, 24 Conn.
Misso. 474. 286.
2 The State v. Vermont Central Rail-
road, 28 Vt. 583.
[243]
§ 342 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

CHAPTER XX.

INDICTMENTS UPON STATUTES.

Sect. 341. Introduction.
342-349. How to distinguish whether on Statute or at Common Law.
350-355. Concluding part of the Statutory Indictment.
356 - 368. Rule of following the Words of the Statute.
369-374. Exceptions of expanding the Allegation beyond the Words.
375 -385. What the Indictment must negative.

§ 841. TurovucHovt the preceding chapters of the present
Book, the discussion of the indictment has been general, re-
lating as well to the proceeding upon statutes as at the com-
mon law. There are, however, some rules concerning the
indictment upon statutes, requiring special consideration
here. We shall divide the matter as follows: I. How to dis-
tinguish whether the Indictment should be drawn upon a
Statute, or at the Common Law; II. Concerning the Con-
cluding Part of the Statutory Indictment; III. The Rule of
following the Words of the Statute; IV. The Exceptions of
expanding the Allegation beyond the Statutory Words; V.
What the Indictment must negative.

I. How to distinguish whether the Indictment should be drawn
upon a Statute, or at the Common Law.

§ 842. The plain proposition under this sub-title is, that,
if the offence is at the common law, the indictment must be
drawn according to the common law; if it is an offence un-
der a statute, the indictment must be drawn upon the stat-
ute. In the author’s work on the Criminal Law, the reader
will find, in connection with the general subject of the repeal
of laws effected by statutes, such views as will stand in the

stead of an extended exposition of doctrines under the pres-
[244]
CHAP. XX.] INDICTMENTS UPON STATUTES.

§ 344

ent sub-title1 ‘Let us here look, however, at some rules,
chiefly as laid down by Starkie; premising, that, except as
they will be corrected and expanded in the following sections,
they are good law with us, and as applicable in our own coun-
try as in England.

§ 348. First. “If an offence did not exist at common law,
but is entirely created by a statute, it seems, from all the au-
thorities, to be necessary to aver the offence to have been
committed contra formam statutt.””? It requires no illustra-
tion to show the truth of this proposition ; for, plainly, if the
criminal act is not indictable except by force of a statute, the
indictment must be drawn on the statute. Starkie adds:
“The rule is the same where an offence at common law is
made an offence of a higher nature by a statute ; as, where a
misdemeanor is made a felony, or a felony treason.”? The
latter branch of this doctrine is unquestionably sound in those
localities where treason, felony, and misdemeanor are kept
distinct from one another, as at the common law, in respect
of the methods of proceeding against them; but, where in
this respect they have been substantially merged, we may
doubt whether the doctrines of the next two sections do not
apply.

§ 844. Secondly. “ Where the offence existed at common
law, but the offender is, under particular circumstances, de-
prived by a statute of some benefit to which he was entitled at
common law, the averment is unnecessary ’’; that is, the in-
dictment need not be drawn upon the statute ; ‘for the stat-
ute does not inflict a new punishment, neither does it alter the
nature of the offence.” > He adds, however, what is not very
material, as the reader will see by and by, that “the aver-

1 Crim. Law, I. § 194 et seq.

21 Stark. Crim. Pl. 2d ed. 228.
And see, as sustaining this proposition,
The State ». Ladd, 2 Swan, Tenn. 226 ;
Chapman » Commonwealth, 5 Whart.
427 ; Warren v. Commonwealth, 1 Barr,
154 ; Rex v. Pearson, 5 Car. & P. 121.

8 Referring to 2 Hawk. P. C. ¢. 25,
$116; Rex ». Clerk, 1 Salk. 370. The
doctrine of the text is supported more

21*.

by the strength of Mr. Starkie’s name
as an authority, than by these authori-
ties which he cites. See, as sustaining
the text, The State v. Gove, 34 N. H.
510; Rex v. Pim, Russ. & Ry. 425.

* See ante, § 288 et seq.

6 1 Stark. Crim. Pl. 2d ed. 229 ; re-
ferring to 2 Hale P. C. 190; 1 Saund.
135 a, note.

[245]

a
yeh

oaths 2 aie
eed ' \
§ 345 PLEADING AS RESPECTS THE INDICTMENT.

[BOOK IL.

ment in such case would not be improper; for, though the
statute does not inflict a new penalty, it takes away an old
privilege. So, under Stat. 21 Jac. 1, c. 27, it was holden to
be unnecessary to. conclude against the form of, the statute ;
for the act created no new crime, but only introduced a new
rule of evidence.” 2

§ 845. Thirdly. The next of Starkie’s propositions is be-
lieved to be diametrically wrong. It is: ‘* Where the offence
existed at common law, and an additional punishment is in-
flicted by the statute, the offender, if this averment be omit-
ted,’ — that is, if he is not indicted under the statute, —
“is liable to the common law punishment, but not to the
new penalty under the statute.” ° Now, the doctrine of the
courts, at least of the present day, is, that it is the offence,
and not the punishment, which furnishes the ground for the
indictment; therefore, when statutes prescribe or modify
the punishment for crimes at the common law, they do not
thereby create the crimes, and the indictment may be at the
common law, while the court will inflict the statutory pun-

ishment.*

12 Hale P. C. 190; Page v. Har-
wood, Aleyn, 43, Sty. 86; 1 Ld. Raym.
150; 1 Salk. 212.

22 Hale P. C.190, 288; 2 Hawk.
P. C. c. 46, § 43; J. Kel. 36.

8 1 Stark. Crim. Pl. 2d ed. 229, re-
ferring to 2 Hale P. C. 199 ; 1 Saund.
132; 2 Rol, Ab. 82. On looking into
the authorities here cited by Starkie, I
find a dictum of Lord Hale, given under
an “it seems,” at p. 191, sustaining his
text. Looking into 1 Saund. 6th ed.
135, I find the following in a note,
which gives the true doctrine: “ Where
a statute merely increases the, punish-
ment of an offence, sentence may be
passed for the increased punishment,
though the indictment does not con-
clude contra formam, &c.; for that con-
clusion is. only necessary when, a stat-
ute creates an offence, not when it reg-
ulates the punishment. Rex v. Chat-
burn, 1 Moody, 403; Rex v. Rush-

[246]

worth, 1 Moody. 404; Rex »v. Berry,
1 Moody & R. 463. Accordingly, in

- order to warrant a sentence of trans-

portation for life after a previous con-
viction for felony, the indictment need
not conclude contra formam, &c. Reg.
v. Blea, 8 Car. & P. 735. An indict-
ment for a common felony committed
abroad, but triable here by statute, need
not conclude contra formam, &c. Rex
v. Sawyer, Russ. & Ry. 294, Car. Crim.
Law, 3d ed. 103, 2 Car. & K. 101.” I
will here add, that according to Reg. v.
Serva, | Den. C. ©. 104, 2 Car. & K.
53, an indictment preferred at. the as-
sizes, under the Stat. 7 & 8 Vict. c. 2,
for a. crime committed on the high
seas, need not conclude contra formam
statuti.

* Crim. Law, I. § 203, 204 ; The State
v. Stedman, 7 Port. 495 ; The State v.
Burt, 25 Vt, 373; Reg. v. Williams, 14
Law. J.,N. 8. M..C, 164 ; Bennett v, The
OHAP. XX. ] INDICTMENTS UPON STATUTES. § 347

§ 346. Fourthly. If the offence existed at the common law,
yet a statute prescribes a particular punishment to be inflict-
ed on those who shall commit it under circumstances men-
tioned, or with particular aggravations mentioned, then, in
matter of principle, when the aggravated offence thus cre-
ated out of the old one is made the subject of an indict-
ment, the indictment should be drawn on the statute, setting
out the offence as at the common law, and then adding the
aggravations, with the conclusion “against the form of the
statute.” And though the authorities may not be fully clear
on this point, it is believed that the doctrine as thus stated is
sufficiently sustained by them.!

§ 347. Fifthly. “Where the offence existed at common
law as described by a statute, such as the Stat. 25 Edw. 3,
de proditionibus, the averment may be either used or omit-
ted’ ;? that is, the indictment may be either on the statute,
or not, at the pleader’s option. In the language of Blackford,
J., “If an offence at common law be prohibited by statute,
this takes not away the indictment at common law.” ®

State, 3 Ind. 167; Chiles v. Common-
wealth, 2 Va. Cas. 260.

1 In the cases which I have before
me, the doctrine of the text, as regards
the conclusion against the form of the
statute, is rather implied than asserted.
Thus, a defendant was tried before Ers-
kine, J. for burglary, on an indictment
in the common law form ; and, as Stat.
7 Will. 4 & 1 Vict. c. 86, had defined the
hours of the night between which the
breaking and entering should be deemed
burglary, it was objected for the pris-
oner that the indictment was insufficient,
because it did not lay the offence as
against the statute. But the learned
judge overruled the objection, observ-
ing: “I am of opinion, that, this statute
not having altered the offence, and not
having prohibited the offence, but mere-
ly having reduced the punishment, it is
not necessary that the indictment should
conclude ‘ against the form of the stat-
ute” ” Reg. v. Polly, 1 Car. & K. 77,
81. An assault is an offence at the

common law; but, where a statute in-
flicts a heavier punishment for an as-
sault aggravated by the intent to kill,
it seems to be rather implied than held,
that the indictment must be drawn upon
the statute. Reg. ». Nelmes, 6 Car. &
P. 347. But, if so, still the indictment
must contain all the elements essential
in the indictment for the common law
assault, with the additional allegation
of the particular statutory intent. Beas-
ley v. The State, 18 Ala. 535. See
likewise, The State v. Burt, 25 Vt.
373, which was an indictment for an
assault upon an officer. See also the
State v. Morse, 1 Greene, Iowa, 503.

21 Stark. Crim. Pl. 2d. ed. 229, re-
ferring to 2 Hale P. C. 189; adding,
but under the Stat. 39 Geo. 3, «. 85,
although it is declaratory, it is necessa-
ry toindict specially, see Rex v. Jones,
2 East P. C. 576.

3 Fuller v. The State. 1 Blackf. 63,
65.

[247]
§ 349 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

§ 348. Sixthly. In all cases where the statute prescribes
the punishment for a common law offence, the indictment
may be drawn upon the statute, rather than at the common
law, if the pleader prefers. But this proposition refers mere-
ly to the form of the conclusion ; for, in all such cases, the
offence must be set out fully, according to the requirements
of the common law.? And the doctrine itself becomes unim-
portant, by reason of what is laid down in the next section.

§ 349. Seventhly. ‘“‘ Where an offence, as described in the
indictment, is punishable at common law only, and yet the
indictment avers it to have been done against the form of the
statute, it seems to have been doubted whether the indictment
was good at common law. Lord Hale was of opinion, that,
if the offender were not brought within the words of the stat-
ute, if the indictment concluded contra formam, it should be
quashed, though an offence be described which is indictable
at common law.”® Starkie adds: “ But, in numerous in-
stances, the conclusion has been holden to be mere surplus-
age.”* And this latter doctrine is now firmly established.®
Therefore, if the pleader doubts whether the indictment
should be at the common law or on a statute, let him frame
it so as to come within the requirements of the common law,
and likewise within the terms of the statute, concluding
against the form of the statute; then, if the court deems it
should be at the common law, the conclusion will do no
harm, being regarded merely as surplusage.

1 Burton’s case, Cro. Eliz. 148; The
State v. Ladd, 2 Swan, Tenn. 226;
Rex v. Bethell, 6 Mod. 17. And see
The State v. Hoyle, 6 Ire. 1; Davis
v. The State, 3 Har. & J.154; Com-
monwealth v. Hoxey, 16 Mass. 385.

2 Ante, § 346 and note.

8 1 Stark. Crim. Pl. 2d ed. 229, 230.

* Referring to Say. 225 ; 2 Hawk. P.
C. c.25, § 115,116; Aleyn, 43; 2 Hale
P. C. 191; 2 Salk, 212; Cro. Eliz.
231 ; Rex v. Mathews, 2 Leach, 4th
ed. 584, 5 T. R. 162; Reg. v. Wigg,

[248]

2 Ld. Raym. 1163; 4 T. RB. 402; 1
Saund. 135, note ; 1 Ld. Raym. 149.

5 The State ». Buckman, 8 N. H.
203 ; Cruiser v. The State, 3 Harrison,
206; Gregory v. Commonwealth, 2
Dana, 417; The State v. Walker, 2
Taylor, 229; Southworth v. The State,
5 Conn. 325 ; The State v. Phelps, 11
Vt. 116; The State v. Wimberly, 3
McCord, 190; Vanderworker v. The
State, 18 Ark, 700; The State », Ken-
nerly, 10 Rich. 152; The State v. Gove,
34. N. H. 510.
CHAP. XX.]

INDICTMENTS UPON STATUTES. § 351

II. Concerning the Concluding Part of the Statutory In-
dictment.

§ 850. Much of what might properly come under this sub-
title was anticipated under our last. Where the common
law rules prevail, every indictment upon a statute must con-
clude with the words, “against the form of the statute in
such case made and provided,” or “ contrary to the form,”
&c., or with some other words of equivalent import.) An in-
dictment which does not thus conclude, will not sustain a
conviction, though the objection be not taken till after ver-
dict, or a plea of guilty, or of nolo contendere?

§ 851. What form of words will be accepted as substitutes
for the more technical ones mentioned in the last section can
only be inferred by considering what has been already held.
It has been adjudged not to be sufficient to allege, that the
statutory offence was committed “against the law in such
case provided,”’® or “in contempt of the laws of the United
States of America.” * Where the words “act of assembly ”
are used instead of the word “statute,” the conclusion is
good.6 And the conclusion “contrary to the true intent
and meaning of the act of the Congress of the United States,
in such case made and provided,” was adjudged sufficient by

1 McCullough v. Commonwealth,

Hardin, 95; Reg. v. Pearson, 5 Car. &
P. 121; People v. Stockham, 1 Parker
C. C. 424; Commonwealth v. Spring-
field, 7 Mass. 9; 1 Chit. Crim. Law.
290. It has been even held, that a
complaint for the violation of a by-law
of a city, though it conclude against
the form of the by-law in such case
made and provided, is not sufficient,
unless it conclude also against the form
of the statute. Commonwealth v».
Gay, 5 Pick. 44; Commonwealth o.
Worcester, 3 Pick. 462, 475; Stevens
v. Dimond, 6 N. H. 330. It seems to
me, that, on principle, this doctrine
must be limited to those cases in which
the by-law is made pursuant to the
statute ; it could not, for instance, be
applicable to a by-law made, as in

many circumstances in England, pur-
suant to immemorial usage.

2 Warren v. Commonwealth, 1 Barr,
154; Reg. v. Radcliffe, 2 Moody, 68, 2
Lewin, 57; Rex v. Pearson, 1 Moody,
313; Commonwealth v. Northampton,
2 Mass, 116; Commonwealth v. Coo-
ley, 10 Pick. 37 ; Commonwealth v.
Caldwell, 14 Mass. 330.

3 Commonwealth v. Stockbridge, 11
Mass. 279. And see Huff v. Common-
wealth, 14 Grat. 648. Butsee Hudson
v. The State, 1 Blackf. 317.

4 United States ». Andrews, 2 Paine
C. C. 451.

5 The State v. Tribatt, 10 Ire. 151 ;
The State v. Sanford, 1 Nott & McC.
512; Trimble ». Commonwealth, 2 Va.
Cas. 143.

[249]
§ 353 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

Story, J., who said: “ All that is required is, that some phrase
should be used which shows that the offence charged is found-
ed on some statute.” So the conclusion, “ against the stat-
ute,” omitting the words “form of the,” has been deemed
sufficient.?

§ 852. Where, in South Carolina, an indictment was
founded on a statute enacted while the State was a British
colony, and the conclusion was, “ contrary to the act of as-
sembly of the said State in such case made and provided,”
this was held to be good.’ Ifa statute of one of our States
makes certain enumerated British statutes “ of force ” in the
State, “ the usual and correct conclusion,” it was said in the
South Carolina court, “ would be, ‘contrary to the form of
the statute in such case made and provided, and made of
force in this State.’ ’’ Therefore, where the conclusion act-
ually inserted in the indictment was, “ against the act of as-
sembly in such case made and provided,” it was held to be
inadequate.* But, suppose the statute of the State is entitled
“an act for putting in force” certain British statutes, and
then it goes on to enact a particular British statute nearly
verbatim, this does not justify the pleader in drawing the in-
dictment on such a statute as on a British statute of force in
the State: it is the ordinary case of a State statute; and,
where the conclusion was, “ against the British statute made
of force in this State,” it was held to be vicious.5

§ 353. If the indictment is drawn on two or more statutes,
the conclusion must be in the plural; namely, “ contrary to
the form of the statutes,” &c. ;° while, if it is on one statute,

1 United States ». Smith, 2 Mason, The State v. Hunter, 8 Blackf. 212;
148, 150. Tevis v. The State, 8 Blackf. 303; The
2 Commonwealth ». Caldwell, 14 State v. Muse, 4 Dev. & Bat. 319;
Mass. 330; The State ». Toadvine, 1 The State v. Jim, 3 Murph. 3. Con-

Brev. 16. tra, The State v. Dayton, 3 Zab.
8 The State ». Turnage, 2 Nott & 49; Carter ». The State, 2 Ind. 617 ;
McC. 158. The State v. Wilbor, 1 R. I. 199.
‘ The State v. Sanford, 1 Nott & Chitty says :.‘ It was formerly holden
McC. 512. by several authorities, that, where an
5 The State v. Holley, 1 Brey. 35, 2 offence is prohibited by several inde-
Bay, 262. pendent statutes, it was necessary to

® Francisco v. The State, 1 Ind. 179; conclude in the plural ; Cro. Jac. 142;
[250]
CHAP. xx.] INDICTMENTS UPON STATUTES.

§ 354

the conclusion is in the singular — “ contrary to the form of
the statute,” &c.1 An error in this respect is fatal to the in-
dictment ; rendering it ill even after verdict, the same as the
omission of the conclusion altogether.”

§ 354. Still, there are some nice questions respecting the
application of this doctrine. Applying here some of the prop-
ositions which we have already considered,’ we find, that, as
a question of principle, if the offence is created by one stat-
ute, and the punishment is provided, or modified, or changed
by another, the conclusion may be either in the singular or
plural form at the pleader’s option.* Still there are cases,
perhaps creating a preponderance of authority, in which it is
held that in these circumstances the conclusion must be in

the plural.6

2 Leon. 5; Aleyn 49, 50; 2 Bulst. 258 ;
but now the better opinion scems to be,
that a conclusion in the singular will
suffice, and it will be construed to refer
to that enactment which is most for the
public benefit. 1 Hale P. C. 173; Sid.
348; Owen, 135 ; 2 Leach, 827 ; Dyer
347 a; 4 Co. 48; 2 Hawk. P. C.c. 25,
§117. And where a statute is discon-
tinued, or expires by effluxion of time,
and is revived by another, and also
where a temporary act is made perpet-
ual, the conclusion in the singular will
be sufficient, 2 Hale P. C. 173; 1
Lutw. 212; 1 Saund. 185, note; 2
East P. C. 601; though it is said to
conclude in the plural. 2 Hale P. C.
173; 2 Hawk. P. C. ¢. 25,§117. So,
if a statute qualify the manner of pro-
ceeding upon a former act, without al-
tering the substance of its purview, the
indictment against the form of the stat-
ute will bevalid. Yelv. 116; Cro. Jac.
187; 2 Hawk. P. C. ¢. 25, § 117; Bac.
Ab. Indictment, H. 5; Burn Just. In-
dictment IX.” 1 Chit. Crim. Law,
291.

1 The State v. Sandy, 3 Ire. 570 ;
The State v. Abernathy, Busbee, 428 ;
The State ». Cassel, 2 Har. & G. 407.
Contra, Townley v. The State, 3 Har-

If the offence and penalty are declared by dif-

rison, 311; and see United States v.
Gibert, 2 Sumner, 19, 89.

2 The State v. Sandy, supra; The
State v. Muse, supra.

3 Ante, § 345, 348.

* Crim. Law, I. § 203, 204.

5 Rex v. West, Owen, 134 ; King 2.
The State, 2 Ind. 523 ; The State ».
Moses, 7 Blackf. 244 ; yet an earlier de-
cision in the same State holds the sin-
gular form to be sufficient, Strong v.
The State, 1 Blackf. 193 ; and a still
later decision confirms the earlier one,
Bennett v. The State, 3 Ind. 167. In
New York it was laid down, that, al-
though two statutes are set forth in an
indictment, it is not necessary the con-
clusion should be in the plural form,
where the offence is wholly created by
one of the statutes, and the second
merely makes some alterations in the
first, without affecting the offence. Yet
the judge added: “ Such a conclusion
is sometimes necessary where one stat-
ute is in relation to another, as where
one creates the offence and another
fixes the penalty.” Kane ». People,
8 Wend. 208, 212. “If a statute re-
fers to «a former statute, and adopts
and continues the provisions of it, the
indictment must conclude against the

[251]
§ 356 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

ferent sections of the same statute, the conclusion is properly
in the singular. And in North Carolina it was even held,
that, where an indictment is founded upon two chapters of
the statutes of the same year, the conclusion in the singular
number is sufficient; all the acts passed at the same session of
the legislature being considered but one statute.2_ In Eng-
land, when the indictment was in Latin, and numerous ab-
breviations were used, the pleader avoided every such diffi-
culty as this section presents, by concluding the indictment
contra formam stat.; the abbreviation stat. standing for sta-
tuti or statutorum, as might be found necessary to make the
proceeding good.?

§ 855. In some of our States, the conclusion, against the
form of the statute or statutes, has been rendered unnecessa-
ry by express legislative enactment; in some other States,
the same result has been reached indirectly by legislation.
Of the latter class may be mentioned Kentucky, where “ the
substance ” of the enactment is, says the court, “‘ that an in-
dictment is sufficient if it shows intelligibly the offence intend-
ed to be charged ; and that it shall not be deemed insufficient
by reason of any defect which does not tend to the prejudice
of the substantial rights of the defendant on the merits.” By
construction of which enactment it is held, that the conclu-
sion we are considering need not be employed.

II. The Rule of following the Words of the Statute.
§ 856. Says Chitty ®: “It has long been perfectly settled,
that there is no necessity in any indictment or information

form of the statute.” 1 Saund. 6thed. addition to some of the foregoing cases,

135 b, note. If one statute subjects an
offence to a pecuniary penalty, and a
subsequent statute makes it felony, an
indictment for the felony concluding
against the form of the statute (in the
singular number only) is right. Rex
v. Pim, Russ. & Ry. 425. And see
Rex. v. Collins, 2 Leach, 4th ed. 827;
The State v. Berry, 4 Halst. 374 ; Rex
v. Morgan, 2 East P. C. 601; United
States v Gibert, 2 Sumner, 19. That
the singular form is sufficient, see, in

[252]

Butman’s case, 8 Greenl. 113; The
State v. Robbins, 1 Strob. 355. And
see Crim. Law, I. § 203.

1 Crawford v. The State, 2 Ind. 132.

% The State v. Bell, 3 Ire. 506.

5 Rex », Spiller, 2 Show. 207.

* Commonwealth v. Kennedy, 15 B.
Monr. 581. And see, as to Arkansas,
Brown v. The State, 138 Ark. 96.

5 1 Chit. Crim. Law, 276. See also
Commonwealth v. McCurdy, 5 Mass.
324.
CHAP. XX.] INDICTMENTS UPON STATUTES. § 859

on a public statute, whether the offence be evil in its own na-
ture, or only becomes so by the prohibitions of the legisla-
ture, to recite the statute upon which it is founded ; for the
judges are bound, ex officio, to take notice of all public acts of
parliament ; and, where there are more than one by which
the proceeding can be maintained, they will refer it to that
which is most for the public advantage.1.... But the parts
of a private act upon which an indictment is framed, must
be set out specially, the same as other facts, and a variance,
if properly shown to the court, will be fatal.” ?

§ 857. There is, in the English books, considerable law to
be found, relating to the manner in which a private statute
should be set out in the indictment; but, as indictments on
private statutes are very seldom made in this country, and
our statutes are so enacted as to leave little difficulty under
this head, it is deemed best to omit this part of the English
law.2

§ 858. The first thing for the pleader to consider is,
whether the indictment which he is about to frame is really
to be upon the statute; or whether it is to be at the common
law, while the statute merely fixes the punishment ; or, what
is practically another matter still, whether it is not to be at
the common law, as concerns all but certain statutory aggra-
vations of the offence, when the indictment, as already ex-
plained,* will follow the common law form, swelled by the
statutory aggravations, and conclude as against the statute.
What we are now principally to discuss is the indictment
framed upon the statute purely.

§ 859. Where the offence is purely statutory, having no
relation to the common law, — where, in other words, the
statute specifically sets out what acts shall constitute the of
fence, — it is, as a general rule, sufficient in the indictment
to charge the defendant with acts coming fully within the

1 Dyer, 155 a, 346; 6 Mod. 140; Hawk. P. C. c. 25, § 103; Bac. Ab.
Cro. Eliz. 186, 236 ; Hob. 310; 2 Hale Indictment, H. 2.
P. C. 172; 2 Hawk. P. C. c. 25, § 100; 8 See 1 Stark. Crim. Pl. 2d ed. 212

1 Saund. 135, note. et seq.; 1 Chit. Crim. Law, 277 et seq.
21 Sid. 356; 2 Hale P.C.172; 2 and the books there referred to.
4 Ante, § 346.

VOL. I. 22 [253]
§ 360 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

statutory description, in the substantial words of the statute,
without any further expansion of the matter.1 How closely
the words of the indictment must follow those of the statute
we shall now proceed to see.

§ 860. The terms used in our tribunals to designate the
degree of closeness with which the pleader must adhere to
the words of the statute, in setting out the offence, are not
uniform. But the result to which we come, after considering
the words of the judges, the reasons on which the law is based,
and the actual course of adjudication, is, that the indictment
must employ so many of the substantial words of the statute
as shall enable the court to see on what statute it is framed :
and, beyond this, it must use all the other words which are
essential to a complete description of the offence; or, if the
pleader chooses, words which are their equivalents in mean-
ing; or, if again the pleader chooses, words which are more
than their equivalents, but which include within themselves

the full significations of the words not used.?

’ People v. Stockham, 1 Parker C. C.
424; The State v. Williams, 2 Strob.
474; Hester v. The State, 17 Ga. 180;
Camp v. The State, 3 Kelly, 417;
Sweeney v. The State, 16 Ga. 467 ;
Ricks v. The State, 16 Ga. 600 ; Cham-
bers v. People, 4 Scam. 351; The
State v. Noel, 5 Blackf. 548 ; The State
v. Click, 2 Ala. 26 ; Clark v. The State,
19 Ala. 552; The State v. Abbott, 11
Fost. N. H. 434 ; Romp ». The State,
3 Greene, Iowa, 276; The State v.
Ragan, 22 Misso. 459; The State v.
Rabon, 4 Rich. 260; Moffatt v. The
State, 6 Eng. 169; United States v.
Lancaster, 2 McLean, 481 ; The State
v. Calvin, R. M. Charl. 151; The State
». Duncan, 9 Port. 260; The State v.
Mitchell, 6 Misso. 147; The State v.
Helm, 6 Misso. 263 ; Studstill v. The
State, 7 Ga. 2; The State v. Bougher,
83 Blackf. 307 ; United States v. Good-
ing, 12 Wheat. 460; Sharp v, The
State, 17 Ga, 290 ; The State v. Here-
ford, 13 Misso. 3; The State o. Rust,
35 N. H. 438; Medlock v. The State,

[254]

18 Ark. 863 ; Malone v. The State, 14
Ind. 219; The State v. Adams, 16
Ark. 497; Eubanks v. The State, 17
Ala. 181; The State v. Bess, 20 Misso.
419 ; Commonwealth v. Daniels, 2 Va.
Cas. 402; The State v. Cantrell, 2 ~
Hill, S. C. 389 ; Lemon v. The State,
19 Ark. 171; The State v. Collins, 19
Ark. 587 ; The State v. Keogh, 13 La.
An. 243; United States v. Wilson,
Bald. 78; Lodano v. The State, 25
Ala. 64; United States v. Vickery, 1
Har. & J. 427 ; Whiting v. The State,
14 Conn. 487; Simmons v. The State,
12 Misso. 268.

2 J shall here insert a sort of digest
of judicial enunciations on this subject,
as follows: An indictment on a statute
Must set forth the charge in the very
words of the statute ; but a superfluous
description is not objectionable. The
State v. Cheatwood, 2 Hill, S. C. 459.
It is a settled principle, that indictments

‘under statutes, particularly of the high-

est penal character, must state all the
circumstances which constitute the of-
CHAP. XX. ]

INDICTMENTS UPON STATUTES.

§ 861

§ 361. Thus, where a statutory arson has been created, as
in Virginia, an indictment is held to be insufficient if it has the

fence as set down in the act, so as to
bring the defendant within it, and must
be certain and clear to every intent,
and pursue the precise technical lan-
guage employed in the statute in de-
scribing the offence. Ike v. The State,
23 Missis. 525. The offence need not
be set out in the words of the statute.
It is sufficient that the words used in
the description of the offence are equiv-
alent to those used in the statute. The
State vo. Bullock, 13 Ala. 413. It is
sufficient to charge the offence in words
of the same import as those used in the
statute. Buckley v. The State, 2 Greene,
Iowa, 162, The indictment must state
all the circumstances which constitute
the definition of the offence in the
statute, so as to bring the defendant
precisely within it. The State v. Mc-
Kenzie, 42 Maine, 392 ; Commonwealth
v. Hampton, 3 Grat. 590. When the
indictment substantially follows the
statute, so as to put the prisoner upon
fair notice of the offence charged, and
the time, place, and circumstances ne-
cessary to constitute the crime, it will
be sufficient. People v. Thompson, 4
Cal, 238. Where the words of the
statute are descriptive of an offence,
the indictment must follow the language
of the statute, and expressly charge the
respondent with the commission of the
described offence in the words of the
statute, or their equivalents, else it will
be defective. The State v. Gove, 34
N. H. 510. <A variance between the
language of the statute and the indict-
ment will not vitiate, if the words
used in the indictment are equiva-
lent to those of the statute. The State
v. Hickman, 3 Halst. 299. It is not
always necessary to describe the offence
in the precise words of the statute.
Poage v. The State, 3 Ohio State, 229.
The substance of the statutory defini-
tion of the offence should be contained
in an indictment. United States

Dickey, 1 Morris, 412. The language
of the statute defining the offence should
be strictly followed. Howel v. Com-
monwealth, 5 Grat. 664; The State v.
Thomas, 3 Strob. 269. The indict-
ment should be in the words of the
statute. The State ». Casados, 1 Nott
& McC. 91. The material words of
the statute must be used. The State
v, La Creux, 1 MeMullan, 488. It is
sufficient if the offence is substantially
set forth, though not in the exact words
of the statute. United States v. Bach-
elder, 2 Gallis. 15. The indictment
must follow the words of the statute.
Nothing can be taken by intendment.
The State v. O’Bannon, I Bailey, 144.
It must keep close to the expressions of
the statute. The State v. Foster, 3
McCord, 442. Where the words used
in an indictment are equivalent to, or
of more extensive signification than
those used in the statute, such words
are sufficient; as, where w statute de-
clared it felony to make fraudulently
any coin in “ imitation” of the current
coin of the State, an indictment charg-
ing the defendant with fradulently mak-
ing coin to the “ likeness ” and “ simil-
itude”’ of the current coin was held
good. Peek v. The State, 2 Humph.
78. Said the court: ‘ The offence is
charged in the indictment substantially
and sufficiently pursuant to the statute ;
and, although there is not a perfect sim-
ilarity in the words, there is no vari-
ance in the sense, nor can the variance
create any doubt in the operation or
construction of the law.” So the in-
dictment was held to be good. The
State ». Vill, 2 Brev. 262. Letter or
substance. Skains v. The State, 21 Ala.
218. Must state all the facts necessary
to bring the defendant precisely within
the statute. Morse v. The State, 6
Conn. 9. The indictment “should iden-
tify and charge a specific offence pro-
hibited by the one statute or the other.”
(255.
§ 3861 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

words “ set fire to,” in place of the statutory word “ burn.” ?
And where the statute against removing a slave contained
the words, ‘“ without the consent of the owner,” an indict-
ment omitting these words was held to be invalid.2. Where
the statute was: “Every person who shall, on purpose, and
of malice aforethought, shoot at,” &c.; and the indictment
was, “ feloniously, unlawfully, and of malice aforethought,
did shoot’; the variance was held to be fatal. On the other
hand, an indictment averring that the defendant did “ shoot”
another, instead of “‘ shoot at,” which are the words of the
statute, was held to be good ; because the former necessarily
implies and includes the latter. And an indictment against
keeping a gaming-house was sustained, though it averred that
the defendant kept “a” house, instead of “his” house; the

word “his” being the one used in the statute.®

And if the court cannot see, on looking
at it, on which of two statutes it was
intended to be drawn, it will be insuf-
ficient. Commonwealth v. Macuboy, 3
Dana, 70, 72. So many of the words
used in the statute to describe an of-
fence as are necessary, shall be used to
state it in the indictment. The State
v. Ellis, 4 Misso. 474; Vaughn v. The
State, 4 Misso. 530. Should follow thé
statute strictly. Updegraff ». Com-
monwealth, 6 S. & R.5. In general,
an indictment need not adopt the very
words of the statute ; the same sub-
stance, to a reasonable intendment, is
sufficient. The State v. Little, 1 Vt. 331.
If an indictment does not substantially
follow the language of the statute on
which it is founded, it does not clearly
charge an indictable offence, and is
consequently not cured by that section
of the statute of Iowa which provides,
that “no indictment shall be quashed if
an indictable offence is clearly charged
therein, or if the charge be so explicitly
set forth that judgment can be rendered
thereon.” The State v. Morse, 1 Greene,
Iowa, 503,

1 Howel v. Commonwealth, 5 Grat.
664.

[256]

2 Commonwealth vo. Peas, 2 Grat.
629, 4 Leigh, 692.

3 The State v. Comfort, 5 Misso. 357.
See Anderson v. The State, 5 Pike, 444.
Where a statute makes criminal the do-
ing of an act “wilfully and malicious-
ly,” it is not sufficient for the indictment
to charge that it was done “ feloniously
and unlawfully,” or “ feloniously, un-
lawfully, and wilfully ”’; these latter
terms not being synonymous, equiva-
lent, of the same legal import, or sub-
stantially the same as “ wilfully and
maliciously.” The State v. Gove, 34
N. H. 510. An indictment for cutting
and wounding, which charges the of-
fence to have been committed “ feloni-
ously, wilfully and maliciously,’ is bad,
the words of Stat. 9 Geo. 4, c. 21,,§ 11
& 12, being “ unlawfully and malicious;
ly.” Rex v, Ryan, 7 Car. & P. 854, 2
Moody, 15. See also Jarnagin v. The
State, 10 Yerg. 529; Anthony v. The
State, 13 Sm. & M. 263.

4 The State v. Vaughn, 26 Misso. 29.

5 The State v. Hubbard, 3 Ind. 530.
Let us look at various other cases :
Thus, where a statute against maiming
contained the words “shall, on pur-
pose, unlawfully,” &c. an indictment
CHAP. XX.] INDICTMENTS UPON STATUTES. § 362

§ 862. As this matter is one of some nicety, it will com-
pensate us to look at almost the entire statement of Chitty on
the subject, with his authorities. He says!: “It is a general
rule, that all indictments upon statutes, especially the most
penal, must state all the circumstances which constitute the
definition of the offence in the act, so as to bring the defend-
ant precisely within it; and this rule applies as well to those
which take away the benefit of clergy from offences which
exist at common law, as those by which new felonies are cre-
ated ; and a conclusion contrary to the form of the statute,

&e., will not aid a defect in this respect.?

And not even the

fullest description of the offence, were it even in the terms of

for biting off the ear, omitting the words
‘on purpose,” was held to be insuffi-
cient. The State ». Ormond, 1 Dev.
& Bat. 119. Under a statute which
punishes “ every person who shall break
and enter, in the night time, any office,
shop, railroad depot, or warehouse, not
adjoining to or occupied with a dwell-
ing-house,”’ with intent to commit a fel-
ony, an information which fails to de-
scribe the building entered as “‘ not ad-
joining to or occupied with a dwelling-
house,” is fatally defective. Koster v.
People, 8 Mich. 431. Under a statute
against maliciously killing, “ the cattle ”
of another, an indictment for malicious-
ly killing “a certain horse beast, to
wit, one mare,” is sufficient. The State
v. Hambleton, 22 Misso. 452. See also
the State v. Pearce, Peck, 66. An in-
dictment for wounding “ a steer,” the
words of the statute being, “ cattle or
other beast,’’ was held to be sufficient.
The State v. Abbott, 20 Vt. 537. A
statute having enacted,,-“ that every
person who. shall falsely make, deface,
destroy,” &c., a record, should be deem-
ed guilty of forgery, an indictment
charging the defendant with having
unlawfully, feloniously,, &c., was held
to be good, though it omitted the word
“falsely.” The court observed: “ The
words inserted are more than equiva-
lent to the words omitted.” The State

22 *

v. Dark, 8 Blackf. 526. A statute made
punishable “every person who shall
cut down or remove any timber-trees,”
&c. And it was held not to be suffi-
cient in an indictment to charge the de-
fendant with having cut the trees, omit-
ting the word “down”; for, said the
judge: “It is certainly true that a man
may cut a tree with intent to make
merchandize of it, without cutting it
‘down,’” Therefore the indictment
was less comprehensive than the stat-
ute. Maskill v. The State, 8 Blackf.
299. A statute had the words, “ with a
felonious intent to rob, or commit rob-
bery upon, such person or persons” ;
and it was held, that an allegation
specifying the intent as being to steal
the goods of the prosecutor was insuf-
ficient. Rex v. Monteth, 2 Leach, 4th
ed. 702, 1 East P. C. 420. The words
of a statute against riot were, “ with
force and violence”; the words of
the indictment were, “ with force and
arms,” and they were held to be insuf-
ficient. Martin v. The State, 9 Misso.
283.

1 1 Chit. Crim. Law, 281 - 283 a.

21 Hale P. C. 517, 526, 535 ; 2 Hale
P. C. 170; Staundf. 1305; Fost. 423,
424; Hard. 20; Dyer, 304; J. Kel. 8;
Com. Dig. Justices, G.1; 1 Chit, Pl.
4th ed. 322; 2 Marshall, 364, note.

[257]
§ 3862 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

a legal definition, would be sufficient without keeping close
to the expressions of the statute.! And, therefore, where a
man was indicted for robbery, ‘in a certain king’s footway
leading from London to Islington,’ he was admitted to his
clergy ; because the statute? which takes it away from the
crime, describes the place as ‘in’ or ‘near a king’s highway,’
which ought to have been stated in the proceedings.’ So in
an indictment for assaulting with an intent to rob, as the
statute‘ states that, if the defendant ‘shall, with any offen-
sive weapon or instrument, unlawfully and maliciously as-
sault; or shall, by menaces, or in or by any forcible or violent
manner, demand any goods or chattels; he shall be adjudged
guilty of felony,’ —it is not sufficient to state an assaulting
and menacing with intent to rob, but it must be averred,
either that the assault was made with an offensive weapon, or
that money or goods were demanded.5 So in an indictment
for aiding one being a principal maintainer of the See of
Rome, before the repeal of the statute of premunire, agaiust
the form of the statute,® if the words ‘ upon purpose, and to
the intent to rob, set forth, and to extol, the authority,’ &.,
were omitted, the omission would vitiate the proceedings.’
So if a conviction charge the defendant with killing deer in
a certain place where they have been usually kept, without
saying ‘enclosed place’ ;® or ‘ with unlawfully killing fish,’
omitting to add ‘ without the consent of the owner of the wa-
ter’;® insuring a ticket in the lottery, without saying ‘the
state lottery’ ;1° or with having a gun in his house, when the
words of the statute are, ‘ use to keep a gun in his house’ ; #
it will be invalid.”

1 Fost. 424. might. 2 East P. C. 785 : Russ. & Ry.
2 93 Hen. 8, «. 1. 9 and notes,

8 Sir F. Moore, 5; 1 Hale P. C. 535. * 7 Geo. 2, c. 21.
Sed Quere: it has been decided, that, 5 1 Leach, 265 ; 1 East P. C.419; 2
where an indictment for a robbery Hale P. C. 189, 190.
stated it to have been committed in 6 1 Eliz. c. 1, § 25.
a field near the king’s highway, and the 7 3 Dyer, 363 ; 2 Hale P. C. 193.
robbery proved did not take place near 8 2 Ld. Raym. 971.
any highway, the allegation of its being ®° 2 Bur. 679.
near the highway was immaterial, for 01 T. R. 222,
the 3 & 4 Will. & M. c. 9, took away i 1 Show. 48,
clergy, let the robbery be where it

[258]
CHAP. Xx.] INDICTMENTS UPON STATUTES. § 363

§ 868. “It is in general necessary, not only to set forth on
the record all the circumstances which make up the statut-
able definition of the offence, but also to pursue the precise
and technical language in which they are expressed! And
upon this\ground, an indictment for rape must contain the
word ‘ ravished,’ nor will any expression of force and carnal
knowledge excuse its omission.? So in an indictment for
perjury, upon the statute,? the word ‘ wilfully’ must be in-
serted, because it is part of the description the act gives of
the crime ;* though, in an indictment for the same offence
at common law, that precise term is not essential, but may be
supplied by others, which convey the same idea.’ And in an
indictment upon the black act,® the term ‘ wilfully’ is also
essential, as being used by the legislature, and ‘ maliciously ’
will not suffice.’ Upon the same principle, indictments upon
the statute 5 & 6 Edw. 6, c. 4, for striking in a church, omit-
ting the words * with intent to strike,’ &c. ;° for forestalling,
on 5 & 6 Edw. 6, c. 14, not expressly stating ‘ that the goods
were then coming to market to be sold’ ;® and for engrossing
on the same act, averring that the defendant bought so much
corn, instead of stating that ‘he engrossed by buying,’ &c. ;
have been holden to be invalid.!2 And even in a commitment,
which need not be drawn with the same precision as an in-
dictment, upon the statute 7 Geo. 2, c. 21, which makes it
felony to assault with an offensive weapon, or by menaces to
demand money or goods, it was holden insufficient to state a
mere assault with a felonious attempt to steal, and the pris-

1 Fost, 424; Cro. Jac. 607 ; 11 Co.
58; 2 Hale P. C.170; 2 Leach, 1107;
2 Hawk. P. C. c. 25, § 110; Bac. Ab.
Indictment, H. 2; Hardr. 21; 8 T.
R. 536.

2 9 Hawk. P. C. c. 23, § 77; Id. «.
25,4 110; Bac. Ab. Indictment, H. 2.

8 5 Eliz. c. 9.

4 1 Leach, 494, note; 2 Hale P. C.
87 ; Cro. Eliz. 147, 201 ; Cro. Jac. 508 ;
3 Inst. 167 ; Show. 190; 2 Leon. 211;
Keb, 12; 2 Hawk. P. C. ¢. 25, § 110;
Bae. Ab. Indictment, H. 2.

5 Id, ibid.; 1 Leach, 71.

6 9 Geo. 1, c. 22.

7 1 Leach, 493; 1 East P. C. 412;
but it appears the word ‘ feloniously’
would suffice without any other. 3
Wils. 318 ; 2 W. Bl. 842; 5 East. 244 ;
2 Marshall, 364.

8 Cro. Eliz, 231, 307, 697; 2 Leon.
188 ; Noy, 171; 2 Hawk. P.C. ¢. 15,
§110; Bac. Ab. Indictment, H. 2.

9 2 Rol. 421; Gilb. L. & E. 276; 2
Hawk, P. C. c. 25,§ 110; Bac. Ab.
Indictment, H. 2.

10 2 Leon. 39; 2 Hawk. P. C.c¢. 23,
§110; Bac. Ab. Indictment, H. 2.

[259]
§. 365 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

oner was admitted to bail. And so necessary has it been
deemed to pursue precisely the language of the statute, that,
in an indictment against traitors for the actual'murder of the
king, the compassing and imagining is laid as the treason in
the terms of the statute, and the king’s death itself laid only.
as an overt act of treason.*

§ 364. “But there are some cases in which this verbal
strictness has been relaxed, and a different interpretation
pursued, where, indeed, the words used are in effect equiva-
lent to those contained in the act. Thus it has been holden,
that, in an indictment against an accessory before the fact in
murder, the words ‘ excite, procure, and move’ were equiva-
lent to ‘ command, hire, or counsel,’ which are used in the
statute ;? and that, therefore, the variance was not material.*
And the reason assigned for this departure from the general
principle is, that the statutes respecting accessories make use
of a great variety of terms to designate them, and therefore
they may all be expressed by their legal import. This opin-
ion does not seem to have ever been expressly recognized in
any later decision; but it has been holden, that an indictment
upon the statute for obtaining money under false. pretences,$
need not say that the defendant ‘ falsely pretended,’ but it is
sufficient if it be stated, that the defendant pretended, and
then to aver that the pretence was false, and, by means of the
‘false pretences’ aforesaid, the money was obtained.’ At all
events, however, it is in every case advisable to attend, with
the greatest nicety, to the words contained in the act, for no
others can be so proper to describe the crime; the excep-
tions, if any, are doubtful; and the broad principle which
renders a strict adherence essential, is supported by too strong
a number of decisions to be shaken.” /

§ 865. Another thing said by Chitty ® is: “An indictment
for horse-stealing must give the animal one of the descriptions

15 T. R. 169; 2 Leach, 583. & Fost. 1380, 131; 1 Hale P. C., 521,
2 J. Kel. 8; 2 Hawk. P.C.¢.25.§.110; 522; butsee Stark. 214, 215.

Bac. Ab. Indictment, H. 2, 6 80 Geo. 2, c. 24.
34&5 Phil.& M.c.4. 7 2 East P. C. 30; 2 M.& S. 379;
41 Ander. 195; Fost. 130;,1 Hale and see 3 Stark. N. P. 26.

P. C. 521, 522, 8 1 Chit. Crim. Law, 283.

[260]
CHAP. Xx.]

INDICTMENTS UPON STATUTES. § 866

mentioned in the act; stating the animal stolen to have been
a colt, without stating it was a horse or mare, will not suf-
fice! So an indictment on the 9 Geo. 1, c. 22, must state
the species of the cattle wounded or injured? So, describing
a bank note as ‘a certain note commonly called a bank note,’
is not such a description as will warrant a conviction on the
2 Geo. 2, c. 25, for stealing it.’ 8

§ 866. The doctrine thus mentioned seems to be, what has
been called the well-settled rule in criminal pleading, that
where, in a statute creating an offence, a general term is used,
succeeded by words more precise and definite, or a specific
term is followed by more comprehensive words, the indictment
must charge the offence in the specific words. There are
several phases, so to speak, of this general doctrine ; and the
doctrine itself, at least in some of its aspects, is not quite
clear on the modern authorities.6 It is best to see a little
what has been held, and then leave the matter to the judg-
ment of the practitioner and to future decision. Thus, where
a statute provided a particular punishment for one who should
steal a “horse, mare, or gelding, filly, foal, mule or ass,”’ and
a prisoner was indicted for stealing a “horse,” yet the proof
was that the animal was a “ gelding,” there was held to be a
variance ; though, by the common understanding of the com-
munity, as the evidence also showed, the term horse includes
a gelding. The statute, it was considered, had made a dis-
tinction in these animals, and the distinction must be heeded
in the form of the indictment. So where a statute made it
punishable for any person to “knowingly suffer his horse,
mare, or colt to be run in a race,” &c., and an indictment
charged the defendant with having suffered his “‘ mare” to
be thus run, proof that the animal was a “‘horse’’ was very

1 Russ. & Ry. 416.

2 Russ. & Ry. 258.

8 2 East P. C. 601 ; Russ. & Ry. 14.

* The State v. Raiford, 7 Port. 101 ;
The State v. Plunket, 2 Stew. 11 ; Bush
v. The State, 18 Ala. 415. In the last
of these cases, Dargan, C. J. said: “I
confess, however, that I am yielding to
authority, without being able to see

clearly the reasons on which the decis-
ions are based.”

5 See Crim. Law, I. § 276.

8 Turley v. The State, 3 Humph.
323. 8. p. The State v. Plunket, 2 Stew.
11. See as to this, Rex v. Moyle, 2
East P. C. 1076; Rex v. Mott, 2 East
P. C. 1075, 1 Leach, 4th ed. 73, note.

[261]
§ 369 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

properly held not to support the allegation. Though we
should admit that a mare is a horse, plainly a horse is not a
mare. But points like these should be examined in connec-
tion with various passages to be found in the author’s work
on the Criminal Law.?

§ 867. Ifan indictment charges an offence in the terms of
the statute, still, if it contains also other allegations showing
that the acts specified do not come within the statute, it will
be insufficient.?

§ 368. Where a statute creates a new offence, there is no
need of alleging, in express words, that what was done took
place subsequently to the passage of the statute. The plead-
er will be careful not to fix the date of the offence anterior
to the date of the statute, and this is as far as he need go.
Chitty says: ‘ Where the prohibiting statute is recent, it is
usual to allege expressly, that the offence was committed after
the making of the statute ; but, where the statute is ancient,
this is not usual ; and does not seem to be in any case neces-
sary.’* In the United States, it is believed, this allegation
is rarely, if ever, inserted in an indictment upon a statute
framed in the ordinary way. If the statute, by its terms,
renders penal an act committed after a time which it specifies,
there may in some cases be a propriety in introducing the
corresponding allegation into the indictment. When such
a statute has become thirty years old, there is no need
this allegation should be continued ; and perhaps the better
doctrine is, that there is no need of the allegation at any
time.®

IV. The Exceptions of expanding the Allegation beyond the
Statutory. Words.

§ 869. To the general doctrine, that the indictment is suf-

1 Thrasher v, The State, 6 Blackf. 41 Chit. Crim. Law, 285, referring
460, to 1 Bur. 3664 1 Saund. 309, note 5;
2 Crim. Law, I. § 275,-276, 315,316, 1 Chit. PL 4th ed. 323; Gilb. C. L. &
329, 330, 341. And see Rex v. Beard, E. 242.
Jebb, 9 ; The State v. Pearce, Peck, 66. 5 The State v. Chandler, 2 Hawks,
8 The State v. Mahan, 2 Ala. 340. 439; The State v. Sam, 2 Dev. 567
[262]
CHAP. XX.] INDICTMENTS UPON STATUTES. § 870

ficient if it follows the words of the statute creating and de- |
fining the offence, there are many exceptions, requiring the
allegation to be expanded beyond the prohibiting terms.?
“As [one] exception to this general rule, it was held, that it
is not always sufficient to pursue the very words of the stat-
ute, unless by so doing you fully, directly, and expressly
allege the facts, in the doing or not doing of which the
offence consists.”’? Thus, to return to a matter which has
been partly illustrated already,* if a statute makes punish-
able “ any person who shall presume to keep a tippling house,
or sell rum, brandy, whiskey, taffia, or other spirituous lig-
uors”; an indictment on the statute, setting out that the
defendant sold “ spirituous liquors,’ without any further de-
scription of the liquors sold, is not sufficient. This proposi-
tion has sometimes been put’ upon the ground, that, as the
words “spirituous liquors”? stand in connection with more
specific words, it will be a violation of a technical rule of
criminal pleading to employ in the indictment terms more
general than the specific terms. But it rests equally well
upon the broader reason, that so general an allegation does
not give the defendant the specific notice of what is charged
against him, to which the principles of good pleading and
good sense entitle him.®

§ 870. Said Colcoek, J., speaking of indictments upon
statutes: ‘“‘It is necessary to specify on the face of the indict-
ment the criminal nature and degree of the offence, which
are conclusions of law from the facts ; and also the particular

1 Ante, § 359.

2 United States v. Gooding, 12
Wheat. 460.

3 Clark v. The State, 19 Ala. 552.

* Ante, § 366.

6 The State v. Raiford, 7 Port. 101 ;
Bush v. The State, 18 Ala. 415. So
where a statute makes it indictable for
any unlicensed person to “ presume
to be a retailer or seller of spirituous
liquors,” the indictment is not sufficient
if it merely follows the words of the
statute ; it must also aver, that, at a
time and place named, the defendant

made a specific sale, &c. Commonwealth
v. Dean, 21 Pick. 334. See also The
State v. Brown, 8 Misso. 210.

® Though a presentment in the lan-
guage of a statute is generally sufficient,
it is not always so. It should apprise
the defendant of the nature of the accu-
sation against him, with such certainty
as will enable him to make preparation
to meet it, and render the first proceed-
ing a bar to a subsequent prosecution
for the same offence. Commonwealth
v. Cook, 13 B. Monr. 149.

[263}
§ 871 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

facts and circumstances which render the defendant guilty of
that offence.” ! We had an illustration of this proposition
when we saw, that, with some exceptions as to localities and
offences, an indictment for a statutory felony must contain
the word “ feloniously,” though it is not found in the stat-
ute.2 So where a statute. made it an offence to ‘‘give credit
to any student of Yale College, being a minor, without the
consent in writing of his parent or guardian, or of such officer
or officers of the college as may be authorized by the govern-
ment thereof to act in such cases, except for washing or med-
ical aid”’ ; it was held, by construction of law, that, to make
a violation possible, there must first be some officer of the
college authorized by the government thereof to give the con-
sent ; consequently, that this authority must be set out in
the information drawn upon the statute? And here we may
state a plain deduction of good sense; namely, — that the
rules by which statutes are framed, and those by which indict-
ments are framed, are not precisely alike; therefore, that,
when a statute has created an offence of dimensions broader
than its words, it being in the power of statutes to do such
things, the indictment must not satisfy itself with using
merely the words of the statute ; for it is not the province of
indictments to hold defendants by a tether longer than the
words which the pleader puts into them.

§ 871. Thus, to bring forward another case by way of
illustration, a statute in Tennessee made it indictable for a
man knowingly to vote at an election, not being a ‘ qualified
voter”; and the court held, that a presentment merely in
the words of the statute was not sufficient. Whether a man
is a “ qualified voter” or not is a legal result, deducible from
a combination of facts; and, though a statute may well
enough mention a legal result in defining an offence, this’is
not the province of an indictment. The indictment must
state the facts out of which the legal result comes; thus giv-
ing the defendant notice of what is charged against him, and

1 The State ». Raines, 3 McCord, 2 Ante, § 290, 291.
533, 543. * Morse v. The State, 6 Conn. 9.
[264]
CHAP. XX.]

INDICTMENTS UPON STATUTES.

§ 352

putting upon the record a proper case for the adjudication of

the court.!

§ 872. Suppose, again, the statute is in general terms, yet
by construction it has a specific application, narrower than
the general words ;? in such a case, the indictment must cor-
respond as well with the judicial interpretation as with the

letter of the enactment.?

1 Pearce v. The State, 1 Sneed, 63.
I have not, in the text, followed very
closely the argument of the learned
judge; but I have at least stated the
“legal result” of it. Said Totten, J. :
“The presentment is in the words of
the statute, and the words are, ‘a qual-
ified voter.” That is not a fact, but
a legal result.” p. 67. Again, “ The
act of voting is not necessarily illegal,
but it may become so for some of the
causes before stated ; and, in order that
the charge may be perfect, such cause
must be set forth and averred in the
indictment or presentment.” p.68. See
also United States v. Stowell, 2 Curt.
C. C. 153. Where the statute was :
“ Any person who, with intent to injure
or defraud any gas company, body cor-
porate or individual, shall make, or
cause to be made, any pipe, tube, or
other instrument or contrivance, or con-
nect the same, or cause it to be con-
nected, with any main service-pipe, or
other pipe, for conducting or supply-
ing illuminating gas, in such manner
as,” &c.; it was held, that an indict-
ment in the words of the statute was
not sufficient; but the relations of the
party, whom it is alleged the defendant
intended to defraud, to the means by
which the fraud is sought to be perpe-
trated, must be set out. ‘“ The court,”
said Brown, J. ‘must be able to see ju-
dicially that the act was calculated to
defraud the company, otherwise the in-
tent to do socannot appear. This prin-
ciple is clearly recognized in the follow-
ing cases: People v. Stone, 9 Wend.
182, 191; People v. Williams, 4 Hill,
N. Y. 9, 12; People v. Thomas, 3 Hill,

VOL. I. 23

N. Y. 169. Indeed, the circumstances
which show that the act was calculated
to defraud the company, constitute the
only foundation whereon the allegation
of the intent can be legally predicated.”
People v. Wilber, 4 Parker, C. C. 19, 24.
So where a statute provided a punish-
ment for one who should be guilty of
“fraudulently keeping in his posses-
sion,” counterfeit bank notes; it was
held, that the indictment must go be-
yond the words of the statute, and al-
lege that the defendant knew the notes
were counterfeit, and had the intention
of passing them. “ This,” said Caru-
thers, J. “is necessary to make the
possession fraudulent.” Owen v. The
State, 5 Sneed, 493.

2 And see ante, § 369.

3 See United States v. Pond, 2 Curt.
C. C. 265, 268, where Curtis, J. ob-
served ; “ This indictment follows the
words of the statute. It is sufficient,
therefore, unless the words of the stat-
ute embrace cases which it was not the
intention of the legislature to include
within the law. If they do, the indict-
ment should show this is not one of the
cases thus excluded. In the case of
The Mary Ann, 8 Wheat. 380, speaking
of an information, Mr. Chief Justice
Marshall said, ‘ If the words which de-
scribe the subject of the law are general,
embracing a whole class of individuals,
but must necessarily be so construed as
to embrace only a subdivision of that
class, we think the charge in the libel
ought to conform to the true sense and
meaning of those words as used by the
legislature’; and this is only another
mode of expressing the same rule which

[265]
§ 878 [BOOK IL.

§ 373. If a statute makes use of some technical term,
known to the law, it creates an offence bounded by the term
itself; yet an indictment, employing the term alone, would
be often insufficient.1 And, generally, where a statute mere-
ly designates an offence by the use of some word technical or
otherwise, yet does not describe the constituents of the of-
fence, the indictment must state it according to its legal and
sometimes its actual particulars.2, Thus, where the statute
made punishable “every person who shall maliciously and
cruelly maim, beat, or torture any horse, ox, or other cattle,”
it was held, that the indictment must go beyond the words of
the statute, and descend to the particulars. ‘In all acts of
this character,” said Ryland, J., ‘the means of producing the
torture must be averred, and the courts must see that such
means have the inevitable and natural tendency to produce
the effect in which the criminal charge consists.”? When,
therefore, an indictment charged the mere act of tying brush
or boards to the tail of a horse, not specifying the effect
which followed, it was held to be insufficient ; because such

PLEADING AS RESPECTS THE INDICTMENT.

an act does not necessarily produce torture.’

I have stated above.” According to a
Connecticut case, if the defendant in-
sists upon greater particularity in the
indictment than merely following the
terms of the statute, he must show, that,
from the obvious intention of the legis-
lature, or the known principles of law,
the case falls within some exception to
the general rule. Whiting v. The State,
14 Conn. 487.

1 The State v. Briley, 8 Port. 472;
The State v. Duncan, 9 Port. 260; Tho
State v. Click, 2 Ala. 26.

2 Anthony v, The State, 29 Ala, 27.

3 The State v. Pugh, 15 Misso. 509.
The English statute 7 Will. 4 & 1 Vict.
c. 85, § 4, provided a punishment for
any one who shall “ stab, cut, or wound
any person with intent to maim, disfig-
ure, or disable such person, or to do
some other grievous bodily harm to such
person,” &c.; and it was ruled by Cole-
ridge, J. not to be necessary, in an in-
dictment for wounding under the stat-

[266]

ute, to set forth with what instrument
the wound was inflicted., He said:
“ The cases establish, that it is necessa-
ry to prove by evidence that the wound
was given by an instrument calculated
to produce the injury complained of ;
but they do not go the length of saying,
that the instrament must be stated in
the indictment, The indictment in this
instance has followed the words of the
statute, and I am of opinion that it is
sufficient.” Erle’s case, 2 Lewin, 133.
So under the Tennessee statute, provid-
ing that “no person shall maliciously
shoot or stab another,”’ it is sufficient for
the indictment to charge, that the ac-
cused did “ unlawfully and maliciously
shoot,” &c. It is not necessary to de-
scribe the weapon, the hand in which it
was held, the wound that was inflicted,
or circumstances attending the act. The
State ». Ladd, 2 Swan, Tenn. 226. A
statute provided a punishment for any
cashier of a bank who “ shall knowing+
CHAP. XX.]

INDICTMENTS UPON STATUTES. § 874

§ 374. It would not be difficult to extend these illustra-
tions and views somewhat further; but it is believed, that
what has already been set down under the present sub-title
will do all which can be done, by any general statements of
the law, to guide the practitioner. It is not in the nature of
the subject to admit of any one general rule, or any specific
number of such rules, to be given upon an author’s page,
and serve as sure guides for all future cases. Hach case, as
it arises, must be considered in reference to its particular cir-
cumstances, as well as the general spirit of the law of crim-
inal pleading ; while yet the precedents in analogous cases,
the enunciations of former judges, and the views of text-writ-
ers will have their weight.!. Any one who reads our Amer-
ican decisions in detail, and observes the diverse adjudications
made upon the sufficiency of indictments drawn on new and
unexpounded statutes, will observe two things: first, that
some judges are more ready than others to accept of indict-
ments which merely follow the words of the statute ; second-
ly, that the tendency in modern times is to require an expan-
sion beyond the words in fewer circumstances than formerly
would have been demanded. But what partly accounts for
both of these facts is, that, in some of our States, statutes
have expressly permitted wide departures from the common-
law rules; while, in other of the States, the departures per-
missible are less in extent, and less numerous.

ly overdraw his account”; and it was
held, that the fraudulent intent consti-
tutes no part of the offence, and need
not be stated in the indictment. The
mischief which the statute was intend-
ed to correct consisted in the overdraw-
ing of the account, without any refer-
ence to the intent. Neither is it neces-
sary to aver in terms, that the account
overdrawn was the defendant’s own ac-
count, or to state the manner of the
overdrawing, whether by check or other-
wise, or to describe or specify the notes
or money drawn from the bank. The
State v. Stimson, 4 Zab. 478. An in-
dictment in North Carolina averred,
that the defendant “ unlawfully, know-

ingly, and wilfully did alter the mark
of a certain cow, the property of Mar-
tha Benson,” contrary to the provisions
of the statute ; and this was held to be
sufficient, though it did not allege what
the mark was before the alteration.
Said Nash, J.: “Pursuing the words
of the statute is sufficient, except in
cases where the subject of the indict-
ment cannot be brought within the
meaning of the statute without the aid
of extrinsic evidence.” The State v.
O’Neal, 7 Ire. 251, 254. Butsee Sewall
v. The State, Wright, Ohio, 483.

1 And see Moffatt v. The State, 6
Eng. 169.

[267]
§ 3876 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

V. What the Indictment must negative.

§ 375. Chitty says:1 ‘When a statute contains provisos
and exceptions in distinct clauses, it is not necessary to state,
in the indictment, that the defendant does not come within
the exceptions, or to negative the provisos it contains. Nor
is it even necessary to allege that he is not within the benefit
of its provisos, though the purview should expressly notice
them, as by saying that none shall do the act prohibited, ex-
cept in the cases thereinafter excepted.? For all these are
matters of defence, which the prosecutor need not anticipate,
but which are more properly to come from the prisoner.*
Thus, in an indictment against the receiver of stolen goods,
on 5 Anne, c. 31, whereby he is liable as for a misdemeanor ;
if the principal be not taken, it is not necessary to aver that
the principal is not taken ;® or, on the 22 Geo. 3, c. 58, § 1, to
state that he has not been convicted.* So, also, in an indict-
ment for not going to church, it is not necessary to aver that
the defendant had no reasonable excuse for his absence, on’
account of the words in the act,’ “having no reasonable ex-
cuse to be absent”; but, as the necessity for proving the
excuse lies upon the defendant, the contrary need not be
averred by the prosecutor. An indictment on the 48 Geo.
3, ¢. 128, need not negative the force or fear necessary to
constitute a robbery.®

§ 876. “ But, on the contrary, if the exceptions themselves

- 11 Chit. Crim. Law, 283 b, 284.

21 Sid. 303; 2 Hale P. C.171; 1
Lev. 26; Poph. 93, 94; 1 Bur. 148;
2 Bur. 1037; 2 Stra. 1101; 1 East,
646, in notes; 5 T. R. 83; 1 W. BI.
230 ; 2 Hawk. P. C. c. 25, § 112; Bac.
Ab. Indictment, H. 2; Burn Just. In-
dictment, IX.; 1 Chit. Pl. 4th ed. 322;
and see 3 B. & C. 136.

8 Poph. 93, 94; 2 Hawk. P.C. v. 25,
$113; and see 1B. & Ald. 94; and3
B. & C. 186; post, § 381, 382, note,
par. 5,

#2 Bur. 1087; 5 T. R. 83; 1 W.
Bl. 230 ; 2 Hawk. P. C. ¢c. 25, § 113.

[268]

5 2 Ld, Raym. 1378,

6 5 T. R. 83; 2 Leach, 578,

71 Eliz. ce. 2

8 2 Hawk. P. C. ¢. 25,§112, This
doctrine is contrary to what is now gen-
erally received; and Mr. Starkie and
some others have shown, that the indict-
ment which was thus pronounced suffi-
cient, was so, not by force of the com-
mon law rule, but of Stat. 29 Eliz. ¢. 6,
§ 5, which had made special provision for
the case. 1 Ben. & H. Lead. Cas, 257,
258 ; 1 Stark. Crim. Pl. 2d ed. 176,

® Russ. & Ry. 174; 2 Leach, 1046,
8. 0.; Russ. & Ry. 821, s. p.
CHAP. XXx.] INDICTMENTS UPON STATUTES § 877

are stated in the enacting clause, it will be necessary to neg-
ative them, in order that the description of the crime may in
all respects correspond with the statute.! Thus, in an in-
dictment on the statute? which enacts, that, if any person
shall take, receive, pay, or put off any counterfeit milled
money, or any milled money whatever unlawfully diminished,
and not cut in pieces, for a lower rate than its nominal value,
he shall be guilty of felony; it is absolutely necessary to
state that the money was not cut in pieces; and, if those
words be omitted, the informality will be fatal. And in an
indictment upon the first section of the same act, for keeping
a press for coinage, or other crimes thereby created, all the
exceptions by which, under that clause, the possession might
be lawful, or the defendant in any way derive authority to
exculpate him, must be expressly negatived.* Upon the
same ground, an information for importing goods from Hol-
land is insufficient, unless it aver that they were not of the
growth of that country.’

§ 377. The doctrines thus laid down by Chitty may be
said, m a general way, to be the same which are followed at
the present time, and in the United States. But the subject
is one of considerable importance, and it therefore demands
a somewhat fuller and more accurate statement. In one
view, it is a subject attended with difficulty ; because, in the
discussion which it has heretofore received, there has been a
looseness and uncertainty of statement growing out of the
flexibility of some of the words employed. A statute may
be said to consist of, first, the title; secondly, the pream-
ble; thirdly, the purview, — which last follows the words
“Be it enacted,” &c., and includes the entire statute, except
the title and preamble. This is plain. So it is plain, also,
that exceptions and provisos, in a statute, are those parts
which are ordinarily introduced by the words “except” and

12 Hale P. C. 170; 1 Bur. 148; 3 1 Leach, 102.

Fost. 430 ; 1 East, 646, in notes ; 1 T. 4 Fost. 430, where see Indictment ;
R. 144; 1 Lev. 26 ; Com. Dig. Action, 1 Bur. 148; 1 East P. C. 167.
Statute ; 1 Chit. Pl. 4th ed. 322 ; when 5 Hardr. 217, 218; Vin. Ab. Infor-
not, 3 B. & C. 186. mation, F. 6.
28&9 Will. 3, c.26, § 6.
23 * [269]
§ 378 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

“ provided ”’; though, if other equivalent words are used,
still these parts may be called by the same name. But what
is a “clause,” especially, what is “the enacting clause” ?
Plainly, the word clause signifies less than the word pur-
view; thus, we speak of the interpretation clause, the repeal-
ing clause, ‘a saving clause, an appeal clause,” and some
others! Now, in grammar, the word clause denotes a mem-
ber, less than the whole, of a sentence, — a sentence being
what stands between two periods. But, for reasons right or
wrong, judges and legal authors, employing the word clause
to denote some part of a statute, or of some other written in-
strument, have not restricted it to mean necessarily less than
what is embraced between two periods. Yet, how much it
means depends on the views of the particular person who
uses it, and the subject to which it is applied. So the ex-
pression “ enacting clause ”’ signifies less than the word pur-
view ; but the writer must be very bold who would under-
take to say just how much it signifies.?

§ 878. Judge Metcalf, in an article written while he was
yet at the bar, says, with admirable accuracy: “ The rule of
pleading a statute, which contains an exception or proviso, is
usually thus expressed in the books, namely: ‘If there is an
exception in the enacting clause, the party pleading must
show that his adversary is not within the exception ; but, if
there be an exception in a subsequent clause, or subsequent
statute, that is matter of defence, and is to be shown by the
other party.’”® But we shall see, that, while this rule is a
correct one as applied in most circumstances, it is not of uni-
versal application ; or, at least, it is not full enough to fur-
nish a universal guide. A series of propositions, to be stated
in succeeding sections, will show, both what has been actually

1 Dwar. Stat. 2d ed. 508 — 511.

2 Yet even the word “ purview” is
not quite free from uncertainty, or at
least of latitude of meaning, as em-
ployed by the judges. Thus, in Rex
». Jarvis, 1 East, 643, note, Denison,
J. is reported to have said: “ There is
a known distinction between exceptions

[270]

in a statute by way of proviso, which
need not be set forth, and those in the
purview of the act.” But language so
loose as this, as respects the word
“ purview,” is exceptional ; though not
as respects the words “enacting clause.”

®§8Am. Jur. 234; 1 Ben. & H.
Lead. Cas, 255, 256,
CHAP. Xx.] INDICTMENTS UPON STATUTES.

§ 380

adjudged by the courts, and what seems also to be sound in
principle.

§ 879. First. In these cases, as in all others wherein the
indictment is drawn upon a statute,! the pleader must keep
reasonably near to the words of the statute, or there will be
a variance, and on this ground the indictment will be de-
fective.2 Thus, where a statute provided, that, if any person
shall, on the Sabbath, “ exercise any secular labor, business,
or employment, except such only as works of necessity and
charity, he shall be punished by a fine,” &c., a complaint not
negativing the exception was held to be insufficient. And
when a statute declared, that no innholder “ shall entertain,
or suffer any of the inhabitants of the respective towns where
they dwell, or others, not being travellers, strangers, or lodg-
ers in such houses, to abide or remain in their houses, &c.,
drinking, &c., on the Lord’s day, &c., on the penalty,” &e. ;
it was held to be necessary, in the indictment, to set forth
that the persons entertained were neither travellers, stran-
gers, nor lodgers.* And, where a statute provided, that, if a
person unlicensed should retail spirituous liquors, ‘“ except
in corporate towns and cities,” &c., he should be guilty of a
misdemeanor ; an indictment, omitting to negative the excep-
tion, was held to be bad.®

§ 880. Secondly. Though there should be no question of
variance, such as is mentioned in the last section, still the in-

1 Ante, § 360 et seq.

2 The State v. Abbey, 29 Vt. 60, 66;
The State v. Keen, 34 Maine, 500;
The State v. Wade, 34 N. H. 495.

3 The State v. Barker, 18 Vt. 195.

4 Commonwealth v, Maxwell, 2 Pick.
139.

6 Elkins v. The State, 13 Ga. 435.
And see, to the like effect, Howe v. The
State, 10 Ind. 423; Brutton v. The
State, 4 Ind. 601 ; Kinser v. The State,
9 Ind. 543. The illustrations of this
principle are very numerous. Thus, in
England, Stat. 8 & 9, Will. 3, ¢. 26,
§ 6, provided, “ that, if any person or
persons shall, &¢. take, receive, pay, or
put off any counterfeit milled money, or

any milled money whatsoever unlaw-
fully diminished, and not cut in pieces, at
or for a lower rate or value than the
same by its denomination doth or shall
import, &c., they shall be guilty of fel-
ony”; and an indictment which made
no mention of the money not being cut
in pieces was held to be insufficient.
“The court,” says the report, “ was
clearly of opinion that the indictment
was bad; for the words ‘ not cut in
pieces’ are a material part of the de-
scription of the offence.” Rex v. Palm-
er, | Leach, 4th ed. 102, And see
1 East P. C. 166, 167; post, § 382,
note, par. 3,

[271]
§ 880 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

dictment under the statute must, like other indictments,
contain such negative averments as are necessary to show
affirmatively an offence. This is a proposition not easily
applied in practice ; and it is one of no very extensive use,
since ordinarily the negative is matter of defence to come
from the prisoner. But, in the language of Starkie, it is a
general proposition “ that no indictment is sufficient which
alleges an act or omission in itself innocent, unless it proceed
to disclose circumstances which render such act or omission
illegal.”’! And within this general doctrine, and perhaps in
some circumstances in which even this doctrine does not ap-
ply, there may be and sometimes is a necessity to allege a
negative in order to show affirmatively a prima facie case of
an offence committed. For illustration: a statute of Con-
necticut made it a penal offence for any person to set up a
school for the instruction of colored persons, not inhabitants
of the State ; or to “instruct or teach in any school, acade-
my, or other literary institution whatever, in this State; or
harbor or board, for the purpose of attending or being
taught or instructed in any such school, academy, or litera-
ry institution, any colored person who is not an inhabitant of
any town in this State, without consent in writing first ob-
tained of a majority of the civil authority, and also of the
selectmen of the town,” &c. Thereupon a person was pro-
ceeded against by criminal information, under the third
clause of the statute, for harboring colored children not in-
habitants of the State, to be instructed, &c. It was alleged in
the information, that this harboring was without the license
required ; but it was not alleged, that the school was unli-
censed. And the court were of opinion, that, by construction
of the statute, it would not be an offence to harbor such chil
dren, without license, to attend a licensed school ; therefore,
that, for the want of this negative averment, where, indeed,
its absence did not create a literal variance, the information
was insufficient.2 Again, it was in South Carolina made
penal for a sheriff or coroner to neglect to return an execu-
tion lodged in his office: “ Provided, nothing herein contained

11 Stark. Crim. Pl. 2d ed. 171, 2 Crandall v, The State, 10 Conn. 339.
[272]
CHAP. XX.]

INDICTMENTS UPON STATUTES. § 381

shall be construed to compel any sheriff or coroner to return
any executions in their offices expressly lodged to bind prop-
erty, and so marked by the persons lodging the same.”
Here, as the proviso stood separate from what went before,
there could be no question of variance ; yet it was held, that
a declaration on the statute must negative the matter of the
proviso." And, though there may possibly be some question,
whether or not this decision accords with the current of ad-
judication upon the matter of drawing pleadings upon statutes,
it presents to us a strong claim when we consider, that, omit-
ting all allusion to what is set down in the proviso, there can
hardly be made out a prima facie case against the defendant.

§ 881. Thirdly. Where there is no question of variance,
such as is mentioned in the section before the last, the indict-
ment need not, by way of negative, introduce matter of de-
fence, when it is drawn on a statute, any more than when it
is at the common law. Thus, a statute of Vermont provided,
that, “if any person who has a former husband or wife living
shall marry another person, or shall continue to cohabit with
such second husband or wife in this State, he or she shall,
except in the cases mentioned in the following section, be
deemed guilty of the crime of polygamy, and shall be pun-
ished,” &c. Then, in the next section, comes the provision,
“that this act shall not extend to any person whose husband
or wife has been continually beyond the sea, or out of the
State, for seven years together, the party marrying not
knowing the other to be living within that time ; nor to per-

1 Mills v. Kennedy, 1 Bailey, 17. I
have alluded to the differences of mean-
ing attached to the term “ enacting
clause.” Ante, § 377. Giving to it a
meaning broader than it sometimes re-
ceives, the learned judge who pronounc-
ed the opinion in this case put it upon
the common ground already mentioned.
Ante, § 378. He said: “ It is well es-
tablished, that, in declaring upon penal
statutes, where there is an exception in

another and subsequent clause, then it is
matter of defence, and the other party
must show it, to exempt himself from
the penalty. The very clause of the
act which imposes this penalty provides,
‘that nothing,’ ” &c. p. 19. This pro-
viso corresponds, in strictness of lan-
guage, to the proviso in the statute de-
clared upon in Steel v. Smith, 1 B. &
Ald. 94, where it was held not to be
necessary to negative the matter of the

the enacting clause, the plaintiff must
show, that the defendant is not within
the exception. If the exception be in

proviso, and the judges did not consider

it to be within the enacting clause,

And see post, § 381, 382 and note.
[273]
§ 382 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

sons divorced, or when the marriage has by decree of the
court been declared null and void ; nor to persons when the
former marriage was within the age of consent, and not after-
wards assented to.” Now, the matter mentioned in the lat-
ter of these two sections is plainly such as, on ordinary prin-
ciples, should be shown in defence, not being necessarily to
be negatived in the indictment ; consequently the court held,
that, though there was a reference in the former section to
the latter, an omission of all allusion to the subject of this ref-
erence did not create a variance, and an indictment drawn on
the former section alone, and without the negative, was
good.t

§ 382. Fourthly. In a statutory offence, it depends very
much, though not exclusively, on the words of the statute
whether a particular matter is one of defence, or whether the
negative of the matter enters into the definition of the crime.
Therefore, as a general rule, we have what has already been
laid down, namely, “if there is an exception in the enacting
clause, the party pleading must show that his adversary is not
within the exception ; but, if there be an exception in a sub-
sequent clause, or a subsequent statute, that is matter of de-
fence, and is to be shown by the other party.””? This is the
leading rule upon the subject now under consideration ; and it
has become such, not because it is in its nature more impor-
tant than the others, but because it is found to be practically
applicable in the majority of the cases, and sufficient of itself
for their determination. Indeed, it has not unfrequently been
attempted to bend to this rule, cases which are really gov-
erned by some other rule.? This will more fully appear on
perusal of the principal note attached to the present section.

1 The State », Abbey, 29 Vt. 60.
See also, on the subject of this section,
post, § 382, note, par. 5 & 6,

2 Ante, § 378.

8 Let us, in this connection, take a
survey of some of the decisions and ju-
dicial dicta relating to this entire sub-
ject. Of judicial dictu, the following
may be regarded as indicating the gen-
eral current. The reporter's head-note

[274]

to the case of Steel v. Smith,1 B. &
Ald. 94, is, —‘* Where an act of parlia-
ment, in the enacting clause, creates an
offence and gives a penalty, and in the
same section there follows a proviso
containing an exemption which is not
incorporated with the enacting clause
by any words of reference, it is not
necessary for the plaintiff, in suing for
the penalty, to negative such proviso
CHAP. XX. ]

INDICTMENTS UPON STATUTES.

§ 383

§ 883. Fifthly. If, in those circumstances in which it is not
necessary to negative the exception or proviso, the pleader

in his declaration.’ And Bayley, J.,
speaking of the particular matter before
the court, observed: “I cannot say that
the proviso is a part of the same sen-
tence; for, if it had been omitted, the
preceding sentence would have been en-
tire. I admit, that, where there is an
exception so incorporated with the en-
acting clause that the one cannot be
read without the other, there the excep-
tion must be negatived. The rule is
laid down by Treby, C. J., in Jones v.
Axen, 1 Ld. Raym. 119, 120, ‘ that,
where the exception is incorporated in
the body of the clause, he who pleads
the clause ought also to plead the ex-
ception ; but, when there is a clause
for the benefit of the pleader, and after-
wards follows a proviso, which is against
him, he shall plead the clause, and leave
it to the adversary to show the provi-
so.’” p. 99. In a recent New Hamp-
shire case, Eastman, J. said: “ The
rule upon this subject is this, that, where
the enacting clause of the statute de-
ascribes the offence with certain excep-
tions, it is necessary to state all the cir-
cumstances that constitute the offence,
and to negative the exceptions ; but,
where there are exceptions and provisos
contained in separate clauses or pro-
visions of the statute, they may be
omitted in the indictment, and the re-
spondent may show them in his de-
fence.” The State v. McGlynn, 34 N.
H. 422,426. In aSouth Carolina case,
Nott, J. said: “ It is contended, that it
is not necessary to state, in an indict-
ment, that the defendant does not come
within the exceptions of the act, or
to negative the provisos it contains,
This appears to be a correct position,
when the provisos and exceptions are
in distinct clauses of the act. But if
they are contained in the enacting
clause, it will be necessary to negative
them, in order that the description of
the crime may, in all respects, corre-

spond with the act.”” Reynolds v. The
State, 2 Nott & McC. 365. In Maine,
Tenney, J. stated the matter thus :
“Where an offence is created by stat--
ute and there is an exception in the
enacting clause, the indictment must
negative the exception. But if there
be a proviso, which furnishes matter of
excuse for the defendant, it need not
be negatived in the indictment, but he
must plead it.” The State v. Godfrey,
24 Maine, 232, 234. For similar dicta,
see, among other cases, the following :
Commonwealth v. Hart, 11 Cush. 130,
1 Ben. & H. Lead. Cas. 250, and see
particularly the note in the latter place ;
Brittin 7 The State, 5 Eng. 299 ; The
State v. Gurney, 37 Maine, 149; The
State v. Sutton, 24 Misso. 377; Va-
vasour v. Ormond, 6 B. & C. 430, 432;
The State v. Shaw, 35 N. H. 217; The
State v. Miller, 24 Conn. 522; Hinck-
ley v. Penobscot, 42 Maine, 89; Metz-
ker v. People, 14 Ill. 101 ; The State
v. Abbott, 11 Fost. N. H. 434.

2. “ The reason” of the rule under
consideration is, to use the language of
Metcalf, J. “simply this: Unless the
exception in the enacting clause of a
statute, or in the general clause of a
contract, is negatived in pleading the
clause, no offence or no cause of action
appears in the indictment or declara-
tion, when compared with the statute
or contract. Plow. 410. But when the
exception or proviso is in a subsequent
substantive clause, the case provided
for in the enactment or general clause
may be fully stated without negativing
the subsequent exception or proviso.
A prima facie case is stated, and it is
for the party for whom matter of excuse
is furnished by the statute or the con-
tract to bring it forward in his defence.”
Commonwealth vo. Hart, 11 Cush. 130,
135.

3. Thus, to illustrate this matter, if
a statute provides, that no person shall,

[275]
§ 888

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK M1.

does negative it, this part of the indictment may be re-

jected as surplusage.

except so and so, do work on the Lord’s
day, the indictment must, as we have
seen, ante, { 379, negative the excep-
tion, or, according to the doctrine as
stated in our text, there will be a vari-
ance ; or, again, according to the way of
putting it which we are now -consider-
ing, there will not be a full offence set
out. Commonwealth v. Hart, supra, p.
135. But, if there is a statute of this
general sort, not containing the excep-
tion, and then in the next section it is
provided, ‘that charity, or necessity on
the part of the customer, may be shown
in justification of the violation of the
last preceding section,” Brittin v. The
State, 5 Eng. 299; or, if there is any
other like exception contained in a sep-
arate clause or section, The State v.
Sutton, 24 Misso. 377; The State v.
Shiflett, 20 Misso. 415; the indictment
will be good though it does not nega-
tive such matter. The same distinction
runs through the cases making punish-
able the sale of intoxicating liquor
without license. Thus, in an old case,
Stat. 9 Geo. 2, c. 23, having made
various regulations on the subject, pro-
ceeded as follows: Ҥ 12. Provided
always, that this act shall not extend to
any physicians, apothecaries, surgeons,
or chemists, as to any spirits or spirit-
uous liquors which they may use in the
preparation or making up of medicines
for sick, lame, or distempered persons
only.” And it was held that a con-
viction on the other provisions of the
statute need not negative this matter.
“The true distinction,” said the court,
“is, where the extenuation comes in by
way of proviso or exception”; there,
it need not be pleaded. Rex. v. Bryan,
2 Stra. 1101. And in this country,
all such provisos and exceptions, even
though they are contained in the same
section with the clause in which the
indictment is drawn, may be disregard-

[276]

In other words, it need not be proved ;

ed; that is, they need not be negatived
in the indictment. Commonwealth o.
Edwards, 12 Cush. 187; Common-
wealth v. Hart, supra. But we have
seen, ante, § 379, that exceptions of this
sort, which come within what is called
the enacting clause, must be negatived.
Thus also, where a statute provides,
that, if any person shall play “at any
game or games with cards or dice, &c.,
except the games of billiards, bowls,
chess, backgammon, drafts, or whist,
when there is no betting on said games,”
he shall be punished in a way pointed
out, the indictment on the statute must
negative the excepted matter. Rey-
nolds v. The State, 2 Nott & McC. 365.
And there are other illustrations of the
same doctrine. See The State 2. Black,
9 Misso. 681 ; Schneider v. The State,
8 Ind. 410; Rex v. Pratten, 6 T. R.
559.

4. We saw, in the last paragraph
(and see also par. 1), that the mere
fact of the exception or proviso being
found in the same section of the statute
which contains the clause on which the
indictment is drawn, does not necessa-
rily require it to be negatived. See also
The State v. Miller, 24 Conn. 522;
The State v. Powers, 25 Conn. 48;
Clark v. The State, 19 Ala. 552; Wells
v. Iggulden, 3 B. & C. 186. A fortiori,
therefore, if the exception or proviso
is found in a subsequent section, or in a
subsequent statute, it need not be neg-
atived. Colson v. The State, 7 Blackf.
590 ; Commonwealth v. Hill, 5 Grat.
682; Metzker v. People, 14 Ill. 101;
Bouser v. The State, 1 Smith, Ind.
408; Rawlings v. The State, 2 Md. 201;
The State v. Shaw, 35 N. H. 217; The
State v. Gurney, 37 Maine, 149; The
State v. Wade, 34 N. H. 495; Rex uv.
Pemberton, 2 Bur. 1035.

5. Wenow come to the consideration
of a class of cases which the single rule
CHAP. XX.]

or, if it is defectively alleged,

defect.?

INDICTMENTS UPON STATUTES.

§ 384

no harm will come from the

§ 884. Sixthly. It is not necessary that the negative aver-

stated in the section to which this note
is attached, fails to reconcile. Either a
part of these cases are wrongly decided,
or the accompanying rules given in our
text, in other sections, must have an
existence in the law also. Judge Met-
calf, who seems to have limited his dis-
cussion to the one rule,says: ‘“ There
is a middle class of cases, namely,
where the exception is uot, in express
_ terms, introduced into the enacting
clause, but only by reference to some
subsequent or prior clause, or to some
other statute. As where the words ‘ ex-
cept as hereinafter mentioned,’ or other
words referring to. matter out of the en-
acting clause, are used. The rule in
these cases is, that all circumstances of
exemption and modification, whether
applying to the offence or to the per-
son, which are incorporated by reference
with the enacting clause, must be dis-
tinetly negatived. Verba relata inesse
videntur.” Commonwealth v. Hart, 11
Cush. 130, 187. For this proposition
he refers to Rex v. Pratten, 6 T. R.
559 ; and Vavasour v. Ormond, 6 B.
& C. 430, 432. These authorities sus-
tain the dictum; but, as we have seen,
ante, § 375, Chitty lays down direct-
ly the opposite doctrine, and supports
it equally well by Southwell’s case,
Popham, 93, and by Hawkins, 2 Hawk.
P. C. c. 25,§ 113. Iam not aware of
any American case which sustains the
dictum of Metcalf, J., though there may
be such. On the contrary, Common-
wealth v. Hill, 5 Grat. 682, 690, 691,
expressly sustains the doctrine of Chit-
ty and of Hawkins. Other cases hold
the indictment good, though the matter
thus referred to is not negatived. The
State v. Abbey, 29 Vt. 60 ; The State
v. Powers, 25 Conn. 48 ; The State v.
Miller, 24 Conn. 522, And see The
State v. Palmer, 18 Vt. 570; Hart v.
Cleis, 8 Johns, 41. The true doctrine

VOL. L. 24

plainly is, that, in these cases, if the
matter thus referred to is such as ought,
on the general principles of pleading, to
be alleged by the party assuming the
burden of the charge, then it should be
brought within the indictment by the
proper negative averments ; if not, then
no allusion to it need be made. And
see The State v. Abbey, supra; The
State v. Miller, supra; ante, § 379 -
381.

6. And there are other cases which
appear also to have proceeded on the
principle just mentioned. Thus, it be-
ing provided by Stat. 48 Geo. 3, c. 129,
§ 2, “ that every person who shall, &c.,
steal, &c., any money, &c., from the per-
son of any other, whether privily with-
out his knowledge or not, but without
such force or putting in fear as is suf-
Jicient to constitute the crime of robbery,
or who shall be present, aiding and abet-
ting therein, shall be liable,” &c., it was
held not to be necessary, in an indict-
ment, to negative the words thus set
out in italics, Rex v. Pearce, Russ. &
Ry. 174; Rex v. Robinson, Russ. &
Ry. 321. And see, to the like effect,
Rex v. Baxter, 5 T. R. 83.

7. It remains to be observed, that, in
some of the books, a distinction is taken
between indictments, and summary con-
victions before justices of the peace ;
greater strictness in negativing the ex-
ceptions being required, it is said, in the
latter class of cases than in the former.
We have seen, that, in some respects,
our courts have deemed it admissible to
be less strict in these cases than in the
other. Ante, § 242, 247 and note. And
it is believed that no such discrimina-
tion, involving a demand of greater
strictness in the proceedings before mag-
istrates, would be allowed by the courts
of this country. See 8 Am. Jur. 244;
1 Ben. & H. Lead. Cas. 262.

1 Rex v. Hall, 1 T. R. 320.

[277]
§ 3884 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

ments should be made in strict conformity to the exact words
of the statute ; whatever amounts to a substantial negative is
sufficient! “It has been repeatedly decided by this court,”
said the judge in a Massachusetts case for the illegal sale of
intoxicating liquor, “ that the words ‘ not being duly appoint-
ed and authorized therefor,’ sufficiently negative all legal
authority.” ? And in a case where the direct allegation neces-
sarily involves the negative one, the latter need not be other-
wise made.2 But where, in an indictment for Sabbath
breaking, the exception in the statute was “ work of necessi-
ty,” and the exception in the indictment was “ work of daily
necessity,” the negative was held to be insufficiently made ;
because a work of necessity, contemplated by the statute,

may not always be one of “ daily ” necessity.*

1 The State v. Keen, 34 Maine, 500.

2 Commonwealth v. Roland, 12 Gray,
132.

8 Sword v. The State, 5 Humph. 102;
Crane v. The State, 3 Ind. 193. An il-
lustration of this principle is the follow-
ing : A statute provided, that “every per-
son who shall be duly convicted of keep-
ing any E. O. table, or any other kind
of gaming table, billiard tables excepted ;
at which the game of faro, equality, or
any other game of chance shall be play-
ed for money, shall,” &c. The indict-
ment set out, that the defendant “‘ unlaw-
fully did keep a certain gaming table,
called a faro table, at which said gaming
table, unlawfully kept as aforesaid, the
game of faro was then and there unlaw-
fully played for money,” and the indict-
ment was held to be sufficient. The
court considered, that the rule requiring
exceptions in the enacting clause to he
negatived, rests on the necessity of set-
ting out a complete offence against the
defendant : “ But,” added Dorsey, J.,
“to apply it to a case like the present,
where the charge preferred, ex natura rei,
as conclusively imports a negative of
the exception as if such negative had
been in express terms, would violate the
soundest principles of construction ; and

[278]

give to the rule an universality of opera-
tion which its terms do not import, and
was never contemplated in the decisions
or commentaries to which it owes its
birth.” The State v. Price, 12 Gill &
J. 260, 262.

* The State v. Stone, 15 Misso. 513.
In Indiana it was laid down, that it is
not necessary an indictment should neg-
ative every conceivable fact which might
change. the character of the offence.
The application of this principle in the
particular case, was, to use the words
of Stuart, J. as follows: ‘“ The statute
reads, that, if a licenced grocer, &c.,
* sell, &c., to a minor, without the con-
sent of his parent or guardian.’ The
indictment runs, ‘ without the consent
of his parent,’ omitting the words ‘ or
guardian.’ It is possible that one or
both of the minor’s parents were dead,
possible that he had a guardian. But
the presumption in favor of the parent
being alive and competent to discharge
the duties which that position imposes
may be fairly indulged.” Consequent-
ly the indictment was held to be good.
The State v. Shoemaker, 4 Ind. 100,
101. This decision may perhaps be
correct ; but it will hardly be safe for the
practitioner to assume, that the courts
CHAP. XX.] INDICTMENTS UPON STATUTES. § 385

§ 385. The discussions throughout this chapter relate
to topics upon which there is much room for differences of
opinion ; yet, on the whole, the rules themselves may be
deemed to be pretty well settled. In the application of the
rules to new cases, some diversities of judicial decision will
necessarily arise. It should be remembered, however, that
these rules do not, more than do other rules in the law, oper-
ate each solely by itself. He who would correctly pass upon
any question of criminal pleading should understand all the
rules which pervade the entire subject, and then consider
what is their combined action upon the particular case.

of another State will follow it. Cer- vision to which it applies. The State
tainly, as a general proposition, the ne- v. Haden, 15 Misso. 447.
gation should be as broad as is the pro-

[279]
§ 3887 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

CHAPTER XXI.
STATUTES OF JEOFAILS AND AMENDMENTS.

§ 386. Unper the ancient common law, there were allowed
but few amendments in judicial proceedings. To render the
law, therefore, less rigorous in this respect, a considerable
number of statutes were passed in early times, permitting
amendments to be made in circumstances specifically pointed
out, and providing that the proceeding should not be set aside
for the defect which was thus made amendable. For instance,
Stat. 16 & 17, Car. 2, c. 8, § 1, is of this sort; and Lord
Hardwicke observed respecting it: “On that act an actual
amendment is never made, but the benefit of the act is at-
tained by our overlooking the exception.” Statutes of this
description were called statutes of Jeofails, “from,” says Ste-
phen, “J’ay faillé, an expression used by the pleader of for;
mer days, when he perceived a slip in his proceeding.” 2

§ 387. These statutes, it is perceived, were, in form, stat-
utes of amendments; and they are therefore sometimes called
statutes of amendments and jeofails. But it is perhaps more
nicely accurate, as mere matter of verbal precision, to speak
of those statutes which practically operate to cure the defect,
without any formal amendment being made, as statutes of
jeofails ; and to call those which contemplate an actual
amendment being inserted in the record, statutes of amend-
ments. The expression, statutes of amendments and jeofails,

1 Rex v. Landaff, 2 Stra. 1006, 1011. of amendment and jeofails is, that the

The same doctrine was held under a
statute of Tennessee. Said McKinney,
J.: “ There is no force in the objection
in the present case, that no application
was made to amend in the circuit court,
for the purpose of supplying the proper
averments, pursuant to the act of 1852.
The general rule in respect to statutes

[280]

amendment need not, in point of fact,
be made. The benefit of the statute is
obtained by the court’s overlooking the
exception, or considering the amend-
ment as made.” Eakin v. Burger, 1
Sneed, 417, 425.

2 Steph. Pl. 4th ed. App. xxxviii.
CHAP. XX1.] JEOFAILS AND AMENDMENTS.

§ 389

therefore, embraces two distinct classes of statutes, closely
analogous to each other.

§ 388. Those statutes of jeofails and amendments, which
were passed in England before the settlement of this country,
are all, probably, common law with us; but they did not ex-
tend to criminal cases, especially to the indictment ;! there-
fore they will not occupy our attention in these volumes.
““' With respect to an indictment,” says Starkie,? “ since it is
found upon the oath of a jury, there would be a manifest im-
propriety in making any alteration in it,’ which could possi-
bly affect the sense, without their consent. Amendments of
this kind have, in some cases, been made by the authority of
the court, even after verdict; but such instances are rare.*
In the second volume of Bulstrode’s Reports, Mr. J. Yelver-
ton cites the case of two persons who had been indicted be-
fore him for a capital felony. It appeared that the indictment
charged them in the singular number ; on that account he
stayed the proceedings, and took the opinion of the judges ;
eight or nine of whom—all who were present— clearly held
that the indictment was good and amendable ; and he adds,
that it was amended accordingly, and that both the defend-
ants were executed.” ®

§ 389. In the United States, there may perhaps have oc-
curred some instances of slight amendments, in matters of
form, having been allowed in the indictment, as at the com-
mon law ; but certainly none in matters of substance. And
it was held in Massachusetts, — in a capital case, — that the

1 4 Bl. Com. 375; 1 Stark. Crim. PI. 21 Stark. Crim. Pl. 2d ed. 259 et seq.

2d ed. 259 ; Atcheson v. Everitt, Cowp.
382, 392; Rex v. Sparks, 3 Mod. 78.
And see on this subject, Reg. v. Tutch-
in, 6 Mod. 268. None of the statutes
of jeofails extend to indictments ; there-
fore a defective indictment is not cured
by verdict. Commonwealth v. Morse, 2
Mass. 128 ; Brown v. Commonwealth, 8
Mass. 59, 65; Commonwealth v. Child,
13 Pick. 198, 200. The law of amend-
ments in Mississippi has been held not
to apply to criminal cases. Moore ».
‘The State, 13 Sm. & M. 259.

24*

® Per Lord Mansfield, 4 Bur. 2569.

4 2 Bulst. 35; and see 11 Hen. 6, f. 2
and f. 14, where a writ of forger of false
deeds was amended by inserting imag-
navit for imaginatus est.

5 See Mr. J. Powell’s observations
upon this case, 6 Mod. 283.

6 McKinley v. The State, 8 Humph.
72; McCorkle, v. The State, 14 Ind.
39; McGuire v. The State, 35 Missis.
366; The State v. McCarty, 2 Chand.
199. And see The State v. Schricker,
29 Misso. 265.

[281]
§ 391 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

indictment cannot be amended, even with the consent of the
prisoner.! Indeed it may well be doubted, whether, at the
present time, any American court would allow of any judi-
cial tampering with what the grand jury has found, though
but in matters of form, without express authority of some
statute. The caption, which with us includes the commence-
ment, we have already seen,” does not fall within the same
‘principle as the substance of the indictment. This may be
amended.® ”

§ 390. Starkie proceeds: “ Where an indictment appeared
to be insufficient, either for its uncertainty, or for want of
proper legal words, it was anciently the practice to award
process to the grand jury, if the court sat in the same county,
to come into court to amend it.”’4 If the grand jury are
not dispersed at the time when the prisoner is called upon to
plead, they, being in court, may there, in the presence of the
judge, amend such defects as the prisoner takes advantage of
by plea in abatement. And in some of our States it is cus-
tomary to have the grand jury in court, for this purpose, at
the arraignments.

§ 391. But beyond this, Chitty says: “It is the common
practice for the grand jury to consent, at the time they are
sworn, that the court shall amend matters of form, altering
no matter of substance; and mere informalities may, there-
fore, be amended by the court before the commencement of
the trial.”® Yet our American reports show few traces of

1 Commonwealth v. Mahar, 16 Pick. thenameof Jones. And thereupon we

120. s.P. People v. Campbell, 4 Parker
C. C. 386.

2 Ante, § 150.

3 The State v. Moore, 1 Ind. 548;
Moody z. The State, 7 Blackf.424. And
see Dennis v. The State, 5 Pike, 230.

4 1 Stark. Crim. Law, 2d ed. 260.

5 Thus, says Sir John Kelyng, “ at
the Old Bailey, the 7th December, 1664,
one Jane Jones, together with one
Thomas Wharton, was indicted for bur-
glary, and she pleaded herself to be
married to Wharton, on purpose to be
excused, being with her husband at the
burglary, and she refused to plead by

[282]

called for the jury, which found the in-
dictment ; and, in their presence, and
by their consent, we made the indict-
ment as to her name to be Jane Whar-
ton alias Jones. But we did not call
her Jane Wharton, the wife of Thomas
Wharton, but gave her the addition of
spinster, and then she pleaded to it;
and the court told her, that, if upon
her trial, she could prove that she was
married to Wharton before the bur-
glary committed, she should have the
advantage of it.” Jones’s case, J. Kel.
37.

8 1 Chit. Crim. Law, 297. I do not
CHAP. XXI.] JEOFAILS AND AMENDMENTS. § 892

such a practice being allowed with us.!. In New Hampshire
it was expressly rejected, the learned judge observing: ‘ This
practice has never been adopted in our courts ; and formerly
in England such amendments were inadmissible, except on
process issued to the grand jury to come in for this pur-
pose.” ? It is not easy to see on what common-law principle
a grand jury can authorize the judge to amend an indict-
ment, any more than to find one in their name originally.

§ 392. There are modern English statutes — none early
enough to be common law in this country — authorizing
amendments in the indictment. To the adoption of their
provisions entire with us, there would probably be constitu-
tional objections; though we have statutes which, to a good
degree, reach the same ends. For instance, in Virginia, there
are statutes of jeofails, which operate to a considerable extent
to cure defects in the indictment.* But here, when by mistake
a wrong name was inserted in an indictment for a misde-
meanor, and the indorsement on it showed the correct name,
the court held that the indictment could not be amended by

readily see what is the origin of this
English practice; but its date, I think,
must be comparatively recent. Chitty
refers, in this place, to 2 Hawk. P. C.
c. 25, § 98; and Bac. Ab. Indictment,
H.[G.],11. Hawkins, as he wrote and
left his book, says in the place thus re-
ferred to: “It seems to be the common
practice at this day, while the grand
jury who found a bill is before the
court, to amend it by their consent ina
matter of form, as the name or addition
of the party,” &c. And he refers, for
authority, only to the passage in Ke-
lyng, copied by me into the note to the
last section. The author of Bacon’s
Abridgment, in the place cited by Chit-
ty, simply copies from Hawkins what I
have copied here, adding no reference
to other authority. Now, the editors of
Hawkins have put into the margin, at
this place, the following : ‘ N. B. They
consent, at the time they are sworn,
that that court shall alter matter of

form, altering no matter of substance.”
Starkie, referring to no authority ex-
cept Hawkins, having doubtless before
him an edited edition, puts it thus:
‘And it is the common practice at pres-
ent to amend the indictment in matters
of form, whilst the grand jury are before
the court; for which purpose they for-
mally give their consent, that the court
shall amend matters of form, altering no
matter of substance.” 1 Stark. Crim.
Pl. 2d ed. 260.

1 See, however, ante, § 140; McGuire
v. The State, 35 Missis. 366.

2 The State v. Squire, 10 N. H. 558.

3 See Greaves Lord Campbell’s acts,
1 et seq. 29 ; Archb. New Crim. Proced.
99 et seq.; ante, § 117.

4 Trimble v. Commonwealth, 2 Va.
Cas. 143; Commonwealth v, Ervin, 2
Va. Cas. 337; Aldridge v. Common-
wealth, 2 Va. Cas. 447 ; Commonwealth
v. Bennet, 2 Va. Cas. 235.

[283]
§ 398

PLEADING AS RESPECTS THE INDICTMENT.

[BOOK IL

striking out the wrong name and inserting the right one.
In other States there are statutes authorizing, to some extent,
amendments in the indictment.? :

§ 893. The question of the constitutionality of these

amendments belongs to the next chapter.

We shall con-

sider amendments of the pleadings subsequent to the indict-
ment, of the information, of the record, and the like, in their

several appropriate places.

1 Commonwealth v, Buzzard, 5 Grat.
694.

2 In Alabama, there was passed in
1807, a statute which provided, that per-
sons accused of criminal offences should
not be set at liberty for irregularity in
the warrant or imperfection in the in-
dictment ; and this was held to apply
to all criminal cases, whether capital or
not. The State v. Brown, 4 Port. 410.
Where an indictment charges the larce-
ny of a bank note, and other articles,
and there is a variance between the in-
dictment and the proof in respect to the
bank note only, the court cannot, under
the 11th section of the 8th chapter of
the Alabama penal code, permit a nolle
prosequi to be entered that another in-

[284]

dictment may be preferred, on the refu-
sal of the accused to consent to an
amendment, so as correctly to describe
the bank note. The State v. Kreps, 8
Ala. 951. In Mississippi, an amend-
ment to an indictment by striking out
the allegation of sales of liquor “to di-
vers other persons,” has been held to be
allowable under the revised code. Roc-
co v. The State, 37 Missis. 357. But it
is not best to follow up these points of
mere local law. The reader is referred
to Morrison v. Dapman, 3 Cal. 255;
People v. Kelly, 6 Cal. 210; Common-
wealth v. Holly, 3 Gray, 458; Cain »v.
The State, 4 Blackf. 512; The State ».
Hart, 4 Ire. 246 ; Dennis v. The State,
5 Pike, 230.
CHAP. XXIL] | CONSTITUTIONALITY OF STATUTES. § 895

CHAPTER XXII.

THE CONSTITUTIONALITY OF STATUTES REGULATING THE INDICT-
MENT.

§ 394. THERE was a case brought before one of the New
York judges, to be decided on demurrer, wherein, the indict-
ment being for the larceny of a dog and a collar, it was stipu-
lated between the counsel for the people and for the defend-
ant, that the indictment should be considered as alleging the
dog to be tame, and as being silent respecting the collar.
The learned judge treated the stipulation as a nullity. He
said: “‘ The charge, as made, being a felony, the constitution
of this State requires the presentment or indictment of a
grand jury as a pre-requisite to trial; and, if the pleading
they file with the court could be remodelled by stipulations
between the counsel, the defendant would not be tried upon
the presentment of the grand jury, but rather upon the con-
sent of the counsel. This court cannot acquire jurisdiction
to try an offence by consent, nor can its jurisdiction over an
offence be changed by consent, so as to embrace any other
than that presented by the grand jury, where the action of
that body is requisite.” }

§ 395. It is difficult to resist the conviction, that the view
thus taken by the learned judge is sound in law; and that,
for the like reason, if a statute should authorize a material
amendment to be made in an indictment for an offence which
by the constitution of the State was punishable only by indict-
ment, the statutory direction would be a nullity. Yet, con-
sistently with this view, it has been held, that a statute by
which, if a defendant is indicted by a wrong name, and he
does not before pleading disclose his true name, the proceed-
ing against him shall be carried on in the name set out in the

1 People v. Campbell, 4 Parker C. C. 386, 387, Russell, J.
[285]
§ 398 PLEADING AS RESPECTS THE INDICTMENT. [BOOK I.

indictment, —if he puts forward another name as his true
one, it shall be entered on the minutes of the court, and after
such entry the trial and all other proceedings shall be had
against him by such other name, — is not in violation of the
constitutional provision under consideration.’ For plainly
the description by which the defendant is identified, whether
with or without name, or by one name or another, has noth-
ing to do with the substance of the indictment.

§ 396. And in Texas it was held, that a statute authoriz-
ing the amendment of an indictment as to the name, in a case
of misnomer, applies to an indictment which was pending at
the time the statute was passed; and that it is not, in such
application, an ex post facto law. “It is quite too plain to
admit of question,” said Wheeler, J., ‘‘ that the name by
which the party was indicted could have nothing to do with
the question of his guilt, the character of the offence, the
measure or degree of criminality or punishment attached to
it, or with the evidence which should be sufficient to warrant
a conviction.” ? 7

§ 897. In like manner, the constitutional provision requir-
ing prosecutions to be by indictment, does not prevent the
legislature from regulating by statute the form of this in-
strument.®

§ 398. The constitution of Massachusetts provides, “ that
no subject shall be held to answer for any crime or offence,
until the same is fully and plainly, substantially and formal-
ly, described to him.” Said the court, in one case: “ We
are of opinion, that this provision ....does in no respect
change the rules of the common law, and such has been the
construction put upon it from the adoption of the constitution
to the present time.” * The meaning of this seems to be, that
an indictment which is good at the common law, is good not-
withstanding this constitutional provision. And in another
case the same learned judge who pronounced the opinion just

1 The State v. Schricker, 29 Misso. 8 The State v. Mullen, 14 La. An.
265 ; People v. Kelly, 6 Cal.210. And 570,
see Dukes v. The State, 11 Ind. 557; * Commonwealth v. Davis, 11 Pick.
Commonwealth v. Holley, 8 Gray, 458. 482, 438, opinion by Shaw, C. J.

2 The State v. Manning, 14 Texas, 402.

[286]
CHAP. XXIL] | CONSTITUTIONALITY OF STATUTES. § 399

quoted, said, that this provision has “recognized and en-
forced, and extended to every mode in which a citizen can be
called to answer to any charge of crime,’ the common-law
rule by which “no one shall be held to answer to an indict-
ment or information, unless the crime with which it is intend-
ed to charge him is expressed with reasonable precision, di-
rectness, and fulness, that he may be fully prepared to meet,
and, if he can, to answer and repel it.” In other words, the
doctrine seems to be, that this provision of the constitution
has the effect to place beyond legislative abolition one of the
principal common-law rules respecting the frame of the in-
dictment, as regards matter of substance, though not as re-
gards matter of form. In illustration of the last-mentioned
point it was held, that, where a statute provided a heavier
punishment for the second commission of an offence than for
the first, and prescribed a short allegation by which the plead -
er was permitted to state the conviction for the first in an in-
dictment for the second ; adding, “ and such allegation... .
may be amended without terms, and as a matter of right” ;
the statute did not violate the constitution.”

§ 399. Similar to the provision of the Massachusetts con-
stitution, is that of the constitution of Mississippi. Its words
are; “In all criminal prosecutions, the accused shall have

viction. But such prior conviction is a
collateral fact, which can only be proved

1 Commonwealth v. Phillips, 16 Pick.
211, 213. And see Commonwealth v.

Wood, 4 Gray, 11.

2 Commonwealth v. Holley, 3 Gray,
458. Said Shaw, C. J.: ‘“ The object
of the Declaration of Rights was to se-
cure substantial privileges and benefits
to parties criminally charged; not to
require particular forms, except where
they are necessary to the purposes of
justice and fair dealing towards persons
accused, so ag to ensure a full and fair
trial. The statute certainly intends to
punish a party, on a second conviction,
with greater severity than on the first,
and therefore it is proper that the accus-
ed should understand, from the indict-
ment, that he is charged with an offence
aggravated by the fact of a prior con-

by record, and, therefore, in whatever
form it is alluded to or mentioned in the
indictment, it must be made certain by
the record when produced. There is
no danger, therefore, that a party can
be injured by such an ‘amendment ; be-
cause it must conform to the record ;
otherwise, the record will not prove it,
or sustain the averment of a former con-
viction. It is a part of the indictment
which derives no increased weight from
the finding of the grand jury, and one
upon which they pass no judgment, but
merely report the prior conviction, to
be verified and identified wholly by the
production of the record.” p. 459.

[287]
§ 400 PLEADING AS RESPECTS THE INDICTMENT. [BOOK II.

the right to demand the nature and cause of the accusation
against him.” Therefore when the act “to suppress trade
and barter with slaves,” declared it unnecessary to set out in
the indictment the name of the slave, or his owner, or the
kind or quantity of the produce bought or sold, it was held
to be, in this respect, unconstitutional ; and an indictment
drawn according to its directions, insufficient. Said Yerger,
J.: “The constitutional provision .... was intended to se-
cure to the accused such a specific designation of the offence
laid in the indictment as would enable him to make every
preparation for his trial, necessary to his full and complete
defence. We therefore think, that, under it, the accused is
entitled to demand ‘such a certain description of the offence
charged, and statement of the facts by which it is constituted,
as will fully identify the accusation, lest the grand jury should
find a bill for one offence, and the defendant be put upon
his trial for another, without any authority ; and also, that
the defendant may know what crime he is called upon to an-
swer, in order that he may be prepared with his evidence,
and that his conviction or acquittal may insure his subse-
quent protection, should he again be questioned on the same
ground ; and that he may be enabled to plead a previous
conviction or acquittal of the same offence in bar of any sub-
sequent proceedings against him.’”?! Still an indictment for
a felonious homicide would be good, if drawn in conformity
to a statute, though it did not point out the means, method,
or circumstances of the killing. It was also laid down, that
a failure to describe the offence according to this requirement
of the constitution, was a defect which could not be cured by
the defendant’s not taking the objection at the trial; but he
might avail himself of it at any stage of the cause, either in
the court below, or on a writ of error in the higher tribunal.?

§ 400. In Pennsylvania, the constitutional provision is in

? Murphy ». The State, 24 Missis. mon law. This decision was re-affirm-
590, 594, the learned judge quoting, as ed in Murphy v. The State, 28 Missis.

the reader perceives, from one of the 637. And see Norris v. The State, 33
text-books (Whart. Crim. Law, 81, 82), Missi. 373.

the leading rules which regulate the 2 Newcomb v. The State, 37 Missis.
substance of an indictment at the com- 383. Seo post, § 400, 407.

[288]
CHAP. XXII] | CONSTITUTIONALITY OF STATUTES. § 402

the same words as in Mississippi; and Strong, J., delivering
the opinion of the Pennsylvania court, observed: “ An in-
dictment must exhibit the ‘nature and cause of the accusa-
tion’ — that is, must set out the crime laid to the charge of
the accused ; but the mode in which the crime was committed,
the instrument with which the murder was effected, whether
it was held in the right hand or the left, whether the wound
was inflicted upon the head or the body, are entirely apart
from the nature and cause of the accusation.”” Therefore an
indictment for a felonious homicide, framed in pursuance of
a statute similar to the one in Mississippi, was held in like
manner to be good.!

§ 401. In Alabama, likewise, the provision exists in the
same words, in connection with other provisions relating to
the same subject. It was there held to be competent for the
legislature to dispense, by statute, with the averment in an
indictment for murder, that the offence was committed within
the body of the county in which the indictment was found,
-and to require that fact to be shown by the evidence. Also
it was laid down, that the indictment need not in all other
respects follow the common-law rules ; but it is sufficient if,
setting out the elements of which the offence is constituted, it
furnishes to the accused reasonable information of what he
is called on to answer. ‘+ The accusation of the commission
of the crime,” said Chilton, C. J., “is the gravamen of the
indictment. This cannot be dispensed with; but the partic-
ulars, as to,time, place, and circumstance, not constituting es-
sential elements in the crime, may be dispensed with in the
indictment by the statute, and be left as matter of proof.” ?

§ 402. The same form of the constitutional provision exists
also in Vermont. Here a statute regulating the sale of in-
toxicating liquors declared it to be sufficient in an indictment
or complaint before a magistrate to allege, ‘that the respond-
ent became a dealer in intoxicating liquors without having
license therefor, contrary to the form of the statute in such

1 Cathcart wv. Commonwealth, 1 693; re-affirmed, Thompson v. The
Wright, Pa. 108, 114. State, 25 Ala. 41.
2 Noles v. The State, 24 Ala. 672,

VOL. L 25 [289]
§ 408 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL.

case made and provided.” And a complaint drawn in these
terms was held by the court to be good. “It is objected,”
said Bennett, J., “ that the legislature, in adopting this form,
have violated the tenth section of the constitution of this
State, which provides, that in all prosecutions ‘the accused
shall have the right to demand the cause and nature of his
accusation.’ We think this complaint fully apprises the
accused of the cause and nature of the accusation alleged
against him, though it may not of the extent of. the penalty
for which the government may go; nor do we think that to
be necessary. The penalty results as a consequence of the
offence, and is not a part or parcel of the offence itself.”
It is to be observed, that, by the statute, the extent of the
punishment was made to depend upon the extent of sales
proved. “It is said,” continued the judge, “ that the com-
plaint is bad, because the court cannot tell what penalty to
inflict upon conviction. To this we answer, the penalty,
upon a general conviction, must be for a single sale and fora
quantity not exceeding twenty gallons ; that is, it must be for
the lesser offence. If a larger penalty is asked, the govern-
ment must see to it that a special verdict is returned, show-
ing the extent of the conviction. This would preserve the
rights of the accused, and enforce the law according to its
spirit and provisions.” ?

§ 403. The reader perceives, that we have thus traced the
line of adjudication respecting this constitutional provision till
it has led us from comparatively firm ground into quicksand,
out of which there seems to be no ascent. For if, notwith-
standing this provision, the legislature can make good a crim-
inal accusation in which the defendant is not even informed
with how many crimes he is charged, or with any one circum-
stance attending any one of them, but only that he “became”
an unlicensed “ dealer in intoxicating liquors,’’? where each
specific sale is a crime ; or, to take another turn in the quick-
sand, that he ‘ became’’ a murderer, where the killing of each
man is a crime, and the State is to prove as many men killed
as it can; or, to take in the sand one more turn and sink,

1 The State v. Comstock, 27 Vt. 553, 556.
[290].
CHAP. XXII] | CONSTITUTIONALITY OF STATUTES. § 405

that he “ became ” a criminal, leaving the prosecuting power
to show at the trial wherein; then, indeed, the provision of
the constitution has itself “become ”’ a cable of sand, which
can hold at anchor no legislative keel.

§ 404. Seeing, therefore, that construction must have been
somewhere at fault respecting the effect of this constitutional
provision, let us inquire what, in juridical reason, is its true
meaning. ‘The government,” it was well observed by
Fisher, J., in the Mississippi court, “in engrafting this pro-
vision upon its organic law, did not, as is by some erroneously
supposed, proceed upon a principle of tenderness for those
actually guilty of crime ; but upon a more wise and humane
principle, sanctioned by the experience of ages, that an inno-
cent person may be unjustly accused of crime, and to afford
him an ample opportunity when so accused to vindicate his
innocence. If government could be absolutely assured that
none but the really guilty would ever be put upon their trial
for crime, it would perhaps not trouble itself to prescribe
rules to govern such trials ; but, as this is utterly impossible,
it must act upon the principle, as far as possible, of protecting
the innocent and punishing only the guilty ; and almost all
the rules which govern courts on the trials of criminal prose-
cutions, have their origin in this principle.”! The construc-
tion which we are to seek, therefore, must be one which in
its effect will serve as a protection to innocent persons who
may be accused of crime.

§ 405. The common-law rules respecting the indictment
are such as the wisdom of the past has prescribed for the ac-
complishment of the following two objects, — first, to in-
form the accused of the nature and cause of the accusation ;
and, secondly, to facilitate the trial by drawing, in advance,
the outer lines within which the evidence must be confined.
But no one supposes that the latter of these two objects re-
quires greater particularity in the indictment than the for-
mer. When, therefore, the constitution of a State points out
the former object, and declares that the “ nature and cause ”’
of the accusation shall be set down in every indictment, it

1 Norris v. The State, 33 Missis. 373, 376.
[291]
§ 407 PLEADING AS RESPECTS THE INDICTMENT. [BOOK IL

directs the tribunals to adhere to the common-law rules;
provided we understand, at the same time, that there is to be
no impeachment of the wisdom of the past. But it seems to
be the view of all the judges who have spoken on the subject,
that, to some extent, the wisdom of the past may, in this
matter, be departed from ; in other words, that this constitu-
tional provision does not prevent the legislature from author-
izing some departures from common law forms. If this is so,
then the courts are permitted to give effect to a statute chang-
ing the common-law rules, when they clearly see+ that the
common-law adjudications are wrong in principle, and the
new form does not violate true legal principle.

§ 406. But if, under this constitutional provision, the
eourts are to travel in one direction away from the line of the
past, when the judges see that the common law has estab-
lished a rule not sanctioned by legal principle ; they are also,
under the like pressure from the opposite source, to travel
equally away from the line in the other direction. For it
has already been observed,? that, in some particulars, and
with respect to some offences, the common-law forms of the
indictment are not sufficiently favorable to defendants, to ac-
cord with just legal doctrine. If the judges see this to be so
in a particular case, they should, in obedience to this consti-
tutional provision, require greater minuteness in the indict-
ment than the common law prescribes.

§ 407. We saw, in the work on the Criminal Law,? that
the constitutional provision which protects a prisoner from
being put a second time in jeopardy for an offence, may, like
any other constitutional right, be waived by the person for
whose benefit it was established. In like manner, the pris-
oner may undoubtedly waive his rights under the provision
we are now considering.* It is a question not necessary to
be here discussed, what acts will amount to a waiver.®

1 See ante, § 27. 5 Compare with ante, § 399; and
2 Ante, § 22, query as to the doctrines, on this point,
8 Crim. Law, I. § 842-850. laid down in Newcomb v. The State, 37

4 And see Cochrane v. The State, 6 Missis. 383. See post, § 422 et seq.
Md. 400.

[292]
CHAP. XXII] © GENERAL FORM AND SUMMARY. § 409

CHAPTER XXIII.

A GENERAL FORM OF THE INDICTMENT, WITH A SUMMARY OF
DOCTRINES.

§ 408. Curry gives us the following general form of an
indictment : —

“ Essex, to wit. The jurors for our lord the king upon their oath pre-
sent, that C. D., late of the parish of West Ham, in the county of Essex,
laborer, on the thirty-first day of December, in the sixth year of the reign
of our Sovereign Lord George the Fourth, by the grace of God, of the
United Kingdom of Great Britain and Ireland king, defender of the faith,
with force and arms, at the parish of West Ham aforesaid, in the county of
Essex aforesaid, did, &c. [setting forth the particular offence; and, at the
commencement of every fresh sentence,’ stating, ‘and the jurors aforesaid,
on their oath aforesaid, do further present, that,’ &c. ;? and concluding, if it
be for an offence at common law, injurious to a particular individual, as well
as to the community, as follows]: to the great scandal, infamy, disgrace, and
damage of the said A. B., to the evil and pernicious example of all others,
in contempt of our said lord the king and his laws, and against the peace of
our said lord the king, his crown, and dignity.” *

§ 409. In the foregoing chapters we have considered in
what form the several parts should be drawn; and it will be
seen, that, in the above general form, there is much which
may be omitted. As suggestive to the reader, the following
is given as generally appropriate and sufficient in the United
States : —

1 That is, at the commencement of sential in afinished count. ‘The whole

every count subsequent to the first. But
see the next note.

2 Chitty observes, that this statement
is proper, and does not necessarily indi-
cate a new count ; referring to Rex v.
Haynes, 4 M.& S. 214, 221. In this
case the court held, that these words
alone did not constitute what went after
them a new count; there being, in what
went before, no such complete allega-
tions and no such conclusion as are es-

25 *

forms,” said Le Blanc, J. “ but one
count containing two introductions to
one grievance only.” Still I cannot but
think, that, though the strict law is so,
and very many forms to be found in the
books are so likewise, it is the neater
way to use these words, whose proper
office it is to introduce a new count,
only for this their legitimate purpose.
8 1 Chit. Crim. Law, 176.

[293]
§ 411 PLEADING AS RESPECTS THE INDICTMENT. [BOOK Il.

“The State of ——-——
county.

At a court of ————, holden at ————, in and for said county, the
jurors for said State and county on their oath present, that Richard Mar-
tin, of, &c., laborer, on the thirty-first day of December, in the year of our
Lord one thousand eight hundred and sixty-five, at , in said county
of , did, &c., [‘to the common nuisance,’ &c., in some special cases,]
against the peace of said State, and contrary to the form of the statute in
such case made and provided.” .

 

 

 

If a second count is to be added, the pleader will then,
beginning a new paragraph, say : —

“And the jurors aforesaid, on their oath aforesaid, do further present,
that,” &e. ‘

§ 410. There can be given no general form in which to set
out the offence itself. Hach offence has its particular forms,
and these will be considered in our second volume.

§ 411. The general result to which the rules of pleading,
as to the indictment, come, is the following: The indictment
must show on its face that it has been found by competent
authority, in accordance with the requirements of law; and
that a particular person mentioned therein has done, within
the jurisdiction of the indictors, such and such specific acts,
-at a specific time; which acts, so done, constitute what the
court can see, as a question of law, to be a crime. How
specific the indictment must be is a mixed matter of profes-
sional skill and science, not to be taught in a single para-
graph, but requiring many paragraphs; and to be learned by
study, by observation, and by practice.

[294]
BOOK III.

THE PLEADINGS SUBSEQUENT TO THE INDICTMENT.

CHAPTER XXIV.
THE SEVERAL PLEAS AND THEIR IMPORT.

§ 412. Wuen a person who has been indicted, is brought
before the court, he is, to use the technical word, arraigned.
The process of arraignment consists in reading over to him
the indictment, and asking him whether he is guilty or not
guilty of the offence therein charged against him. The
answer which he makes to this inquiry is ordinarily termed
the plea. There is one answer, however, called a demurrer,
which perhaps does not bear technically the name of a plea ;
and there is the motion to quash, which certainly does not ;
but, for the sake of convenience, we shall consider the answer
by demurrer, and the motion to quash the indictment, in the
same connection with pleas proper.

§ 413. The motion to quash is a proceeding quite by itself.
It will be explained in a chapter further on.? Starkie, hav-
ing already treated of this motion, says, that the defendant,
on the arraignment, if he does not stand mute or confess the
charge, “answers in one of the following ways: 1. By a plea
to the jurisdiction; 2. By a declinatory plea; 3. By a plea in
‘abatement of the indictment for some defect contained in it ;
4, By demurrer ; 5. By a plea in bar ; 6. By the general plea
that he is not guilty.” ?

1 1 Stark. Crim. Pl. 2d ed. 205 - 207. 8 1 Stark Crim. Pl. 2d ed. 310.
2 Post, c. xxvii.

[295]
§ 415 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

§ 414. We shall consider the order in which these several
defences are to be brought forward,! and the requisites of the
respective pleas,? in chapters further on. But a general view
of the matter, extracted from Starkie,? is the following : —

“T, The Plea to the Jurisdiction. By this plea, the de-
fendant totally denies the authority of the court to try him ;
as, where an indictment for rape has been found before the
sheriff in his torn, which he has delivered to the justices,
then, because the sheriff had no authority to take such an in-
dictment, the defendant may plead to the jurisdiction without
making any answer to the charge itself* So, if justices of
the peace should arraign a defendant for treason.6 But it
seems that the defendant cannot plead to an indictment be-
fore justices, that the offence was committed at some place
beyond their jurisdiction, for this would amount to no more
than the general issue.6 After a plea to the jurisdiction
overruled, it seems that the judgment should, in all cases, be
to answer over to the charge in the indictment.”

§ 415. “II. Declinatory Pleas. These were of two kinds:
first, the plea of privilege of sanctuary ; by which a defend-
ant, who had fled to a place of sanctuary, claimed under cer-
tain restrictions protection from process, and a right of being
remanded if taken against his will, without being compelled
to answer in any court of justice. But this privilege was
abolished in the reign of James the First.8 Secondly, the
benefit of clergy ; but, since no advantage can now be gained
by this plea, which the defendant would not be equally en-
titled to after conviction ; and since he would, by pleading it,
lose the chance of an acquittal, the benefit of clergy is rarely
pleaded ; but, if necessary, is prayed by the convict before
judgment.” ® In the United States, the plea of benefit of
clergy is, at present, nearly or quite unknown. Neither
have we the plea of sanctuary. Therefore the doctrine of

1 Post, c. xxvi. 6 See Trem. P. C. 271.

2 Post, c. xxvii, XXXvVi., XXXVii. 7 Rex v. Holles, 1 Trem. P. C. 302.
8 1 Stark. Crim. Pl. 2d ed. 310 - 320. 8 21 Jac. 1, c. 28.

4 9 Hale P. C. 256; 22 E.4. 22, 9 2 Hale P. C. 236; 4 Bl. Com. 333.
> 2 Hale P. C. 256. i0 Crim. Law, I. § 717.

[296]
CHAP. XXIV.] THE PLEAS AND THEIR IMPORT. . § 419

declinatory pleas appears to have no practical application
with us.

§ 416. “III. By plea in abatement. Pleas in abatement
are founded either on some defect apparent on the face of the
record, or upon some matter of fact extrinsic of the record,
which render it insufficient.

§ 417. “Ist. On some defect apparent upon the record... .
It seems in general, that any defect, which in any stage of
the criminal proceeding will vitiate the indictment, may be
taken advantage of by plea in abatement.! And some defects
must be pleaded in abatement, if insisted upon at all; such
as the want of an addition, or the insertion of an improper
one. So under the Stat. 7 Will. 8, c. 8, exceptions to
indictments for high treason (whereby any corruption of
blood may be made), on the ground of mis-writing, mis-
spelling, false or improper Latin, must be taken before any
evidence given upon such indictment, and shall be no ground
of arresting the judgment. But little advantage is, in gene-
ral, to be gained by a plea of this kind; since, with a few ex-
ceptions, the defendant will be entitled to the advantage of
his objection after the trial ;? and, should his plea be allowed,
the court would direct a new bill to be sent out to the grand
jury ; or, if they had been discharged, would detain the pris-
oner till the next assizes or sessions.*

§ 418. “Qndly. Upon such defects as arise from facts de-
hors the record. If the defendant be indicted by a wrong
name, or be described by an improper addition,®? he may
plead it; and,if the fact be found for him, the indictmeut
shall be abated.”’® There are also various other grounds of
abatement, not of record.

§ 419. “IV. By demurrer. By a demurrer the defend-
ant refers it to the court to pronounce, whether, admitting
the matters of fact alleged against him to be true, they do, in
point of law, constitute him guilty of an offence sufficiently
charged against him. And a demurrer puts the legality of

1 2 Hale P. C. 236. 4 Ib.; 2 Hawk. P. C. c. 34, § 2.
2 Ante, § 121, 122, 129, 130. 5 See ante, § 130.
8 2 Hale P. C. 237. 6 2 Hale P. C. 238,

[297]
§ 421 “ PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK I.

the whole of the proceedings in issue, as far as they judicially
appear; for the court is bound to examine ! the whole record,
to see whether they are warranted in giving judgment upon
it; and it is open to objections, not only to the subject-matter
of the indictment, but also to the jurisdiction of the court in
which the indictment was found.? But this plea is not very
frequently resorted to in practice, since the defendant may
take advantage of the same exceptions after a conviction by
motion in arrest of judgment.®

§ 420. “ V. Plea in bar. By a plea in bar the defendant
shows, by matter extrinsic of the record, that the indictment
is not maintainable. The most usual special pleas, in answer
to a charge of felony, consist either of matter of fact mixed
with matter of record, or, secondly, of matter of record only.
The former are of three kinds: 1. Auter-foits acquit. 2.
Auter-foits convict. 3. Auter-foits attaint. Of the latter kind
is the plea of pardon.” *

§ 421. In the order of the present volume, the special pleas
in bar, mentioned in the last section, will be reserved to be
treated of considerably further on. But to proceed : —

“VI. Plea — General Issue. By the general plea, that
he is not guilty of the treason or felony alleged against him,
the defendant denies the whole of the charge; and he may
give his special defence in evidence, though the matter of
fact be proved against him.” ® This is the plea upon which,
in ordinary cases, the trial on the merits proceeds.

1 Rex »v. Fearnley, 1 T. R. 316. changed by statute as to render demur-
2 1 T. R. 320, i. e. supposing the in- rers much more common than they used

dictment to have been removed into to be.

another court by certiorari or otherwise. 41 Stark. Crim. Pl. 2d ed. 310-
8 2 Hale P.C. 257. Thecommon-law 320. ‘

rule upon the point last mentioned in 5 Post, c. xxxvi., xxxvii.

the text is, in many of our States, so 6 1 Stark. Crim. Pl. 2d ed. 338, 339.

[298]
CHAP. XXV.] WAIVER OF RIGHTS. § 423

CHAPTER XXV.

THE DOCTRINE OF WAIVER OF RIGHTS.

§ 422. We have already mentioned the general doctrine,
that a party may waive a right which the constitution of the
State, or of the Nation, secures to him, if he will! And the
same principle, a fortiori, applies to a mere statutory or com-
mon-law right. This is the general doctrine; but, in the
law, as in nature, there are opposing forces ; and a principle
which, of itself, would bear us uniformly in a particular direc-
tion, fails often in practice to produce this, its legitimate re-
sult, because it encounters another principle which presses in
a different direction. In the latter case, either one or the
other of these principles gives way for the time being ; or,
the two operating in conjunction, they conduct to a conclu-
sion which would come from neither one of them alone.
Therefore, though the doctrine, that a party may waive a right
which the law gives him, seems to be universal, still it is not
so in its practical workings. It will be the purpose of this
chapter to look a little into the general doctrine, with its lim-
itations ; leaving many of its applications to be considered in
future pages.

§ 423. We have seen,? that anciently, in England, prison-
ers on trial for treason or felony were not allowed counsel to
assist them in their defence on the main issue before the jury ;
but it was deemed to be a part of the duty of the judges to
act as counsel for them.? Now, it is plain, that, when the
law was in this condition, there was but limited room for the
operation of the doctrine of the waiver of rights; because, if
the judge counselled the prisoner to a particular course, and
by following it he omitted to take an advantage which the

1 Ante, § 407. 3 Foster, 231, 2832; 2 Hawk. P. C.
2 Ante, § 11. 39, §.1, 2
- 299)
§ 425 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK IM.

law gave him, this erroneous counsel, proceeding as it did
from the court, was a judicial error of which he could avail
himself on an application to have the benefit of the right
which otherwise would have been waived. But, another
thing: when, for the reason just mentioned, the rule that a
particular right could not be waived, had become established |
in the law ; and then, on counsel being allowed the prisoner,
and the judge ceasing to advise him, the reason of the rule
had ceased ; it might not be obvious whether or not the doc-
trine of waiver would cease also in these altered circumstan-
ces, in obedience to the maxim, Cessante ratione legis, cessat
ipsa lex.1 Some tribunals would decide a particular question
of this sort one way; some another ; the ancient and modern
law would be in conflict ; the modern cases would not har-
monize with one another; the whole matter would become
a jumble ; chaos original would seem to pervade the law of
the subject: this, indeed, is what we find to exist, at the
present time, in our own country.

§ 424. But suppose we apply, in these circumstances, the
rule that the law ceases with its reason ; still there may be
some other reason which will support, in some cases, the for-
mer doctrine ; but not in others. Thus, in a trial before a
jury, if the prisoner is asked to waive, for the ease and con-
venience of the jury, some common-law or statutory right, it
may be hard to tell him he can waive the right if he chooses,
and then to hold him to the consequences of his choice ; for,
though he might wish to have the benefit of the right, he might
not deem it politic to offend the jury by refusing; and it
might be hard, or even unjust, to compel a prisoner to decide
between discommoding, and to some extent offending, the
men in whose hands lay his liberty or his life, and relinquish-
ing a right which the law had given him. Some courts hold
prisoners, at least under some circumstances, to this kind of
hardship ; others do not; or, at least, the decisions under
this head are not uniform.

§ 425. Having, therefore, directed attention to these some-
what conflicting circumstances and propositions, we can do

1 Crim. Law, I. § 559, 561, 815.
[800]
CHAP. XXv.] WAIVER OF RIGHTS. § 426

no better than to add, in this chapter, a few statements con-
cerning what has been held ; and thus leave the subject to be
considered further, as occasion may require, in other chap-
ters ; and to be still further examined, from time to time, by
practitioners and judges, as new cases arise.

§ 426. By established rules of law, or by what are termed
general rules of court, adopted by the judges,! the dilatory
defences, or certain classes of them, must be presented by the
defendant at a particular period of the cause, or within a cer-
tain time after it is entered in court, or before some other
defence is made; and, if the defendant omits to take advan-
tage of the error in the way and time thus provided, he is
held to waive the objection. He cannot rely upon it after-
ward. Thus, in a civil case in Massachusetts, — it being re-
quired by statute that the suit shall be brought in the county
wherein either the plaintiff or defendant lives, the plaintiff
having alleged for himself a residence in the county in which
he brought the suit, and the defendant residing in another
county, — it is too late, after the defendant has answered to
the merits, and the term of the court has elapsed, for him to
plead in abatement the non-residence of the plaintiff. Even
if he did not know of the fact, still the court has no power in
law to permit him to withdraw his plea to the merits, and
plead this matter in abatement.?

1 Ante, § & after the defendants had put in a plea

2 Hastings v. Bolton, 1 Allen, 529.
Said Bigelow, C. J. : “ The court had
no power to allow the answer in abate-
ment to be filed. It was not merely the
exercise of an authority to permit the
defendants to amend their pleadings.
It went much further. It set aside the
well-established rule of law, that a dil-
atory plea must be filed within a certain
period of time after the entry of an ac-
tion, and it also deprived the plaintiff
of the benefit of the waiver of such a
plea by an answer to the merits.” p.
530. The reader need not have point-
ed out to him the distinction between
this case and the following. In one of
the lower courts of the United States,

VOL. I. 26

in bar, they moved the court, at its next
term, for leave to withdraw the plea,
and to plead in abatement that the
plaintiffs had alleged themselves to be
citizens of another State, but were in
reality the citizens of the same State
with themselves, in consequence of
which the United States tribunal had
not jurisdiction of the cause. The court
allowed the motion; and the plea in
abatement was filed and foynd to be
true by the verdict of a jury. There-
upon the petition of the plaintiffs was
dismissed ; and, on appeal, the decision
was held by the Supreme Court to be
correct. Said Campbell, J.: “An at-
tempt was made, according to the affi-

[301]
§ 427 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK IIL.

§ 427. At the same time there is allowed, even in criminal
cases, some latitude of amendment by way of withdrawing
pleas, and the like ; yet it would not be possible to state, on
this subject, a rule which would be everywhere accepted as
accurate. In Mississippi it was held, that amendments in the
course of the pleadings, such as the withdrawal of one plea
and substituting another, are, in cases of misdemeanor, allow-
able at the discretion of the court. And Handy, J., speaking
of the particular case under consideration, observed: “ The
second assignment [of error] is, that the court erred in per-
mitting the replication to be withdrawn, and a new one to be
filed, after issue joined on the first. This was a matter with-
in the discretion of the court; and its exercise does not ap-
pear to have worked any injury to the defendant, for it was
attaining the same end that would have resulted if his de-
murrer to the replication had been sustained. And the rule
in the courts of this country is to allow amendments of
pleadings in cases of misdemeanor; though, in England, they
were only allowed in cases of felony.”1 Probably a not in-
accurate expression of the American doctrine would be this:
that the judge may permit a pleading to be withdrawn, and
another one to be substituted, whenever by so doing he does
not violate any positive rule of law or of established prac-
tice; but that such a discretion will rarely, if ever, be exer-
cised in aid of an attempt to rely upon a mere dilatory or for-
mal defence. The application of this doctrine will depend
upon considerations connected with the particular local law of
the State in which the question arises.”

davit on which the motion was founded,
to confer upon the district court, by a
false and fraudulent averment, a juris-
diction to which it was not entitled un-
der the Constitution. If true, this was
a gross contempt of the court, for which
all persons connected with it might
have been subject to its penal jurisdic-
tion.” Eberly v. Moore, 24 How. U.
8. 147, 158.

1 Rocco v. The State, 37 Missis. 357,
366, referring to Barge v. Common-

[302]

wealth, 3 Pa. 262; Foster ». Common-
wealth, 8 Watts & S. 77; Common-
wealth v. Goddard, 13 Mass. 455, 456.
2 At the common law, there may be
amendments in the pleas, as well as in
the order in which they are introduced,
to be allowed at any proper time while
the pleadings are, as expressed in the
English practice, in paper, and before
they are enrolled. This doctrine ap-
plies as well in criminal cases as in civ-
il; and it is unlike the doctrine we dis-
CHAP. XXV.] WAIVER OF RIGHTS. § 428

§ 428. Where a waiver by the defendant leaves the record
destitute of an essential part, he may afterward take advan-
tage of the defect in it, notwithstanding the waiver. Thus
it is held in Wisconsin, that the court cannot supply an issue
after verdict, where there has been neither arraignment nor
plea, though the defendant consented to go to trial! But
where no such reason exists, a defendant may, either indi-
rectly by waiver, or directly by agreement, bind himself to a
particular thing in a criminal cause. There is a limit even
to this doctrine ; it is indistinct and perhaps variable ; nor
shall we find it wise to search much further in this place for
the shadowy bound. “ Where,” for a single illustration, “a
great number of people are indicted for a riot, they may
move that the prosecutor should name three or four of
them, and try it only against them, the rest entering into a
rule, if they are found guilty, to plead guilty too; and this
has often been done to prevent charges.” ”

cussed in a previous chapter, concerning
amendments to the indictment. Thus
where a defendant, indicted for marder,
pleaded a misnomer, and the attorney-
general replied, he was allowed after
this to amend his plea; ‘‘ because the
pleading was not perfected nor entered
upon record. . . . And the court held,
that, before judgment, while things were

in fiert and in agitation, they had a
power over all proceedings.” Rex v.
Knowles, 1 Salk. 47. And see Boniicld
2. Milner, 2 Bur. 1098, 1099.

1 Douglass v. The State, 3 Wis. 820.
See Fernandez v. The State, 7 Ala. 511.

2 Anonymous, sHolt, 635, 3 Salk.
317; 8.c. nom. Reg. v, Middlemore, 6
Mod. 212.

[303]
§ 431 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

CHAPTER XXVI.

THE ORDER IN WHICH THE PLEAS MUST BE PRESENTED.

§ 429. In the last chapter, the principle from which some
of the doctrines of the present chapter proceed, was brought
to view. Itis, that, unless a party takes an objection at the
time and in the manner prescribed by law, he waives it by
the neglect. He cannot avail himself of it otherwise.

§ 480. In the pleadings in civil causes, as the matter stood
at the common law, this principle has a well-defined force in
regulating the order in which the several pleas shall be
brought forward. Thus, according to Gould, dilatory pleas
must take the following order : —

1. To the Jurisdiction of the court.

2. To the disability of the person,

1. Of the plaintiff, and
2. Of the defendant.

3. To the count, or declaration.

4. To the writ; namely,

1. To the form of it, and
2. To the action of it.

And he adds: “ Any or all of these pleas may be used suc-
cessively, in one and the same case, if pleaded within the time
allowed for dilatory pleas by the rules of practice.” In other
words, when one plea has been overruled, and the party is
permitted to plead over, he may then bring forward any one
of the before-mentioned pleas, which, in the above order, is
subsequent to the one overruled, but not prior, and not of
the same class; neither, again, must the second plea be re-
pugnant to the first.1

§ 481. When we come to the criminal law, we find the
matter less plain, and perhaps not well settled. Chitty,

1 Gould Pl. c. 5, §1-8.
[304]
%
CHAP. XXVI.] ORDER OF THE PLEAS. § 432

speaking of the various pleas, dilatory and otherwise, used in
criminal cases, says: “ The following is a general outline of
these matters, in the order in which they naturally arise : —
1. Pleas to the jurisdiction.
2. Demurrers.
3. Dilatory pleas.
1. Declinatory of trial.
2. In Abatement.
4. Pleas in bar of the indictment.
1. Autrefois acquit.
2. Autrefois attaint.
3. Autrefois convict.
4. Convict of another felony, and had his clergy.
5. Matter of record, pardons, &c.
5. Pleas to the matter of the indictment.
1. Not guilty.
2. Special pleas.” !

§ 482. It is observable, that not quite all of these pleas are
practically known in the United States. It is observable also,
that this author does not say these pleas must always be plead-
ed in the order thus set down, and never in any other. But
he proceeds to make a further observation, in which he has
fallen into what is undoubtedly an error; though the same
error has also, in some instances, attended upon decisions of
courts ; and the effect has been to create much uncertainty
and confusion in the law. He says: “At common law,
there was but one rule which applied alike to civil and crimi-
nal proceedings, that the defendant must rely upon one
ground of defence, and that pleading double was never to be
admitted.”2 And though the rule was afterward altered by
act of parliament as to civil proceedings, the act did not ex-
tend to criminal. The truth, however, appears to be, that,
under the older common law, however it may be with the
modern, there was, in this respect, no similitude between the
civil and criminal departments ; and, in the criminal, the de-

1 1 Chit Crim. Law, 434. to 2 Eunomus, 141; Tidd, 8th ed. 706 ;
21 Chit. Crim. Law, 434, referring 1 Chit. Pl. 4th ed. 477, 478.
26 * [305]
-§ 433 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK IIL.

fendant might plead as many pleas at one time as his case
required.

§ 483. Hawkins, treating of the plea in abatement of an
appeal, says: ‘ There seems to be no doubt but that, if a de-
fendant in an appeal, or even in an indictment of felony, think
it proper to make use of never so many pleas or exceptions of
this kind, requiring all of them the same kind of trial, he may
take advantage of them all, unless they be repugnant to one
another. Also it seems to be the better opinion, that he shall
have the like advantage, where such pleas or exceptions do
not all of them require the same kind of trial, but some of
them are triable by matter of record, and others by the coun-
try. And ifsuch pleas or exceptions be all of them triable
by the country, it seems to have been generally agreed, that
the defendant must at the same time plead also with them all
his matters in bar, if he have any such, and also plead over to
the felony, unless where he hath admitted the fact by the mat-
ter pleaded in bar. But if the plea in abatement be triable
by matter of record, it is holden in some books that the de-
fendant is not bound to plead over to the felony till such plea
in abatement be found against him. But the greater number
of precedents and constant practice of late seem to be other-
wise. However, it seems clear, that whatsoever matters are
pleaded in abatement of an appeal or indictment of felony,
and found against the defendant, yet he may afterwards plead
over to the felony.” This high authority then proceeds to
draw the distinction between civil and criminal cases as fol-
lows: ‘‘ And in these respects such an appeal and indictment
differ from appeals of mayhem,} and all civil actions whatso-
ever, except only assizes of mortdancestor, novel disseisin,
nuisance, and juris utrum ; for it seems to be a settled rule,
that, in appeals of mayhem and all other civil actions, those
above mentioned only excepted, if a plea in abatement, triable
by the country, be found against the defendant, he shall not
be suffered afterwards to plead any new matter, but final
judgment shall be given against him. Also it seems to be
agreed, that, in all other actions, except those above men-

1 See, as to the appeal of Mayhem, Crim. Law IL. § 969, note.
[306] .
CHAP. XXVI.] ORDER OF THE PLEAS.

§ 434
tioned, if a defendant together with a plea in abatement plead
also a plea in bar, or the general issue, he waives the plea in
abatement ; and the plea in bar or general issue only shall
be tried.” 4

§ 434. It is believed that the doctrine thus stated by Haw-
kins is good law at the present day in all our States ; except
those in which some statute, or some judicial decision, or a
long course of practice inconsistent therewith, has established
the contrary. Thus, in Alabama it was held, that a defend-
ant in a criminal case cannot be compelled at the trial to se-
lect and rely upon one of several pleas in abatement submit-
ted by him. And Ormond, J., pronouncing the judgment of
the court, said: “ The act of the legislature, in allowing
more pleas than one to be filed, does not extend to criminal
cases. But the right thus to plead exists at common law.
In Chitty’s Criminal Law, 484, this is denied ; but he cites
no adjudged case in support of his opinion, whilst the con-
trary doctrine is held by Hawkins, a much higher author on
criminal law, supported by high authority. This seems, then,
to be the better law ; and we do not feel warranted in depriv-
ing the prisoner of any defence secured to him by the com-
mon law, and not repealed by statute.”2 It is impossible for
the author to say in how many States this Alabama, or better,
doctrine is held, though it isin at least several of them.? On
the other hand, it has been laid down in Tennessee, that a

to submit more issues than one to the
jury at the same time. But I could
not with propriety make a record of
all such cases and print the result here;

1 2 Hawk. P. C. c. 23, § 128.

2 The State v. Greenwood, 5 Port.
474, 483. And see The State v. Allen,
1 Ala. 442. 8. ep. Buzzard v. The State,

20 Ark. 106 ; Commonwealth v. Long,
2 Va. Cas. 318.

3 See the last note. Ihave had oc-
casion, of course, to examine all the
American cases, in the preparation of
this work and the work on the Criminal
Law; and I can state of my general
recollection of them, that it is very,com-
mon in this country for the prisdner to
introduce several distinct pleas together,
‘mingling even dilatory pleas with pleas
in bar or to the general issue, and even

because, where no point concerning the
procedure has been made to the court,
and no decision has been pronounced,
the case is no authority to establish any-
thing in the law, and the practice may
have been a mere loose one, tolerated
while it was not justified ; and because,
in most instances of this sort, I could
not know whether there may not have
been a statute of the State, modifying
the common-law practice. See Com-
monwealth. v, Merrill, 8 Allen, 545.
[307]
§ 436 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK I.

defendant cannot plead double in a criminal case; conse-
quently, where a former conviction and not guilty are pleaded
together, the rule in this State seems to be to treat the latter
plea as a mere nullity.

§ 485.. Where several matters of defence are thus pleaded
together, the pleas, it should be remembered, must be sepa-
rate and distinct ; for duplicity in a plea is not allowable?
any more than in an indictment. Such seems.to be the rea-
son of the case, sustained by some authority ;.on the other
hand, Starkie says, that, “‘in general, the pleading not guilty
is no waiver of a special plea, and does not render it double ”’;?
and there are many passages in the older books which seem
to maintain, indirectly, as this does, that special pleas and
pleas in abatement are not objectionable for duplicity, though
the same plea contains the plea also of not guilty. It is, how-
ever, the better practice, if nothing more, to avoid such a
departure from general rule.

§ 486. And if two or more pleas involving issues to the
jury are tendered together, they are not all necessarily to be
tried at once. Thus in a very late Massachusetts case it was
held, that, if a defendant pleads both a previous conviction
and not guilty, he cannot be put to trial, against his objec-
tion, on the latter, until the former is decided adversely to
him. And if he is compelled to go to trial on both issues at
the same time ; and, the former plea not being sustained by
the evidence, is convicted on the latter issue, he is entitled to
a new trial by reason of the irregularity. So, if there are
both a plea in abatement and the general issue, “ they are al-
ways,” it was observed in England, “ tried upon separate

1 Hill v. The State, 2 Yerg. 248 ;
The State v. Copeland, 2 Swan, Tenn.
626. See post, § 575 - 577.

2 Findley v. People, 1 Mich. 234.

8 1 Stark. Crim. Pl. 2d ed. 339, re-
ferring to 22 E. 4.29; 2 Hale P. C.
256.

* Commonwealth v. Merrill, 8 Allen,
545. Metcalf, J. observed: “The two
issues of former conviction or former
acquittal, and not guilty, are distinct ;

[808]

and both cannot rightly be submitted
to a jury at the same time. ‘ Charging
them with both issues at once,’ said the
English judges, ‘would lead to this ab-
surdity, that they would be obliged to
find upon both; and yet, if the first
finding was for the prisoner, they could
not go to the second, because that find-
ing would be a bar.’ Rex v. Roche, 1
Leach, 4th ed. 184, 135.” p. 546, 547.
See post, § 575-577.
CHAP. XXVI.] ORDER OF THE PLEAS.

§ 438

charges to the jury.” ! Yet it is believed that more issues
than one may, under some circumstances, be very properly
submitted to the jury at the same time.?

§ 487. The doctrine seems, therefore, to be, that a defend-
ant may plead any number of pleas at one time, whether in
bar or in abatement, provided they are not repugnant the one
to the other ; yet, onthe other hand, they are not necessarily
to be all submitted to the jury together. Yet this doctrine is
not followed to its full extent in all the States ;. there being,
in some of the States, such exceptions and limitations to it as
are mentioned in various places in this chapter.

§ 488. The result is not, however, as it might seem, to
render unimportant all consideration of the order of the
pleading in criminal cases. For example, if there is a plea
of a former conviction introduced in connection with the plea
of not guilty, the former is to be tried before the latter.’ It
is perhaps also the better opinion, that, in those cases in
which, according to the established course of practice, a par-
ticular issue will be tried before a particular other issue, and
both will not be submitted to the jury together, the defend-
ant need not, unless he chooses, plead the latter matter until
he has pleaded the former and a decision has been reached
adversely to him. Thus, in a Massachusetts case, where the
defendant had introduced the two pleas of a previous convic-
tion and not guilty together, it was observed by the learned
judge that this course was unusual and unnecessary. On
the other hand, Lord Hale speaks of the introduction of the
two pleas together as the “regular” course, while he deems

1 Rex v. Roche, supra.

2 See ante, § 434, note. In Com-
monwealth v. Merrill, supra, Metcalf,
J. observed : ‘It is said, however, that
evidence of such [former] conviction,
has, of late years, been received on the
trial ot the general issue, upon the de-
fendant’s motion, and by consent of the
commonwealth’s counsel ; and we find
that this seems to have been so in Com-
monwealth v. Loud, 3 Met. 328, and
Commonwealth v. Bubser, 14 Gray, 83.
We presume that this practice was re-

sorted to for the purpose of saving the
labor of counsel in preparing the prop-
er pleadings. And if this course was
permitted by the court, the parties who
agreed to it were bound by the result.
As the statute of 1864, c. 250, author-
izes a plea that requires no labor, we
trust that this practice will be discon-
tinued.” p. 547.

3 Ante, § 434, 436. And see post, §
578.

* Commonwealth 2. Merrill, 8 Allen,

545, 446,
[309]
§ 489 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK II.

the other admissible. ‘Regularly,’ he says, “‘ where a man
pleads any plea to an indictment or appeal of felony, that
doth not confess the felony, he shall yet plead over to the
felony, in favorem vite; and that pleading over to the felony
is neither a waiving of his special plea, nor makes his plea
insufficient for doubleness. And therefore, if he pleads any
matter of fact to the writ or indictment, or. pleads autrefois
convict, or autrefois acquit, he shall plead over to the felony.”
Yet, going on to say what shall be done if he omits this, the
learned author adds: “ and although he doth it not upon his
plea, but his plea be found. or tried against him, yet he shall
not be thereby convict without pleading to the felony and
trial, thereupon.’’!

§ 489. What is said in the last section relates particularly
to felony ; in misdemeanor, the rule is not in all respects the
same. If, in misdemeanor, a defendant pleads a matter in
abatement, and this plea is demurred to, raising thus a ques-
tion of law, or if in any other way the issue becomes one of
law and not of fact, and the court decides against the defend-
ant, he shall then indeed be permitted to plead over to the
indictment, the same as in felony.2 And the like course is
pursued where his plea is a special one in bar.2 But, in mis-
demeanor, differing herein from felony, if the special matter
pleaded in advance of the plea of not guilty raises a question
of fact for the jury, the defendant cannot plead over on the
issue being found against him ; but the verdict operates as a,
conviction of the offence, and the court or the jury, as by the
law of the State the matter may devolve on the one or the
other, is to proceed to fix the punishment.t In such a case,
as we have seen,° if the indictment had been for felony, the
judgment, instead of being final, would have been to answer
over to the felony. The distinction between felony and mis-
demeanor, in this respect, rests on the old reason which is
expressed by the words in favorem vite; and, though the

1 2 Hale P. C. 255, 256. Guess v. The State, 1 Eng. 147; 1

* Buzzard v The State, 20 Ark. 106. Chit. Crim. Law, 451. :

8 Barge v. Commonwealth, 3 Pa. 262. 5 Ante, § 438.

* The State v. Allen, 1 Ala. 442; 6 1. Chit. Crim, Law, 451. “
[310]
CHAP. XXVI.].. ORDER OF THE PLEAS. §.441

reason has passed away as to most felonies, the rule remains.
The “ distinction between the result of a verdict against the
defendant on his plea in abatement, and a judgment against
him on a demurrer thereon,” acknowledged only in cases of
misdemeanor, “is founded on this principle, that, whenever
aman pleads a fact which he knows to be false, and a verdict
be against him, the judgment ought to be final; for every
man must be presumed to know whether his plea be true or
false in matter of fact: but, upon demurrer to a plea in
abatement, there shall be a respondeas ouster ; because every
man shall not be presumed to know the matter of law, which
he leaves to the judgment of the court.”’!

§ 440. It is too late to introduce a plea in abatement after.
the defendant has pleaded in bar,? — unless, indeed, he ob-
tains leave of the court to withdraw the one plea and substi+
tute the other.®

§ 441. The result of our inquiries in this chapter is, that
attention should be paid to the order in which the several
pleas are introduced ; but that, beyond some simple and ob-
vious propositions, it is hitherto impossible to lay down exact
rules regulating the order, such as the old books give us con-
cerning the order of pleading in civil causes.

11 Chit. Crim. Law, 451; Gibson,
C. J. in Barge v. Commonwealth, 3 Pa.
262,264. It seems to be the doctrine
in Alabama, that, if there are several

ing the jury find against him on the is-
sues of fact. The State v. Allen, 1
Ala, 442,

2 1 Chit. Crim. Law, 447; The State

pleas in abatement and on some of them
jssues of law are made up, and on others
issues of fact, and the pleas involving
the issues of law are overruled by the
court, the defendant may then plead
over to the misdemeanor, notwithstand-

v. Farr, 12 Rich. 24; Commonwealth v.
Butler, 1 Allen, 4 ; The State v. Mon-
tague, 2 McCord, 257.

8 Ante, § 426, 427;
chase, Car. & M. 617.

[311]

Reg. v. Pur-
§ 444 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

CHAPTER XXVIII.

SOME OF THE PLEAS SEPARATELY CONSIDERED.

Sect. 442. Introduction.
443-455. The Motion to Quash the Indictment.
456-462. Demurrer.
463. Plea of Misnomer.
464-468. Pleas of Guilty and Not Guilty.
469-472. Plea of Nolo Contendere.

§ 442. IN the foregoing chapters, the general doctrines re-
specting the pleas are sufficiently unfolded ; but it remains
for us to look at some of the leading pleas a little more in
detail. We shall begin with what, perhaps, can hardly be
regarded as a plea; namely, —

The Motion to Quash the Indictment.

§ 443. Whenever, for any reason which seems good to the
court, an indictment cannot be proceeded with advantageous-
ly to public justice, or without doing a wrong to the defend-
ant, the presiding judge may, in his discretion, quash it; or,
in other words, cause it to abate. This is done by directing
the clerk of the court to make an entry to this effect upon the
record. The more minute form of this doctrine, and its lim-
its, will now be considered.

§ 444. The court may exercise the power of quashing an
indictment of its own motion ; or any third person as amicus
curi@ may move to quash it;1 or, perhaps, to speak more
exactly, may suggest to the judge, with his permission, the
matter on which he will ex officio proceed ; or the court may
simply refuse to try an indictment on which, plainly, no good
judgment could be rendered.?

1 Rex v. Vaux, Comb. 13. 147; Rex v. Deacon, Ryan & Moody
2 Rex v. Tremearne, 5 D.& R. 413, N.P. 27.
5 B.& C. 761, Ryan & Moody N. P.

[312]
CHAP. XXVIL] SOME PLEAS SEPARATELY CONSIDERED. § 445

§ 445. But usually, in practice, the court quashes the in-
dictment only on motion of counsel representing one or the
other of the parties to it. With us, the prosecuting officer
having the power to enter at discretion a nol. pros.,' he sel-
dom or never applies to have it quashed. Yet the practi-
tioner may find it convenient to have presented before him
what Chitty says on this branch of the subject :2 “ When the
application is made by the prosecutor, the court will not
quash the indictment as a matter of course, unless it appear
to be clearly insufficient ;? nor even then after the defendant
has pleaded, unless another good indictment has been found
against him ;* nor where he has been put to extra expense,
unless the costs are first paid him. But where the indict-
ment is insufficient, and the defendant is not put to incon-
venience, the court will quash it upon the motion of the pros-
ecutor without the consent of the defendant, though it is for
a crime in which they never show the same indulgence upon
the application of a prisoner.® And if an indictment removed
by certiorari is at issue, and the prosecutor procures another
indictment to be found, alleging the first to be defective, the
court will, by consent of all parties, order the first to be
quashed and the second to be substituted in its place, and to
stand in the same condition.’ But otherwise in case of re-
moval by certiorari, the court will not quash the indictment
after the forfeiture of the recognizance, by neglecting to carry
down the record for trial. When an information is filed by
the Attorney-General ex officio, the court will quash it upon
motion, if they see cause ; but, if it be exhibited by a private
individual, they will not thus dispose of it, because the de-
fendant is entitled to costs.”’ ®

1 Crim. Law, I. § 850, 856, 858, 862. 7 3 Bur. 1468; 1 W. Bl. 460; Com.
21 Chit. Crim. Law, 299, 300. Dig. Indictment, H.; Bac. Ab. Indict-
2 Doug. 240 ; Com. Dig. Indictment, ment, K.
: 8 1 Salk. 380; Com. Dig. Indict-
49 East, 226; 1 Leach, 11; 6 Mod. ment, H.
262. 91 Sid. 152; Com. Dig. Informa-
6 3 Bur. 1469; 2 Stra. 946; Com. tion, D.; 4 Vin. Ab. Information, E. ;
Dig. Indictment, H.; Bac. Ab. Indict- Doug. 240, 241; 2 Hawk. P. C. «. 25,
ment, K. 4149.
6 2 Sess. Cas. 19; 2 East, 226, 227. .

VOL. I. 27 [313]

H
§ 447 [BOOK II.

PLEADINGS SUBSEQUENT TO INDICTMENT.

§ 446. Treating, therefore, the motion to quash as one of
the pleas, or proceedings in defence, made by the prisoner,
we have the following views. It isa motion addressed to the
judicial discretion of the court, which means a discretion reg-
ulated by judicial rule ;1 and the decision of the presiding
judge thereon is not ordinarily open for revisal by a higher
court.2. On the last point, however, it was held in New York,
that, when a court of oyer and terminer has quashed an in-
dictment, it may, even at a subsequent term, give leave to
‘the public prosecutor to make up a record as if judgment had
been rendered for the defendant on demurrer, for the pur- '
pose of enabling him to sue outa writ of error. And, if such
leave is refused, the Supreme Court will award a mandamus.
Thus the superior court could in effect revise the decision of
the inferior in respect of this matter of quashing the indict-
ment, though a writ of error would not lie directly. And
Sutherland, J. said: “The power and jurisdiction of the
court over the cause are not determined either by an order
arresting the judgment or quashing the indictment. It is
competent for a court, upon proper cause shown and upon
proper terms, with a view of promoting the substantial pur-
poses of justice, to vacate or set aside its most formal rules
and orders.”® In some of our States, it is believed, a decision
upon this subject of quashing may be taken from a lower toa
higher court for revisal by the usual direct processes ; and,
in one way or another, this result may be reached in many of
the States.*

§ 447. A motion to quash the indictment ought to be made

1 1 Chit. Crim. Law, 299; The State

The State v. Conrad, 21 Misso. 271;
v. Nail, 19 Ark. 563; Ex parte Bush-

The State v. Putnam, 38 Maine, 296 ;

nell, 8 Ohio State, 599; The State wv.
Dayton, 3 Zab. 49; Strawhern v. The
State, 37 Missis. 422; The State o.
Wishon, 15 Misso. 503 ; Click v. The
State, 3 Texas, 282; United States v.
Stowell, 2 Curt. C. C. 153; Common-
wealth v. Eastman, 1 Cush. 189; The
State v. Barnes, 29 Maine, 561; The
State v. Stuart, 23 Maine, 111.

2 The State v. Jones, 5 Ala. 666;

[814]

Commonwealth v. Eastman, 1 Cush.
189 ; ante, § 203 and note, 206.

8 People v. Stone, 9 Wend. 182, 192.

* See The State v. Fortune, 10 Misso.
466 ; The State v. Rector, 11 Misso. 28;
The State v. Batchelor, 15 Misso. 207;
The State v. Wall, 15 Misso. 208; The
State v. Barnes, 29 Maine, 561; The
State v. Staker, 3 Ind. 570; Common-
wealth v. Church, 1 Barr, 105.
CHAP. XXVIL] SOME PLEAS SEPARATELY CONSIDERED.

§ 447

at an early stage of the cause. There are cases and dicta
which seem to go fully to the point that this motion cannot
be made after issue joined on the plea of not guilty, or per-
haps after the plea itself is entered! Plainly, after verdict,
this motion is not admissible ;? for then the motion should
be in arrest of judgment. And it is not a motion which will
ordinarily be entertained while the cause is on trial.2 Yet
in New Jersey it has been laid down, that, to make way for a
motion to quash, the court will always permit the plea of not
guilty to be withdrawn.* The true view appears to be, that
there is no need for this plea to be withdrawn ; it being in
the discretion of the court to hear the motion while the plea
remains on the record. Thus, in a Massachusetts case, after
the defendant had pleaded not guilty, and when the cause
was about to be tried, but before the jury were impanelled,
the court refused to allow him to withdraw his plea of not
guilty for the purpose of demurring to the indictment, yet.
consented to hear the objection on a motion to quash, which
seems to have been done without any withdrawal of the plea.®
And various other cases confirm the general proposition, that
the existence on the record of the defendant’s plea of not
guilty is no absolute bar to the introduction of the motion to
quash the indictment. The doctrine, to be drawn from the
cases and from the reason of the law combined, appears to be:
the motion to quash, not being one of right, but of privilege

1 1 Stark. Crim. Pl. 2d ed. 299 ; The
State v. Burlingham, 15 Maine, 104 ;
Nicholls v. The State, 2 Southard, 539.
; 2 The State». Barnes, 29 Maine, 561 ;
See The State v. Stuart, 23 Maine, 111;
Thomasson v. The State, 22 Ga. 499.

3 Rookwood’s case, 13 Howell St.
Tr. 139,161 et seq.; Cranburne’s case,
13 Howell St. Tr. 221, 223 et seq. See
Rex v. Abraham, 1 Moody & R. 7.

* Nichols v. The State, supra.

5 Commonwealth v. Chapman, 11
Cush. 422.

6 Ante, § 445; Rex v. Moor, W. Kel.
103; Rex v. Wynn, 2 East, 226. In
Rex v. Frith, 1 Leach, 4th ed. 10, 11,
“the court said, it was by no means

proper to encourage the quashing of in-
dictments after prisoners have plead-
ed”; and, in the particular case, re-
fused to do so. But it is added in a
note, that “the court may in its discre-
tion quash an indictment at any time,
before the jury are charged with the trial
of the prisoner.’ In Reg. v. Heane, 9
Cox C. C. 4338, 486, 10 Jur. n. s. 724,
Cockburn, C. J. said: “As regards
the objection, that the motion to quash
cannot be made after plea pleaded, I
think if it is made to appear clearly
that there was no jurisdiction, we have
power to quash the indictment at any
stage.”

[815]
§ 449 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

granted by the court to the defendant, will not be received
when presented at any unreasonable time ; yet what is a rea-
sonable time will depend upon the nature of the objection to
be reached by the motion, the diligence used by the defendant
in bringing it forward, and many other things not possible to
be stated in a general proposition.

§ 448. It has sometimes been laid down, and it is the doc-
trine which seems to prevail in some of our States, that the
motion to quash can be founded only on some defect apparent
on the face of the indictment.? Indeed this is perhaps every-
where a sort of general rule ;° but the better doctrine is, that
the court in its discretion will look into what is brought to
its attention outside the indictment, and even outside the rec-
ord of the cause. Thus, the prosecuting attorney may admit
the existence of a fact,5 or the fact may be made to appear on
affidavit,® and in either case the extrinsic matter will be con-
sidered in connection with the indictment as constituting the
basis for a motion to quash.

§ 449. Where an indictment contained a large number of
counts, — laying, indeed, an assault in twenty-one different
ways, —a motion to strike out some of the counts, as being
unnecessary, and vexatious to the defendant, was overruled ;
Lord Hardwicke, C. J. observing: ‘“ How can we strike out
anything that the grand jury have found? .... The officer
that attends the grand jury should not let such indictments
come before them.”? This case has sometimes been some-
what singularly interpreted as establishing, that a court can-
not quash a defective count in an indictment, and leave a
good count to stand, but the whole must be quashed or none.®
Plainly the case maintains no such doctrine; and, for the
same reason that a grand jury may find some counts in a bill

1 And see Ante, § 443, 444, and the 207; The State v. Wall, 15 Misso.
cases there cited. 208.

2 The State v. Rickey, 4 Halst. 293; 5 The State v. Cain, 1 Hawks, 352.
Wickwire v. The State, 19 Conn. 477 ; 6 Reg. v. Heane, 9 Cox, C. C. 433,
Commonwealth ». Church, 1 Barr, 105; 436, 10 Jur. w. s. 724. See Reg. v.

ante, § 206. Stockley, 2 Gale & D. 728, 3 Q. B. 238.
8 Reg. v. Burnby, 13 Law J. n. 8, 7 Rex v. Pewterus, Cas. temp. Hardw.
M. C. 29. 203, 2 Stra. 1026.

4 The State v. Batchelor, 15 Misso. 8 1 Chit. Crim. Law, 303.
[816]
CHAP. XXVII.] SOME PLEAS SEPARATELY CONSIDERED. § 451

presented to them and ignore others,! the court — looking at
the question as one of legal principle — may quash bad counts
and leave good ones. In some, perhaps most, of our States,
this is done ;? but, in other of the States, it is perhaps re-
fused, the courts following what is assumed to be the English
rule.2 If, however, only a part of the counts are bad, and
the prisoner wishes to have them quashed, his motion should
properly be limited to them, instead of being a motion to
quash the whole indictment. And even then the court may
not interfere where it would if all the counts were ill; be-
cause the good counts will support a general verdict, and the
reason for the interference may not, therefore, exist.

§ 450. Where the caption ® is made up in the English way,
and perhaps generally where it is not, a defect in it may be
reached by the motion to quash, the same as a defect in the
body of the indictment itself.”

§ 451. These general views exhaust, or nearly so, the sub-
ject of quashing the indictment. Yet the books contain mul-
titudes of cases in which, under the particular circumstances,
the judges have interfered, on the one hand, or have refused
to interfere, on the other, under the motion to quash. It is
doubtful whether more good or harm is done by arraying
these cases in a law book ; on the one hand, they may afford
helps to practitioners and to judges by way of suggestion ; on
the other hand, they may practically convey the false impres-
sion, that what has been done or refused at one time by one
judge, will or should be done or refused at another time by
another judge. Now, the circumstances of cases differ ; the
practice of tribunals differs ; it may sometimes be the most
convenient course to pass upon the whole question of an al-

1 Ante, § 142.

2 Jones v. The State, 6 Humph. 435 ;
The State v. Woodward, 21 Misso. 265 ;
The State v. Wishon, 15 Misso. 503 ;
King v. The State, 10 Texas, 281 ;
Scott v. Commonwealth, 14 Grat. 687.

3 As not very distinctly sustaining
this part of the text, see Dukes v. The
State, 11 Ind. 557. See also Kane v.
People, 3 Wend. 363; The State v.

27 *

Rector, 11 Misso. 28 ; The State v. Bu-
chanan, 1 Ire. 59; The State v. Smith,
8 Blackf. 489.

£ The State v. Wishon, supra.

5 Commonwealth v. Hawkins, 3 Gray,
463.

6 Ante, § 145 et seq.

7 1 Chit. Crim. Law, 299; The State
v Hickman, 3 Halst. 299 ; ; Respublicav
Cleaver, 4 Yeates, 69.

[817]
§ 452 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK IIL.

leged defect under a motion to quash; sometimes conven-
ience is promoted by giving to the motion no heed. Consid-
erations of practical justice also may sometimes point in one
direction, sometimes in another.

§ 452. It will probably, however, best satisfy the reader
to add here what Chitty says on the subject, with his notes,
and with references to some later English cases, and to the
American. After observing, that, when the motion is made
on behalf of the defendant, the rules by which the court is
guided are more strict, and the objections more numerous,
than when it proceeds from the prosecutor, ‘* because, if the
indictment be quashed, the recognizances will become inef-
fectual,” he proceeds :! “‘ The courts usually refuse to quash
on the application of the defendant when the indictment is
for a serious offence, unless upon the clearest and plainest
ground, but will drive the party to a demurrer, or motion in
arrest of judgment, or writ of error.? It is, therefore, a gen-
eral rule, that-no indictments which charge the higher offen-
ces, as treason or felony ;? or those crimes which immediate-
ly affect the public at large, as perjury,* forgery, extortion,
conspiracies, subornation, keeping disorderly houses, or offen-
ces affecting the highways, not executing legal process; will
be thus summarily set aside. So the court refused to quash
an indictment against a number of persons for breaking and
entering a lead mine, though it was defective; because there
were large numbers of persons met together, and the judges
were trying others in the same county for similar offences.®
Upon the same ground, the court will refuse to quash an in-
dictment for a nuisance, without a certificate that it is re-
moved ;7 and the court have refused to quash an indict-

1 1 Chit. Crim. Law, 300 -303. 2 Stra. 1210; Com. Dig. Indictment,

2 Cald. 432,554 ; Nolan P. L. 261;
Bell v. Commonwealth, 8 Grat. 600.

81 Salk. 372; Com. Dig. Indict-
ment, H. But see4 Harg. St. Tr. 697,
698.

4 Commonwealth v. Litton, 6 Grat.
691.

5 1 Salk. 372; 5 Mod. 13; 2 Sess.
Cas. 1, 2, 4, 8; 1 Sess. Cas. 337 - 339 ;

[318]

H; Bac. Ab. Indictment, K; 2 Hawk.
P.C.c. 25, § 146 ; Burn Just. Perjury,
JIL. ; Williams Just. Perjury, IL; 5
Mod. 18, as to extortion.

8 1 Wils. 325 ; Com. Dig. Indict-
ment, H; Bac. Ab. Indictment, K.

7 21d. Raym. 1164; Andr. 139, 220;
4 Bur. 2116; 1 Salk. 372; 1 Vent. 370;
Cro. Car. 584; 1 Barnard. K. B. 45;
CHAP. XXVIL.] SOME PLEAS SEPARATELY CONSIDERED. § 453

ment against a parish for not repairing a highway, on an
affidavit that the way was in repair, but the defendants were
directed to plead guilty, and pay a nominal fine ;! and the
court will refuse to quash an indictment against overseers for
not paying money over to their successors, for that is a grow-
ing evil, and affecting the interests of the community2 Nei-
ther will the court, as it has been held in general, quash in-
dictments for forcible or fraudulent injuries, as for a forcible
entry,? for a disturbance in church ;¢ or against a bankrupt
for his embezzling his effects,> or for enticing away a servant ;®
for, though some of these are private in their name, they are
public in their consequences.’ And in an indictment for
using false weights and measures, the court will not thus in-
terfere, even where it appears the scale for goods is the light-
est, and though it is not stated where the supposed offence
was committed. And as informations are-rarely allowed,
except for offences endangering the public welfare, it is said
that the court will never quash them at the instance of the
defendant. And it is no ground to quash an indictment
that there be another pénding against defendant for the same
offence, unless indeed there be some vexation which the court
will judge of and determine ; and, in a case where there was
a joint indictment against two for perjury, which on the trial
the court inclined to think bad, and the trial was postponed,
pending which a separate indictment against one of the par-
ties was preferred, the court refused to quash the latter in-
dictment, no vexation appearing.”

§ 453. ‘There are some cases, however, in which the court
will thus interfere on the behalf of the defendant upon a
proper application, made upon affidavit of the objection, and

Com. Dig Indictment, H ; Bac. Ab. In- 61 Salk. 372; Com. Dig. Indict-

dictment, K. ment, H.
1 2 Chit. 216. 76 Mod. 42; 3 Bur. 1841; Com.
22 Stra. 1268; Com. Dig. Indict- Dig. Indictment, H.
ment, H ; Bac. Ab. Indictment, K. 83 Bur. 1841; Com. Dig. Indict-
36 Mod. 96; Com. Dig Indict- ment, H ; Bac. Ab. Indictment, K.
ment, H. 9 1 Vin. Ab. Information, E.
# Cro. Car. 584; 1 Sid. 54; Com. 1 Per Abbott, J. Nov. 1816, Adolphus
Dig. Indictment, H. moved to quash the Indictment ; The

5 1 Leach, 10; 3 J. B. Moore, 656. State v. Whitmore, 5 Pike, 247.

[319]
§ 454 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK IIL.

pointing it out so that it may be cured in another indict-
ment.!' Thus, where the court, in which the indictment was
found, have no jurisdiction, it will be quashed ;? as, if an
indictment for perjury at common law be presented at the
quarter sessions, which they have no power to determine.®
And it seems the court will quash an indictment for perjury
for want of an addition to defendant’s name, if the objection
be properly taken by affidavit. And if from the facts stated
it appear that no indictable offence has been committed, the
indictment will be thus set aside in the first instance. So
an indictment for exercising a trade, contrary to the custom
of the city, will be quashed, as it manifestly cannot be sup-
ported. And an indictment when not for any of the public
offences we have already mentioned, may also be quashed for
the omission of a material averment; as, where an indictment
for not receiving a parish apprentice did not aver the bind-
ing to be within the 48 Eliz. c. 2;7 or, before the repeal of
the statute, the proceeding for maintaining a cottage without
four acres of land, neglected to state that it was inhabited ; 8
or, where the defendant was charged with speaking words of
a magistrate, not in themselves actionable, and they were not
stated to be said of him in the execution of his office?

§ 454. “ And the same rule applies to evident misjoinder,!

43D.& R. 621. And see The State
v. McGregor, 41 N. H. 407. So also if
the offence appears to be barred by the
statute of limitations. The State v. Rob-
inson, 9 Fost. N. H. 274,

5 Doug. 253; Commonwealth ».
Clark, 6 Grat. 675.

8 Comb. 243.

72 Stra. 1268; Com. Dig. Indict-
ment, H ; Bac. Ab. Indictment, K. ,

8 Andr. 2830; Com. Dig. Indictment,

1 Probably the form in which the ap-
plication is to be made, must be reg-
ulated in each case by a consideration
of the nature of the particular case,
and the kind of defect which is to be
reached. The rule mentioned in the
text may very well be applied where the
motion to quash stands in the place of a
plea in abatement. And see The State v.
Maurer, 7 Iowa, 406. Ina New Jersey
case it is laid down, that, on a motion to

quash, itis not necessary to file reasons.
The State v. Kirby, 2 Southard, 835.

2 Reg. v. Heane, 9 Cox C. C. 433, 10
Jur. N. s. 724; Bell v. Commonwealth,
8 Grat. 600.

8 1 Bur. 389 ; 2 Stra. 1088 ; 2 Hawk.
P. C. c. 25, § 146, n. 25; Com. Dig.
Indictment, H.

[320]

H.
® Andr. 226; Com. Dig. Indictment,
H; Bac. Ab. Indictment, K.

1 Lewellen v. The State, 18 Texas,
538 ; The State v. Nail, 19 Ark. 563.
Seo also, ante, § 197-204; Strawhern
v. The State, 87 Missis, 422.
CHAP. XXVII.]

SOME PLEAS SEPARATELY CONSIDERED. § 455.

and gross deficiency in the formal requisites. Thus where
siX persons were jointly and severally charged with exercis-
ing a trade without having served an EppraTuce sts the in-
dictment was quashed as altogether vicious.!_ So where the
indictment alleged ‘it was presented,’ without adding, ‘by the
oath of twelve men’ ;? where, in a caption, it was said, ‘that
the several indictments to this schedule annexed are true
bills,’ whereas they are only bills till they are found ;® and
where the charge is expressed merely by way of recital,‘ the
proceedings may be thus disposed of. But the court will not
quash an indictment on a statute, merely because it does not
conclude ‘ against the form,’ &c., but leave the defendant to
demur.> And the defect, in general, must be very gross and
apparent to induce the court to dismiss the indictment in this
summary way, instead of leaving the party to the more usual

remedies of demurring or moving in arrest of judgment.” ¢
§ 455. If the court refuses to quash an indictment, such

1 1 Stra. 623 ; Com. Dig. Indictment,
H.

2 Andr. 230.

81 Salk. 376.

#1 Sess. Cas. 3.

5 2 Stra. 702 ; Bac. Ab. Indictment, K.
An indictment not concluding *“ against
the peace and dignity of the United
States,” may be quashed. United States
v. Crittenden, Hemp. 61 ; United States
v. Lemmons, Hemp. 62.

6 1 W. BI. 275 ; Doug. 240, 241; 2
Hawk. P.C. c. 25, § 146, in notis ; Cro.
Car. 147; Fost. 104. The indictment
should not be quashed in a doubtful
case. Commonwealth o. Eastman, 1
Cush. 189; Respublica v. Cleaver, 4
Yeates, 69; The State v. Smith, 1
Murph. 213; People v. Eckford, 7 Cow.
535. But it should be, whenever it is
manifest that no judgment can be ren-
dered on it. The State v. Beard, 1
Dutcher, 384 ; The State v. Robinson,
9 Fost. N. H. 274. Quashing an in-
dictment as to one of several defend-
ants, abates it also as to the rest. Peo-
ple v. Eckford, supra. It is no ground

for quashing an indictment or discharg-
ing the prisoner from arrest, that, after
the issuing of the warrant, and before
indictment found, by an agreement
between the officer and some person
in Canada the prisoner was forcibly
brought from Canada to the line of the
State, and there delivered to the officer
to be arrested. People v. Rowe, 4 Par-
ker C. C. 253. If a party is indicted
in the circuit court for one county, and
it appears at the trial that the crime was
committed in another county, the indict-
ment may be quashed for the purpose
of having him indicted and tried in such
other county, and the accused be recog-
nized accordingly. Parrish v. The State,
14 Md. 238. Where one count in a bill
of indictment charges the offence to have
been committed in one county, and an-
other count charges it in another, the
general rule is, that the counts are re-
pugnant, and the indictment will be
quashed on motion, or the prosecutor
be compelled to elect on which he will
proceed. The State v. Johnson, 5 Jones,
N. C. 221.

[821]
§ 457 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK IIL

refusal is not to be regarded as a final decision of the ques-
tion raised, but it may be brought up in any proper legal form
afterward.!

Demurrer.

§ 456. In the law of pleading, “‘demurrers are of two
kinds, general and special ; the latter being called special be-
cause they assign some special cause of demurrer, while the
former assign none. But at common law the distinction be-
tween the one and the other consisted in the mere form of
demurring, since the office and effect of both were the same ;
faults in mere form being reached, at common law, as well by
a’general as by a special demurrer.” 2 An exception to this
doctrine, however, is, that at common law duplicity can be
reached only by special demurrer.® This is the law as re-
spects civil causes; and, as respects criminal, it seems to be
substantially the same. ‘‘ Upon a demurrer to an indictment,
the court must look to the whole record to see whether they
are warranted in giving judgment on it” ; objections, there-
fore, to the jurisdiction of the court, to the substance, and to
the structure of the indictment, are alike reached in this way.!
And though the objection is one relating to the mere form of
the indictment, it may usually be taken on a general demur-
rer, to the same effect as upon a special.®

§ 457. Though it is competent, as we have seen,® for the
court to quash an indictment after the defendant’s plea has
been given in, and without any withdrawal of the plea, the
same rule appears not to apply to the reception of a demur-
rer. The law on this subject is not very distinctly stated in
the books ; but it probably is, that, unless some rule of court
as to the time of demurring prevents the reception of the
demurrer, it may be presented whenever there is not a plea
pending, yet not when there is. The court, however, will often

1 Ex parte Bushnell, 8 Ohio State, 5 Lazier v. Commonwealth, 10 Grat.

599. 708; Commonwealth v. Jackson, 2 Va.
2 Gould Pl.c. 9, § 8. Cas, 501.
* Tb. 3d ed. note; ante, § 196. 6 Ante, § 447.

* Rex v. Fearnley, 1 T. R. 316, 320.
[322]
CHAP. XXVII.] SOME PLEAS SEPARATELY CONSIDERED. § 459

permit, on application to its discretion, a defendant to withdraw
his plea and demur, when he cannot demur as of right.!_ This
is a discretion the exercise of which cannot, according to the
English doctrine, be revised by a higher tribunal.?

§ 458. It is familiar doctrine prevailing in the civil depart-
ment of our common law, that a demurrer admits the truth
of the pleading demurred to; therefore, if a defendant puts
in a general demurrer to a declaration, he cannot, on the de-
murrer being overruled, be permitted to answer over. The
same doctrine, with the exceptions and limitations about to
be stated, applies to an indictment. Lord Hale lays it down
in very broad terms, that, “if a person be indicted or ap-
pealed of felony, and he will demur to the appeal or indigt-
ment, and it be judged against him, he shall have judgment
to be hanged ; for it is a confession of the indictment, and
indeed a wilful confession, for he may have all the advanta-
ges of exception to the insufficiency of the indictment or ap-
peal by way of exception either before his plea of not guilty,
or after his conviction and before judgment, as he might have
by demurrer.” ® And in a case comparatively recent, the
English judges held, that, where there was a general demur-
rer to an indictment for a transportable felony, and it was
overruled, final judgment must pass; “inasmuch as, by a
general demurrer, the prisoner confesses all the material facts
charged against him in the indictment, though, in the case of
a demurrer of a special nature, which is usually called a de-
murrer in abatement, it might be otherwise. And they inti-
mated, that the various dicta which appeared in the books in
opposition to the above ruling were probably to be accounted
for by the above distinction not having been sufficiently at-
tended to.’’4

§ 459. It has been laid down also in England, that, in mis-
demeanor, if a defendant demurs to an indictment, even in

1 Ante, § 447; Reg. ». Purchase, Car. 8 2 Hale P. C. 257.
& M. 617; Reg. v. Faderman, 1 Den. * Reg. v. Faderman, 1 Den. C. C.
C.C. 565; Reg. v. Sheals, 3 Crawf.& 468, 570, 3 Car. & K. 353, 4 Cox C. C.
Dix C. C. 330. 359, Temp. & M. 286. See Reg. v.
2 Reg. v. Brown, 17 Law J.n.s.M. Phelps, Car. & M. 180.
C. 145,

[323]
§ 462 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

abatement, and the decision is against him, final judgment
shall pass.1 Hawkins states the matter thus: “It seems,
that, in criminal cases not capital, if the defendant demur to
an indictment, &c., whether in abatement or otherwise, the
court will not give judgment against him to answer over, but
final judgment. For it seems that in such cases there can be
no demurrer properly in abatement, except it be to a plea in
abatement, or to a replication to such a plea.’’?

§ 460. In the United States, the law on this subject is
perhaps not in all respects well settled; but everywhere in
this country, if there is a demurrer to an indictment for a
misdemeanor, and it is overruled, the judgment, unless the de-
murrer is permitted to be withdrawn, is final against the de-
fendant ;* though some courts deem it to be within their dis-
cretion to allow the defendant to plead over in such a case,
or not. In felonies, the judgment is, in some of the States,
and perhaps all, that the defendant answer over.é

§ 461. In Missouri, “the statute directs,” says the court,
“ that, in all cases where the defendant does not confess the
indictment to be true, a plea of not guilty shall be entered ”’ ;
and a confession by demurrer is held not to come within this
statute. Therefore in this State, when an indictment, wheth-
er for felony or misdemeanor, is overruled, the court enters
the plea of not guilty for the defendant, and the trial proceeds
thereon.®

§ 462. There are statutes in various States, restricting to
the mere demurrer, or to it and the motion to quash, the
right to take advantage of a defect in the indictment. By
these statutes, if the objection is not made in this way, it can-
not be made in any other way afterward.’ The effect of these

’ Reg. v. Gibson, 8 East, 107, 111. 6 Thomas v. The State, 6 Misso. 457 ;
2 2 Hawk. P. C. ¢. 31, § 7. Ross v. The State, 9 Misso. 687 ; Mae-
8 The State v. Rutlege, 8 Humph.32; der v. The State, 11 Misso. 363 ; Aus-
People v.Taylor, 3 Deniv, 91; Common- tin v. The State, 11 Misso. 366; Lewis
wealth v. Eastman, 1! Cush. 189, 192; ». The State, 11 Misso. 366.
Commonwealth v. Foggy, 6 Leigh, 638. 7 Cowman v. The State, 12 Md. 250;
* The State v. Wilkins, 17 Vt. 151; Wise v. The State, 24 Ga. 31 ; People
McCuen v. The State, 19 Ark. 630. v, Josephs, 7 Cal. 129; People v. Apple,
5 The State v. Merrill, 37 Maine, 329, 7 Cal. 289.
333.
[324]
CHAP. XXVII.] SOME PLEAS SEPARATELY CONSIDERED. § 464

statutes can hardly be otherwise than to induce the courts,
where they prevail, to allow greater liberty of pleading over,
and the like, than would be granted where the common-law
rules remain unimpaired.

The Plea of Misnomer.

§ 463. This is one of the pleas in abatement. In a pre-
vious chapter,’ we considered the questions connected with
the proper method of naming and describing the defendant ;
so that there is but little left for this place. If it is necessary
that the defendant should be described with an addition,? and
the indictment omits this part, advantage of the omission can
be taken only by a motion to quash or a plea in abatement,?
perhaps only in the latter way ;* and the defect is cured by
a general appearance and plea of not guilty. Where there is
an error, not a mere omission, in the name or addition, ad-
vantage of it can be taken only by plea in abatement.é

The Pleas of Guilty and Not Guilty.

§ 464. If the prisoner wishes to admit that he committed
the offence charged against him, and thus avoid a trial, he
pleads, at his arraignment,® guilty. The effect of this plea
of guilty is merely to bind the defendant to the fact of his
having done what is legally charged against him in the in-
dictment ; but, if the indictment is insufficient, and contains
no valid charge of an offence, the plea of guilty confesses
none.’ But if the indictment is good, setting out in due form
an offence known to the laws, the court, on receiving the
plea of guilty, may proceed thereon to pronounce the sen-
tence.®

1 Ante, § 117 et seq.

2 Ante, § 121, note, 122, 129, 130.

8 The Statev. McGregor, 41 N. H. 407.

“ Probably the true view on this point
is, that, on general principles, advan-
tage may be taken of this error, in those
States in which itis an error, on motion
to quash, as well as by a plea in abate-
ment. But a motion to quash is ad-
dressed to the discretion of the court,
which does not bind the judge like a

VOL. IL 28

rule of law ; and, in the words of Abbott,
J., “it is a long time since the practice
prevailed of quashing an indictment for
this cause on motion.” Rex v. Check-
ets, 6M. &S. 88.

5 The State v. Hughes, 1 Swan, Tenn.
261.

® Ante, § 412.

7 Fletcher v. The State, 7 Eng. 169.

8 In Iowa, there is or was a statute
in the following terms: “In all trials

[325]
§ 468 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK II.

§ 465. It is always in the discretion of the court, and the
discretion is freely exercised in proper cases, to allow the plea
of guilty to be withdrawn, and the plea of not guilty to be en-
tered in its place. Even where the defendant, after pleading
guilty, has moved in arrest of judgment, then, if his motion
is overruled, the court may, should justice require, permit
him, before judgment rendered, to withdraw this plea of
guilty, and plead not guilty.

§ 466. The plea of not guilty is very broad in its effect.
“ By it,” says Starkie, ‘ the defendant denies the whole of the
charge; and he may give his special defence in evidence,
though the matter of fact be proved against him. And upon
the defendant’s giving special matter of excuse or justifica-
tion in evidence, the jury are as much bound to take notice
of it as if it had been specially submitted to their considera-
tion by a special plea.” 2 If, for example, a person indicted
for the unlicensed sale of intoxicating liquor, wishes to admit
the selling, and rely upon a license for his defence, he should
not plead the matter specially in this way ; but this his special
defence is to be made on the general plea of not guilty?

§ 467. Where there are more defendants than one, they
may each put in his several plea of not guilty; but, if they
plead one general plea of this sort, it is in law the several
plea of each.*

§ 468. There cannot be a trial on the merits in a criminal
case, until the defendant has pleaded not guilty,® or this plea
for murder, the jury before whom such record. McCauley v. United States,

trial is held, if they find the prisoner Morris, 486.
guilty thereof, shall ascertain in their 1 The State v. Cotton, 4 Fost. N. H.

verdict whether it be murder or man-
slaughter; and, if such person be con-
victed by confession in open court, the
court shall proceed .by examination
of witnesses in open court to determine
the degree of the crime, and shall pro-
nounce sentence accordingly.” There-
upon it was held, that, on u plea of
guilty to an indictment for murder, it
must be determined by evidence whether
the crime is murder or manslaughter,
and the examination of witnesses and
decision of the judge must appear of

[326]

143.

21 Stark. Crim. Pl. 2d ed. 339, And
see Rex v. Pemberton, 1 W. Bl. 230;
Rex v. Banks, 1 Esp. 144; Bennett 2.
The State, 1 Swan, Tenn. 411; Eggle-
ston v. The State, 6 Blackf. 436; Uter-
burgh v. The State, 8 Blackf. 202.

8 Peters v. The State, 3 Greene, Iowa,
74, See The State v. Howard, 2 Brev.
165.

* The State v. Smith, 2 Ire. 402.

5 Sartorious v. The State, 24 Missis.
602.

a

=
CHAP. XXVIL] SOME PLEAS SEPARATELY CONSIDERED. § 470

has been entered for him. But the plea may, under proper
circumstances, be withdrawn by leave of court, preparatory
to entering the plea of guilty, or to some other proceeding.
Yet in an English nisi prius case it was ruled, that, where an
indictment has been removed and sent down to trial as a
Queen’s Bench record, the defendant cannot withdraw his
plea of not guilty and plead guilty. ‘ The proper course,”
said Alderson, B., “is to take a verdict of guilty by consent.’’?

The Plea of Nolo Contendere.

§ 469. The plea of nolo contendere, as it is usually called,
is not common; but it is sometimes, in misdemeanors, al-
lowed partly by way of compromise between the prosecuting
officer and the defendant. It differs but slightly, in its effect,
from the plea of guilty. Hawkins states the matter thus:
“An implied confession is where a defendant, in a case not
capital, doth not directly own himself guilty, but in a man-
ner admits it by yielding to the king’s mercy, and desiring to
submit to a small fine; in which case, if the court think fit
to accept of such submission, and make an entry that the de-
fendant posuit se in gratiam regis, without putting him to a
direct confession, or plea (which in such cases seems to be
left to discretion), the defendant shall not be estopped to
plead ot guilty to an action for the same fact, as he shall be
where the entry is quod cognovit indictamentum.”’* Perhaps
the only difference between this plea, where it is received,
and the plea of guilty, is, that while the latter is a solemn
confession which may bind the defendant in other proceed-
ings, the former is held to be a confession only for the pur-
poses of the particular case.*

§ 470. In Massachusetts a statute having provided, that
“no admission of the defendant, made in court, shall be re-
ceived on the trial, without the consent of the prosecutor,
except a plea of guilty”; it was held, that, where the plea

1 Rex v. Knightly, Holt, 398; The 8 9 Hawk. P. C.c. 31,43. And see
State v. Abrahams, 6 Iowa, 117; Davis 1 Chit. Crim. Law, 431.
v. The State, 20 Ga. 674. 4 Commonwealth v. Tilton, 8 Met. 232 ;
2 Rex v. Barrett, 2 Lewin, 264. Commonwealth v. Horton, 9 Pick, 206.

[327]
§ 472 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

of nolo contendere is received, the record must show at the
same time the prosecutor’s consent.

§ 471. In Wisconsin, a complaint before a justice of the
peace for assault and battery being read to the defendant, he
was asked by the justice, “Am I to understand you as plead-
ing guilty?” and answered, “ Yes, I did it: there ’s no use
denying it. How much is to pay? What is the bill?” It
was thereupon held, that this amounted to a plea of guilty,
and not merely one of nolo contendere.?

§ 472. There are, respecting the specific pleas, various
other points interspersed through these volumes. The read-
er can find them readily by consulting the Alphabetical
Index.

1 Commonwealth v. Adams, 6 Gray, 2 Birchard v. Booth, 4 Wis. 67.

359.
[328]
CHAP, XXVIII] FORMS OF PLEAS, ETC. § 475

CHAPTER XXVIII.
THE FORMS OF THE PLEAS, AND THE METHOD OF PLEADING THEM.

§ 473. Tue rules of civil and criminal pleading, as respects
the subject of this chapter, are so nearly alike that we shall
not do well to pause long here in our course through the
volume. A few points only will need attention.

§ 474. The pleas of guilty and not guilty are always, in
practice, when they are tendered unaccompanied with other
pleas, delivered orally by the prisoner and written down by
the clerk of the court. In other words, the ancient course
of pleading, by which all pleas, in causes civil and criminal
alike, were made orally and recorded thus, has not been
changed as to these particular pleas.

§ 475. But special pleas and pleas in abatement require
skill in the pleader, and are therefore not suitable to be de-
livered in this way. For, as Park, J. once observed: “ Ore
tenus [the name by which this sort of plea is sometimes tech-
nically designated] means that the prisoner may state the
plea, but he must do so in the proper form.”” And Patterson,
J. added: “ The only difference is, that it may either be put
upon parchment [in the United States paper is used instead
of parchment!] by the prisoner, or he may dictate it, ore te-
nus, and it may be taken down by the clerk of arraigns,
and put upon parchment by him.”? Still, it is not uncom-
mon in England, or at least it is or has been sometimes prac-
tised there, to permit the defendant, in cases of treason and
felony, to put in the various kinds of special and dilatory
pleas orally, to be taken down by the clerk as already men-
tioned.2 Probably-this practice had its growth as a part of

1 Ante, § 60. Crim. Law, 447; Rex ». Coogan, 1

2 Rex v. Bowman, 6 Car. & P. 337. Leach, 4th ed. 448; Commonwealth v.

8 Swan’s case, Foster, 104,105; Rex Merrill, 8 Allen, 545, 548.

v. Dean, 1 Leach, 4th ed. 476; 1 Chit.
28* [829]
§ 477 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

the system of defence by prisoners without counsel, when
charged with these high crimes. Be this as it may, the regu-
lar course in England has always been for these pleas to be
tendered in writing.

§ 476. In the United States, the practice of pleading these
special and dilatory pleas, ore tenus, is perhaps not quite un-
known; but, at all events, they are generally presented, and
by the court required to be so, in writing.2 Doubtless no
court would allow it to be otherwise where the prisoner is
regularly defended by counsel. Yet there are circumstances
in which, where the prisoner is destitute of counsel, a special
and perhaps even a dilatory plea should be allowed to be ten-
dered thus orally, and the clerk should be directed to trans-
fer it duly to the record, or otherwise real justice would fail
to be done.

§ 477. Leaving, now, the further consideration of these
pleas to the reader’s investigations in the books which treat
of pleading generally, we shall first give a digest of a few
points in a note,? then proceed to set out a few forms, and
thus close the discussion of this part of our subject.

11 Chit. Crim. Law, 448; Champ-
neys’ case, 2 Lewin, 52, 53, note.

2 See Commonwealth v. Merrill, 8
Allen, 545 ; The State v. Farr, 12 Rich.
24; Jordan v. The State, 22 Ga. 545.

8 A plea in abatement for a misno-
mer of the defendant must be in writ-
ing and verified by affidavit. The State
v. Farr, 12 Rich. 24. An issue joined
on a plea of misnomer in abatement
must be tried by the jury. The State
v. Marston, 31 Maine, 292. Where a
misnomer in an indictment is pleaded
in abatement, it is not a, good replica-
tion that the defendant is the same per-
son mentioned in the indictment. Com-
monwealth v. Dockham, Thacher Crim.
Cas. 238. To the plea in abatement
that the defendant’s name was Davis
and he was indicted under the name of
David, replication was made that he
was called and known by the name of
David as well as Davis. Held, a good

[330]

replication. Lewis v. The State, 1 Head,
829. The, following plea in abatement
for a wrong addition was held to be suf-
ficient : that, “at the time of the taking
of the said indictment, and long before,
he the said James. Clark was, and ever
since hath been, and still is, a laborer ;
without that, that he, the said James
Clark, now is, or at the taking of the said
indictment, or at any time before, was a
yeoman, as by the said indictment is sup-
posed,” &c.. Commonwealth v. Clark,
2 Va. Cas. 401. An indictment against
A by the addition of “ servant” is il] ;
but, if A plead in abatement, he must
give a better addition. Rex v. Check-
ets,6 M.&S. 88 One indicted for a
misdemeanor may plead in abatement a
misnomer of his surname; and the plea
concluding with praying judgment of
the said indictment, that he may not be
compelled to answer the same, is good.
Rex v. Shakespeare, 10 East, 83. Lord
OHAP. XXVIIL]

FORMS OF PLEAS, ETC.

§ 478

§ 478. The practice in the several States differs so much
as to render it impossible for an author to give forms of pleas

Ellenborough, C. J. said: “In abate-
ment, the court will give no other than
the proper judgment prayed for by the
party. And if it had not been for the
precedent cited (Rex v. Westby, 10
East, 85, note), I should have been
much inclined to think this plea bad in
that respect ; and that the prayer ought
to have been that the indictment should
be quashed. And without the defend-
ant prays a particular and proper judg-
ment in abatement, the court are not
bound to give the proper judgment upon
the whole record, as they would be in
the case of pleas in bar.” p. 87. A plea
in abatement should be certain to every
intent, and conclude by praying judg-
ment of the indictment, and that it
may be quashed, and must be verified
by affidavit. Findley ». People, 1 Mich.
234. It must be pleaded with strict
exactness. O’Connell v. Reg. 11 Cl
& F. 155. <A dilatory plea to an in-
dictment was set aside for want of an
affidavit to verify it. Rex v. Grainger,
3 Bur. 1617. A plea in abatement to
an indictment should specifically set
forth the grounds of objection. Bren-
nan v. People, 15 Ill. 511. The plea
in abatement is not favored, but must
be taken with great strictness. It should
begin by praying judgment of the pre-
sentment, and conclude with a like
prayer and that it be quashed. Lewis
v. The State, 1 Head, 329. Owens D.
Havely was indicted under the name of
Owen D. Haverly, and pleaded the mis-
nomer in abatement. To this plea the
State demurred. Held, that the court
had a right to say, as a matter of law,
the question being thus presented, that
the two names were idem sonans, and the
demurrer was sustained. The State v.
Havely, 21 Misso. 498. On a plea of
misnomer, the opinion of a witness, ac-
quainted with the writer’s hand, not an
expert, cannot be received as evidence
that a letter made as a “‘v,”’ in the in-

dictment, was intended for an “ r,” al-
though the writer usually made “r”
like other persons. Sayres v. The State,
30 Ala. 15. And Stone, J. made the
following observations, citing the au-
thorities which I copy also: “ The issue
in this case was idem sonans. General-
ly such issue is triable by the court
without evidence, and not by the jury.
We will not say there might not be
cases in which it would be permissible
to idtroduce evidence on this issue. A
foreign name might be in issue; and,
although the orthography of the two
supposed names might, according to
the laws of our language, require us to
affix to each a different sound, yet in
fact the foreign orthography might be
then sounded precisely as the letters em-
ployed by the American pleader would
be here pronounced, Whether, in such
case, the proper issue is dem sonans, or
that the party is as well known by the
one name as the other ; or, if the for-
mer, whether the issue thereby becomes
one for the jury ; we do not now deter-
mine. See Armstrong v. Burrows, 6
Watts, 266; Wusthoff v. Dracourt, 3
Watts, 240; Jennings v. Sherwood, 8
Conn. 122; Sidwell v. Roberts, 1 Pa.
382; Welsh v. Dusar, 3 Binn. 329;
Denison v. Wertz, 7 S. & R. 872;
Moore v. Miller, 4 S. & R. 279; Wat-
son v. Blaine, 12 S. & R. 181; Over-
ton v. Tracey, 148. & R. 311; Etting v.
United States Bank, 11 Wheat. 59;
Goddard v. Pratt, 16 Pick.412. There
are some authorities which hold, that,
‘where the writing is illegible or ob-
scure, the question what the letters re-
ally are, is matter of fact to be decided
by the jury.’ Armstrong v. Burrows,
6 Watts, 266. There are, however,
decisions the other way. Remon ».
Hayward, 2 A, & E. 666; Jackson v.
Ransom, 18 Johns. 107.” p. 17, 18.
If a party. would avail himself of the
protection of the Tennessee act of 1824,

[331]
[BOOK IIL

§ 479 PLEADINGS SUBSEQUENT TO INDICTMENT.

which can certainly be used in all the States, and which shall
contain no more than is necessary to be alleged in every State.
It is deemed, therefore, after some consideration, to be best
to transcribe here some forms from the 13th London edition
of Archbold’s Pleading and Evidence in Criminal Cases, and
append to them some observations from his text, as being
more practically useful than anything more American or
more original.

§.479. The Plea to the Jurisdiction : —

“ And. the said J. S., in his own proper person, cometh into court here,
and, having heard the said indictment read, saith, that the court of our lady
the Queen here ought not to take cognizance of the [trespass and assault]
in the said indictment above specified ; because, protesting that he is not
guilty of the same, nevertheless the said J. S. saith, that [&c., so proceed-
ing to state the matter of the plea. See the precedents, 1 Went. 10, 18;
4 Went. 63. Conclude thus]: And this the said J. S. is ready to verify;
wherefore he prays judgment if the said court of our lady the Queen now
here will or ought to take cognizance of the indictment aforesaid ; and that
by the court here he may be dismissed and discharged,” &c. Then add
profert of any letters patent which may have been set forth in the plea.
The form is the same in the Queen’s Bench, excepting that the court is de-
scribed as “the court of our said lady the Queen before the Queen herself
here ”; and, in the case of informations, the words, “ having heard the said
indictment read,” are omitted. The plea must be verified by affidavit.

The form of the replication to this plea is thus: * And hereupon J. N.
[the clerk of the peace or clerk of arraigns], who prosecutes for our said
lady the Queen in this behalf, says, that notwithstanding anything by the
said J. S. above in pleading alleged, this court ought not to be preclud-

c.5, exempting him from liability for
any offence about which he may have
testified before the grand jury, by a plea
in abatement, he must aver, specifically,
in his plea, that he was examined be-
fore the jury as to the particular offence
charged against him in the indictment.
An averment that he was summoned
and went before the grand jury to testify
as to unlawful gaming, &c., is not suffi-
cient. Owens v. The State, 2 Head, 455.
A plea in abatement to an indictment
for betting at cards, alleging that the
defendant had heen called before the
grand jury, and had given testimony as
to the identical game for which he was

[332]

indicted; but not alleging that the in-
dictment against him was found upon
the testimony then given by him ; was
held on demurrer to be radically defec-
tive. Buzzard v. The State, 20 Ark.
106. A plea of alien enemy, to an in-
dictment for larceny, is not good, if it
does not allege particularly the mode
and manner by which the defendants
are subjects of the sovereign at war;
and that the taking of the goods alleged
to have been stolen, was an act of war,
or that the defendant did the act in the
character of an enemy. The State v.
Stanhope, Brayt. 20.
CHAP. XXVIII] FORMS OF PLEAS, ETC. § 480

ed from taking cognizance of the indictment aforesaid; because he says,
that [&c., stating the matter of the replication], And this he the said J.
N. prays may be inquired of by the country,” &c. Or, if it conclude with
a verification, then thus : — “ And this he the said J. N. is ready to verify ;
wherefore he prays judgment, and that the said J. S. may answer to the
said indictment.” Where the plea is pleaded in the court of Queen’s Bench,
the replication is in the name of the master of the crown office, in the case
of an indictment or of an information filed by him; or in the name of the
attorney-general, in the case of informations ex officio.

§ 480. The Plea of Misnomer in Abatement : —

« And James Long, who is indicted by the name of George Long, in his
own proper person cometh into court here, and, having heard the said in-
dictment read, saith that he was baptized by the name of James, to wit, at
the parish aforesaid, in the county aforesaid, and by the Christian name of
James hath also since his baptism hitherto been called or known ; without
this, that he the said James Long now is or at any time hitherto hath been
ealled or known by the Christian name of George, as by the said indict-
ment is supposed; and this he the said James Long is ready to verify:
wherefore he prayeth judgment of the said indictment, and that the same
may be quashed,” &c.!

The replication to this plea is in form thus: “ And hereupon J. N. [the
clerk of the peace, or clerk of the arraigns], who prosecutes for our said
lady the Queen in this behalf, saith, that the said indictment, by reason of
anything by the said James Long in his said plea above alleged, ought not

1 He adds: “ Annexed to it [this
plea] must be an affidavit, Rex v. Grain-
ger, 3 Bur. 1617 [ante, § 477, note], in-
tituled in the court and cause, to this
effect : ‘James Long, of ——, the de-
fendant in this prosecution, maketh oath
and saith that the plea hereunto annex-
ed is true in substance and matter of
fact.’ It may be necessary to mention,
that, although usual, it is not essential
that the plea should state that the de-
fendant was baptized by such a name;
saying that it is his name, and that by
that name he was always called and
known, is sufficient. Walden v. Holman,
6 Mod. 115, 1 Salk.6; Read v. Mat-
teur, Cas. temp. Hardw. 286 ; Com. Dig.
Abatement, F, 17. The court will not
upon motion quash a bad plea in abate-
ment. Rex v. Cooke, 2 B. & C. 618,
871. .. .. This issue is generally
proved thus: the defendant gives in

evidence his certificate of baptism, with
evidence of identity, or proves by parol
evidence that he has always been called
James, and not George; and the prose-
cutor, on the other hand, proves that up-
on some occasion he has assumed the
name of George, or that he has usually
gone by that name. But it may be
questioned, perhaps, whether the proof
of this issue be not entirely on the pros-
ecutor. It is said, indeed, to have been
decided, that, if a defendant allege in
his plea that he was baptized by a cer-
tain name, he will be held to strict proof
of that fact; 1 Camp. 479; but this
is a mistake; for, even supposing the
proof of the issue to be upon the de-
fendant, he cannot be called upon to
prove the inducement to his traverse,
which is neither traversable nor travers- .
ed by the prosecutor.” Archb. Pl. &
Ey. 13th Lond. ed. 112, 113.
[833]
§ 482 PLEADINGS SUBSEQUENT TO INDICTMENT. [BOOK III.

to be quashed ; because he saith, that the said James Long, long before and
at the time of the preferring of the said indictment, was and still is known
as well by the name of George Long, as by the name of James Long, to
wit, at the parish aforesaid, in the county aforesaid ; and this he the said J.
N. prays may be enquired of by the country,” &c.

§ 481. Demurrer to an Indictment or Information : —

“ And the said J. 8. in his own proper person cometh into court here,
and, having heard the said indictment [or information] read, saith that the
said indictment [or information] and the matters therein contained, in man-
ner and form as the same are above stated and set forth, are not sufficient
in law, and that he the said J. 8. is not bound by the law of the land to
answer the same; and this he is ready to verify ; wherefore, for want of a
sufficient indictment [or information] in this behalf, the said J. 8. prays
judgment, and that by the court he may be dismissed and discharged from
the said premises in the said indictment [or information] specified.”

Joinder. “And J. N., who prosecutes for our said lady the Queen in
this behalf, saith, that the said indictment and the matters therein con-
tained, in manner and form as the same are above stated and set forth, are
sufficient in law to compel the said J. S. to answer the same; and the said
J. N., who prosecutes as aforesaid, is ready to verify and prove the same, as
the court here shall direct and award; wherefore, inasiauch as the said
S. hath not answered to the said indictment, nor hitherto in any manner
denied the same, the said J. N., for our said lady the Queen, prays judg-
ment, and that the said J. S. may be convicted of the premises in the said
indictment specified.” The like form, mutatis mutandis, may be adopted in
the case of informations, and of indictments in the court of Queen’s Bench.

§ 482. Demurrer to a Plea in Bar : —

“ And J. N,, who prosecutes for our said lady the Queen in this behalf, as
to the said plea of the said J. 8. by him above pleaded, saith that the same,
and the matters therein contained, in manner and form as the same are
above pleaded and set forth, are not sufficient in law to bar or preclude our
said lady the Queen from prosecuting the said indictment against him the
said J. S.; and that our said lady the Queen is not bound by the law of the
land to answer the same; and this the said J. N., who prosecutes as afore-
said, is ready to verify: wherefore, for want of a sufficient plea in this be-
half, he the said J. N., for our said lady the Queen, prays judgment, and
that the said J. S. may be convicted of the premises of the said indictment
specified.” The like form, mutatis mutandis, may be adopted in the case of
informations, and of indictments in the court of Queen’s Bench. A demur-
rer to a plea in abatement is in the same form, except that it concludes
with praying “judgment, and that the said indictment may be adjudged
good, and that the said J. S. may further answer thereto,” &c.

Joinder. ‘And the said J. S. saith, that his said plea by him above

[334]
CHAP. XXVIII. ] FORMS OF PLEAS, ETC. § 482

pleaded, and the matters therein contained, in manner and form as the same
are above pleaded and set forth, are sufficient in law to bar and preclude
our said lady the Queen from prosecuting the said indictment against him
the said J. S.; and the said J. S. is ready to verify and prove the same, as
the said court here shall direct and award : wherefore, inasmuch as the said
J. N., for our said lady the Queen, hath not answered the said plea, nor
hitherto in any manner denied the same, the said J.S. prays judgment, and
that by the court here he may be dismissed and discharged from the said
premises in the said indictment specified.” The joinder is the same, if the
demurrer be to a plea in abatement, except that it concludes with praying
“judgment, and that the said indictment may be quashed,” &c.'

2 Archb. Pl. & Ev. 18th Lond. ed. 111 - 116.
[335]
BOOK IV.

THE EVIDENCE.

CHAPTER XXIX.

PRESUMPTIONS AND THE BURDEN OF PROOF.

Srcr. 483, 484. Introduction.
485-495. The Doctrine of Presumptions in Criminal Causes.
496-498. Burden of Proof in Criminal Causes.
499-501. Distinction between Circumstantial and Direct Evidence.
502, 503. Evidence in Civil and Criminal Causes compared.

§ 483. Comine now to a consideration of the evidence, we
are obliged to condense what is to be said more than has been
done in the foregoing parts of the present volume. The sub-
ject of evidence is a vast one in itself; but, what principally
concerns us here, the evidence in civil and criminal causes is
so nearly identical as to render it scarcely useful for a work
devoted particularly to the criminal law, to discuss it very
much at large. At the proper time, the author’s views upon
this entire subject of the evidence in causes civil and crim-
inal will be given to the public; and then the harmony be-
tween the parts there and here will more fully appear.

§ 484. In the present chapter, we shall consider, I. The
Doctrine of Presumptions as illustrated in Criminal Causes ;
II. The Burden of Proof in these Causes; III. The distinc-
tion between Circumstantial and Direct Evidence ; IV. The
Evidence in Civil and Criminal Causes, in the foregoing re-
spects, compared.

I. The Doctrine of Presumptions as illustrated in Criminal
Causes.

§ 485. Almost the entire law of evidence rests on pre-
[336]
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. § 486

sumptions. If a witness testifies that he saw a particular
transaction, this evidence, which in legal phrase is termed
direct, in distinction from presumptive, and from circumstan-
tial, derives, in truth, its whole force from presumption. It
is presumed that the witness testifies according to his under-
standing of the facts, —still the presumption may in a par-
ticular instance be a mistaken one. It is presumed that his
organs of vision were in a healthy state, by reason of which
they were not likely to mislead him, — still, in the particular
case, they may have misled. It is presumed, that his other
faculties were in such a normal and sound condition that his
mind involuntarily drew the right inference from the impres-
sion which the rays of light made on the retina of his eye,
— yet, after all, the fact may be otherwise. There is nothing,
or next to nothing, in the absolute sense, direct and cer-
tain among the various sources of knowledge which are
open to us in our earthly life; nevertheless, all men act and
must act on what reasonably appears to be true, else we
should cease to move, and our race would be snuffed out like
a candle.

§ 486. In the work on the Criminal Law, as it stood in the
first two editions, there was a section which was omitted from
the third edition, illustrating the doctrine of presumptions,
as follows: Thus the law presumes, that every person intends
to do what he does ;! and intends the natural, necessary, and
even probable consequences of his act.2 Of course, the pre-

1 Hill v. Commonwealth, 2 Grat. 594 ;
Taylor v. The State, 4 Ga. 14.

2 | Greenl. Ev. § 18; 3 Greenl. Ev.
§13; Rex v. Harvey, 3 D. & R. 464, 2
B. & C. 257; Reg. v. Gathercole, 2
Lewin, 237 ; People v. Herrick, 13
Wend. 87; United States v. Wiltber-
ger, 3 Wash. C. C. 515; The State v.
Fuller, 1 Bay, 245 ; Commonwealth v.
Snelling, 15 Pick. 337 ; Commonwealth
* v. Bonner, 9 Met. 410; Commonwealth
v. Blanding, 3 Pick. 304 ; Common-
wealth v. Drew, 4 Mass. 391; Hill v.
Commonwealth, 2 Grat. 594; The State
v. Turner, Wright, 20; Reg. v. Beard,

VOL. IL. 29

8 Car. & P. 143, 148 ; Reg. v. Renshaw,
11 Jur. 615, 616; Rex v. Farrington,
Russ. & Ry. 207; Rex v. Philip, 1
Moody, 263; Rex v. Cooper, 5 Car. &
P. 535; Reg. v. Holroyd, 2 Moody &
R. 839; 1 East P. C. 371; Rex o.
Dixon, 3 M. & S. 11, 15; Reg. v.
Geach, 9 Car. & P. 499; Rex v. Car-
ter, 7 Car. & P. 1384; West v. The
State, 9 Humph. 66; Reg. v. Jones, 9
Car. & P. 258; The State v. Council, 1
Tenn. 305 ; Reg. v. Lovett, 9 Car. & P.
462 ; Cumming’s case, Shaw Crim.
Cas. 17, 70,102 ; Hoskins v. The State,
11 Ga. 92.

[337]
§ 486 THE EVIDENCE. [BOOK Iv.

sumption of an intent to do the act is always open to be re-
butted;! but, this intent being established, the deduction,
that the consequences were also intended, is generally, not
always,? conclusive. The exact line of distinction between
‘the conclusive and the rebuttable presumption is not clear ;
probably the conclusive character attaches in most cases
where the act done is unlawful, and the consequence is not
too remote or contingent. One, for example, who inten-
tionally utters a forged instrument, .is conclusively presumed
to intend a fraud on the person whose name is forged ;4 and
a similar deduction is drawn when an unlawful act is wilfully
done, producing death.6 Yet it would seem to be going too
far to say, that, in all cases of an unlawful act intentionally
performed, the presumption as to the consequences is conclu-
sive.© The present state of the authorities is not such as ad-

mits of an exact rule on this point.

1 United States v. Pearce, 2 McLean,
14,19; Taylor v. The State, 4 Ga. 14.
2 People v. Herrick, 13 Wend. 87;
Chesley v. Brown, 2 Fairf. 143; Rex
v. Reeves, Peake Ad. Cas. 84; Reg. v.
‘Harvey, 3D. & R. 464, 2 B. & C. 257;
Rex v. Burdett, 4 B. & Ald. 95,3 B. &
Ald. 717 ; Miller v. People, 5 Barb.
203; People v. Cotteral, 18 Johns. 115.
8 Chichester’s case, Aleyn, 12; Rex
v. Pedley, Cald. 218, 227; Common-
wealth v. Snelling, 15 Pick. 337 ; The
State v. Davis, 2 Ire. 153; 1 East P.
C. 59; 1 Greenl. Ev. § 18; The State
v. Council, 1 Tenn. 305; The State v.
Jarrott, 1 Ire. 76; Rex v. Howlett, 7
Car. & P. 274; Dexter v. Spear, 4 Ma-
son, 115. But see People v. Cotteral,
18 Johns. 115 ; The State v. Mitch-
ell, 5 Ire. 350, “It may appear on
proof,” it was remarked in a Scotch
case, “that the panel had no actual
intention of injuring the boy; but
there may be a constructive intention.”
Keay’s case, 1 Swinton, 543, 546.
“The law, ” says Drake, J. “makes a
man answerable for even the unexpect-
ed consequences of ‘his crimes ; and for
this purpose imputes the intention to

[388]

produce the consequence, as well as the
original act. But to constitute a crime
there must be an act of the will, an im-
puted intent must have real intent as its
basis ; not to accomplish the precise re-
sult, but to do something. Some act of
commission or omission lies at the foun-
dation of every crime.” The State ».
Cooper, 1 Green, N. J. 361, 371.
4 Reg. v. Marcus, 2 Car. & K. 356;
-Rex v. Mazagora, Russ. & Ry. 291;
Reg. v. Cooke, 8 Car. & P. 582; Reg.
v. Hill, 8 Car. & P. 274; Reg. 0. Han-
son, Car. & M. 334; Rex a Philp, l
Moody, 263; Reg. v. Beard, 8 Car. &
P. 143, 148; Reg. v. Hoatson, 2 Car.
& K. 777 ; United States v. Shellmire,
Bald. 370. But see Grafton Bank v.
Flanders, 4 N. H. 239, 242.

5 Reg. v. Renshaw, 11 Jur. 615, 616;
Chichester’s case, Aleyn, 12; Rex 2.
Shaw, 6 Car. & P. 372 ; Rex v. Cheese-
man, 7 Car. & P. 455; The State v.
Smith, 2 Strob. 77 ; Reg. v. Pitts, Car.
& M. 284 ; Rex v. Martin, 3 Car. & P.
211.

6 The State v. Hildreth, 9 Ire. 429 ;
Wright v. The State, 9 Yerg. 342;
Beauchamp ». The State, 6 Blackf. 299 ;
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. § 488.

§ 487. It.is not deemed best to expand. the discussion, in
this work, so far as to trace the doctrine of presumptions
through the entire field of the law of evidence; but a few
illustrations of it, as it is seen in the criminal department of
the law, will be important here. Other illustrations will ap-
pear when we come to treat of the several. specific offences,
and the like. Ifa man is known to.be addicted to various
kinds of vice and crime, one is more ready to. believe him
guilty of some new offence than if he were a person of irre-
proachable character. Still, in point of law, every defend-
ant on trial for a particular crime is presumed to be inno-
cent both of it and of every other crime, until the contrary
is duly shown in evidence. And if, on the trial of two de-
fendants who are jointly indicted, it appears that one of them
is guilty, but it does not appear which one, there can be a
conviction of neither.2 In like manner, third persons are
presumed to be innocent; but this presumption as to third
persons cannot, to the full extent, be received to show guilt.
in the defendant. Therefore where a statute makes it an of-
fence to seduce a female of previous chastity, such previous
chastity cannot be presumed, it must be proved ; because to
presume it would be to disregard the presumption of inuno-
cence which the law raises for the protection of the prisoner.*

§ 488. When a crime is shown to have been committed,
there is no presumption in law that a particular person was
the perpetrator of it; nor can such a presumption be raised
against a defendant by proving his character tobe bad. Evi-

Worley ». The State, 11 Humph. 172; five men were indicted for murder ; and

Commonwealth v. Clap, 4 Mass. 163 ;
The State v. Jefferson, 3 Harring. Del.
571. And see The State v. Bullock,
13 Ala. 418; Gibson’s case, 2 Broun,
366 ; Reg. v. Jones, 9 Car. & P. 258 ;
Southworth v. The State, 5 Conn. 325 ;
Reg. v. Cruse, 8 Car. & P. 541; Rex
v. Mogg, 4 Car. & P. 364.

1 Pilkinton v. The State, 19 Texas,
214. See People v. Dixon, 4 Parker
C. C. 651.

2 “ Tt is like the Ipswich case, where

it appeared, on a special verdict, that it
was murder in one, but not in the other
four ; but it did not appear which of
the five had given the blow which caus-
ed the death, and the court thereupon
said, that, as the man could not be
clearly and positively ascertained, all
of them must be discharged.” Rex v.
Richardson, 1 Leach, 4th ed. 387.

8 1 Bishop Mar. & Div. § 440, 441,
444 - 446. .

4 West v. The State, 1 Wis. 209.

[339]
§ 489 [BOOK Iv.

THE EVIDENCE.

dence, therefore, of bad character, where the prisoner has in-
troduced no evidence in support of his character, cannot be
brought forward by the government in the first instance
against him.} | Even in a prosecution for stealing a particu-
lar horse, it cannot be given in evidence against the defend-
ant that he associated with horse thieves.2 But after the
government has made out its prima facie case against the
prisoner, then, his character, or at least his conduct, having
been thus attacked, he may give evidence of his good charac-
ter to sustain the original presumption of the law?; and, in
reply to this, the government may introduce evidence of his
bad character.*

§ 489. Professor Greenleaf says: ‘The evidence, when
admissible, ought to be restricted to the trait of character
which is in issue; or, as it is elsewhere expressed, ought to
bear some analogy and reference to the nature of the charge ;
it being obviously irrelevant and absurd, on a charge of
stealing, to inquire into the prisoner’s loyalty ; or, on a trial
for treason, to inquire into his character for honesty in his
private dealings.”® And there are many American cases
which seem to sustain, more or less directly, this general
view ;° yet it is believed, that, at least in some of the States,
the inquiry as to character is permitted to take a pretty wide
range,’ and its limits are those which are suggested rather by
the propriety of the case than by absolute rules of law. In

* People v. White, 14 Wend. 111;
The State v. Jackson, 17 Misso. 544 ;
Thompson ». Church, 1 Root, 312.

2 Cheny v. The State, 7 Ohio, 222.

8 3 Greenl. Ev. § 25; Schaller wv.
The State, 14 Misso. 502 ; Dupree v.
The State, 33 Ala. 380; The State v.
Wells, Coxe, 424.

* McDaniel v. The State, 8 Sm. &
M. 401; Carter v Commonwealth, 2
Va, Cas. 169. And see the authorities
cited to the next section.

53 Greenl. Ev. § 25, referring to 1
Greenl. Ev. § 55; 1 Phil. Ev. 9th ed.
469; 2 Russ. Crimes, 784; Best Pre-
sump. § 153, p. 213.

[340]

6 The State v. Dalton, 27 Misso. 13;
People v. Josephs, 7'Cal. 129; Dupree
o. The State, 33 Ala. 380; Davis >.
The State, 10 Ga. 101 ; Carroll v. The
State, 3 Humph. 315; Gandolfo v. The
State, 11 Ohio State, 114.

7 Carter v. Commonwealth, 2 Va.
Cas. 169 ; People v. Bodine, 1 Denio,
281.

8 And see Cathcart ». Common-
wealth, 1 Wright, Pa. 108, In Massa-
chusetts it was held, that, on an indict-
ment under a city by-law against fast
driving, evidence of the defendant’s char-
acter as a careful driver was irrelevant ;
for, said the judge, “it was not a case
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. § 489

like manner it is obvious, and so it is often stated to the jury,
that a good character can have little or no practical weight
with them in a clear case, where the evidence against the pris-
oner is direct and otherwise satisfactory.! Still, where the
court below had charged the jury, as matter of law, that, “in
a plain case, a good character would not help the prisoner ;
but, in a doubtful case, he had a right to have it cast into the
scales and weighed in his behalf”; this was held to be error,
the true rule being that in all cases a good character is to be
considered.” The correct view is, that the evidence of good
character is always to have its due weight with the jury ; it
isso much cast into the balance ; but it cannot practically turn
the scale in a clear case against the prisoner, as it sometimes

might when the balance stood otherwise more nearly even.?

involving the defendant’s character.”
Commonwealth v. Worcester, 3 Pick.
462, 473.

1 The State v. Wells, Coxe, 424;
People v. Josephs, 7 Cal. 129 ; McDan-
iel v. The State, 8 Sm. & M. 401; Peo-
ple v. Hammill, 2 Parker C. C. 223;
Wesley v. The State, 37 Missis. 327 ;
United States v. Roudenbush, Bald.
514 ; People v. Cole, 4 Parker C. C.
35.

2 The State v. Henry, 5 Jones, N. C.
65. Said Battle, J.: “It is admitted,
that, in all cases, a person accused of a
crime of any grade, whether a felony
or a misdemeanor, has a right to offer
in his defence testimony of his good
character. Whatever is admitted as
competent evidence must be for the con-
sideration of the jury. Who, then, is
to decide whether the case is a plain
one, by which the testimony is to be
withdrawn from them? It cannot be
the court, because that would be decid-
ing on the facts, and thus usurping the
province of the jury. It cannot be the
jury, because that would be deciding
the preliminary question of competen-
cy, and thus usurping the province of
the court. The advocate of the rule is
thus placed in « dilemma, by taking

29 *

either horn of which he is involved in
an absurdity. The true rule is, that the
testimony is to go to the jury, and be
considered by them, in connection with
all the other facts and circumstances ;
and, if they believe the accused to be
guilty, they must so find, notwithstand-
ing his good character.” p. 67. So, in
the trial of one indicted for murder, who
admitted the homicide but rested his de-
fence on the ground of justifiable kill-
ing, it was held to be error in the court
to charge the jury, that the defendant’s
evidence of good character as a peace-
able man, applied only to cases where it
was a question whether the homicide had
been committed by the accused. Davis
v. The State, 10 Ga. 101. On the trial
of an indictment for murder, the evi-
dence was circumstantial, and the judge
instructed the jury that fair character
was important to the prisoner, and that
they were to inquire “ why it was that
she had given no evidence of her gen-
eral character.” This instruction, it
was held, suggested the inference that
her character was bad, and was there-
fore erroneous. People v. Bodine, 1
Denio, 281.

® Stephens v. People, 4 Parker C. C.
396; United States v. Whitaker, 6 Mc-

[341]
THE EVIDENCE.

§ 491 [BOOK Iv.

§ 490. For a reason similar to that which precludes the
government from introducing evidence of the bad character
of the prisoner, as foundation on which to raise the presump-
tion of his guilt in the particular case, evidence also of anoth-
er crime than the one charged is not permitted to be brought
forward against him. It is even not permissible, as a general
rule, to show that the defendant has committed other crimes
of the same kind as the one for which he is being tried ; as,
for instance, if he is being tried for larceny, to show that he
has committed, at other times and places, other and discon-
nected larcenies ;? or, for riot, to show that he has been en-
gaged in other riots ;? or, for the murder of a particular per-
son by poison, to show the poisoning of another person at
another time and place.* Much less is it permissible to show
a different sort of crime committed by the prisoner ; as, on a
trial for murder, to produce particular instances in which the
defendant has had differences with persons other than the
deceased,° or a particular instance in which he set fire to the
house of the deceased in the night time,® or was accused of
seduction ; though, in the last-mentioned case, the evidence
is offered to explain a melancholy which the defendant had
relied on as proof of his insanity.’

§ 491. The doctrine thus stated is not carried so far as to
exclude evidence which has a direct tendency to prove the
particular crime for which the prisoner stands indicted. If
the evidence offered has this direct tendency, it is to be re-

Lean, 342. It is not error for the court
to refuse to charge the jury, that proof
of previous good character is a sufficient
defence in a doubtful case. Coats v.
People, 4 Parker C. C. 662.

1 United States v. Mitchell, 2 Dall.
348, and the remaining cases cited to
this section.

2 Barton v. The State, 18 Ohio, 221 ;
Cole v. Commonwealth, 5 Grat. 696 ;
Reg. v. Butler, 2 Car. & K. 221, 2 Cox
C. C. 132. |

8 The State v. Renton, 15 N. H. 169.

* Farrer v. The State, 2 Ohio State,
54. So under an indictment for an as-

[342] '

sault on A, with intent to murder, the
defendant’s threats, made several hours
“previous to the fight,” that he would
kill B, are not admissible in evidence
against him. Ogletree v. The State, 28
Ala. 693.

5 Gordon v. The State, 3 Iowa, 410.

® Stone v. The State, 4 Humph. 27,
Turley, J. observing: “It is now ob-
jected, that, this being a substantive felo-
ny, the proof going to establish it was il-
legal. And of this there can be no doubt,
upon well-settled principles.” p. 35.

7 People v. Thurston, 2 Parker C. C.
49.
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. § 492

ceived, though it also tends to prove the commission of an-
other and distinct offence. Yet, under such circumstances
as the mere pretence of discrediting a witness, the prosecutor
cannot introduce evidence of another and distinct offence
committed by the prisoner. A person accused before a jury
has the right to be protected from undue prejudice excited
by evidence foreign to the direct point in issue ;? while, on
the other hand, nothing which is directly calculated to estab-
lish this point is to be excluded out of mere tenderness to
him.

§ 492. The intent with which a particular act is done is
often the gist of the offence ; yet to prove the intent requires,
in many instances, an examination extending beyond the
mere one transaction. For the purpose, therefore, of proving
the intent, not of proving the act itself, it is often permissible
to show other criminal transactions of the same sort, spring-
ing from the like mental condition. Thus, on an indictment
for having in possession forged paper or @ounterfeit coin with
intent to pass it, or for passing the same, knowing it to be
forged or counterfeit, it is the every-day practice to receive
evidence of other like transactions, or of other forged or coun-
terfeit paper or coin being found upon the prisoner, as showing
knowledge of its spurious character, or making plain his in-
tent. So the intent with which a prisoner charged with a

1 Rex v. Moore, 2 Car. & P. 235:
Rex »v. Salisbury, 5 Car. & P. 155;
Reg. ». Briggs, 2 Moody & R. 199;
Stout v. People, 4 Parker C. C. 71, 132 ;
The State v. Petty, Harper, 59.

2 Hoberg v. The State, 3 Minn. 262.

8 Ante, § 213.

4 The State v. Petty, Harper, 59 ;
Martin v. Commonwealth, 2 Leigh, 745 ;
The State ». McAllister, 24 Maine, 139 ;
The State v. Van Houten, 2 Penning-
ton, 672; Reg. v. Forster, Dears. 456,
29 Eng. L. & Eq. 548,1 Jur. x. 8. 407,
6 Cox C. C. 521; Commonwealth v.
Miller, 3 Cush. 243 ; Reed v. The State,
15 Ohio, 217; The State v. Williams,
2 Rich. 418; Rex v. Ball, Russ. &
Ry. 132, 1 Camp. 324 ; Reg. v. Jarvis,

Dears. 552, 7 Cox C. C. 53, 83 Eng. L.
& Eq. 567 ; Commonwealth v. Stearns,
10 Met. 256; Johnson v. The State, 35
Ala. 870 ; The State v. Tindal, 5 Har-
ring. Del. 488; Hess v. The State,
5 Ohio, 5; Powers v. The State, 4
Humph. 274; The State v. Robinson,
1 Harrison, 507 ; The State v. Mix, 15
Misso. 153; Commonwealth v. Bigelow,
8 Met. 235. So, in a prosecution for
passing a forged note, knowing it to be
forged, evidence that the prisoner en-
deavored to engage a person to procure
for him counterfeit money ; that he en-
quired whether he had brought him any ;
and of declarations that he intended to
cultivate the acquaintance of a counter-
feiter, and intended to remove to a place

[343]
§ 493 THE EVIDENCE. [BOOK Iv.
statutory burglary entered one store, may be shown by prov-
ing a felony committed by him, at the same time, in an ad-
joining store.! Likewise in a civil case it was held, that, to
prove a conspiracy to commit a particular fraud, evidence is
admissible of a like fraud committed by the conspirators on a
third person at about the same time.? And on the trial of an
indictment for libel, evidence may be received of other publi-
cations on the same subject, in proof of the alleged malice.®

§ 493. The doctrine of the last section has its limits. Thus,
in a Connecticut case, on an information for passing counter-
feit coin, knowing it to be counterfeit, the prosecutor, to show
the guilty knowledge in the prisoner, offered evidence of his
having had in his possession, at the same time, an engraved
paper like a bank note, but not purporting to be signed or
countersigned ; yet this evidence was held to be inadmissible.
And Peters, J. drew the following distinctions: “In order to
show the guilty knowledge of the prisoner, evidence was ad-
missible that he hadtuttered other base coin to other persons,
on the same day or near the time. So the circumstance that
the prisoner, at the time of uttering the half dollar, had other
counterfeit coin, — especially if it was of the same description
with that uttered, — is also evidence to the same purpose.
But to make such circumstances evidence, there must be a
strong connection in the subject-matter ; as, upon an indict-
ment for forging and uttering a bill of exchange, it was hold-

near his residence, is admissible, as
tending to prove the scienter. Finn v.
Commonwealth, 5 Rand. 701. It has
been held, that the principle stated in
the text applies, even though the defend-
ant has been tried and acquitted on the
charge of passing the counterfeit in the
other instance. Said Colcock, J.: “It
being established that such evidence is
generally competent, the fact of the pris-
oner’s having been tried and acquitted
on the note, which was produced in evi-
dence, cannot affect the principle, al-
though it may weaken the force of the
evidence. Under the circumstances, it
was made to appear to the jury that the

[344]

acquittal proceeded from a defect in the
indictment ; but it may have proceeded
from the absence of witnesses. It does
not follow, that, because a man is ac-
quitted, he is innocent ; the legal con-
sequence is, that he cannot be tried
again. But still he may have been
guilty, and this guilt may be shown
in a collateral matter.” The State v.
Houston, 1 Bailey, 300, 303.

1 Osborne v. People, 2 Parker C. C.
583.

® Luckey v. Roberts, 25 Conn. 486.

8 Rex v. Pearce, Peake, 75; The
State v. Jeandell, 5 Harring. Del. 475.
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. § 493

en that the prosecutor was not at liberty to prove that a bank
note, which was found in the pocket of the prisoner, was
forged.” 1 So, in an English case, where the prisoner was
indicted for receiving stolen goods, knowing them to be stolen,
it was not permitted to the prosecutor, in order to establish
the guilty knowledge, to prove that on previous occasions
other stolen goods, the property of other owners, had been
found in the prisoner’s possession ; because the possession of
those other stolen goods, on those previous occasions, did not
tend to show a knowledge that these particular goods were
stolen.? Perhaps the following sentence expresses the doc-
trine in as distinct and precise terms and outline as can well
be employed; while yet it will be practically convenient for
the reader to see, in a note, a digest of some further cases il-

1 Stalker v. The State, 9 Conn. 341,
343.

2 Reg. v. Oddy, 2 Den. C. C. 264, 5
Cox C. C .210, 4 Eng. L. & Eq. 572. In
a New York case, on an indictment for
receiving stolen goods, knowing them
to be stolen, evidence of several like
acts was held to be admissible. People
v. Rando, 3 Parker C. C. 335. See
Rex v. Davis, 6 Car. & P.177. If the
prisoner receives at different times prop-
erty stolen from the prosecutor, although
the substantive charge must be confined
to some one receiving, yet the other re-
ceivings may be given in evidence to
show a guilty knowledge that the goods
were stolen. In this case, the judge
told the jury, that, ‘as it appeared the
different articles had all been taken from
the house of the prosecutors, and had all
come into the possession of Smith [the
receiver] from Dunn [the thief], they
might take into their consideration the
circumstance of her having the various
articles of stolen property in her posses-
sion, and pledging or otherwise dispos-
ing of them at various times, as an in-
gredient in coming to a determination,
whether, when she received the two
pieces of silk, she knew them, or either
of them, to have been stolen.” And this

instruction was held to be correct. Rex
v. Dunn, 1 Moody, 146, 150. And see
Reg. v. Mansfield, Car. & M. 140.

8 Let us divide our digest into such
evidence as tends, or not, to prove the
intent; and into such as tends or not,
to prove the act.

1. Evidence going to the intent. Up-
on an indictment for uttering a coun-
terfeit half-crown, in order to prove the
guilty knowledge, evidence was given
of a subsequent uttering, by the prison-
er, of a counterfeit shilling. Held, that
this evidence was admissible. Reg. v.
Forster, Dears. 456, 29 Eng. L. & Eq.
548, 6 Cox C.C. 521. On the trial
of an indictment for passing 4 coun-
terfeit note of the bank of the United
States, evidence of passing a coun-

‘terfeit note of a State bank, at an-

other time, is not admissible, or, if
given without objection, the jury will
be instructed not to consider it. Unit-
ed States v. Roudenbush, Bald. 514.
But after evidence that a note of the
description laid in the indictment had
been forged and passed, evidence may
be given of delivering or passing other
counterfeit notes on the same bank, be-
fore or after passing the one in ques-
tion. United States v. Doebler, Bald.

[345]
§ 493

THE EVIDENCE.

[BOOK Iv.

lustrating the doctrine. It is, that, though the prisoner is
not to be prejudiced in the eyes of the jury by the needless

519. In order to show a guilty knowl:
edge, on an indictment for uttering forg-
ed bank-notes, evidence of another ut-
tering, subsequent to the one charged,
is not admissible, unless the latter utter-
ing was in some way connected with the
principal case, or it can be shown that
the notes were of the same’ manufac-
ture ; for only previous or contempora-
neous acts can show quo animo a thing
is done. Rex v. Taverner, Car. Crim.
Law, 3d ed. 195. 8. p. Dibble v. People,
4 Parker C. C. 199. And see People
v. Wood, 3 Parker C. C. 681; People
v. Stewart, 5 Mich. 243; The State v.
Freeman, 4 Jones, N.C. 5. Butit may
be doubtful whether these cases do not
go farther than many others in exclud-
ing this kind of evidence. See the cases
cited, ante, § 492; Rex v. Smith, 4 Car.
& P.411. On indictments for uttering
forged Polish notes, it was held that
conversations with the prisoners respect-
ing the forgery and circulation of forged
Austrian notes were admissible in evi-
dence to prove the scienter. Rex v. Har-
ris, 7 Car. & P. 429. Under an indict-
ment for having counterfeit notes, the
State cannot be allowed to prove the
prisoner’s possession of material for
making counterfeit coin, in order to
prove a scienter, or an intent to utter.
Bluff v. The State, 10 Ohio State, 547.
Under an indictment for passing coun-
terfeit money, evidence that at about
the time when the offence was commit-
ted the defendant’s wife in his absence
had sold to the witnéss a counterfeit
bill, which transaction the defendant
was subsequently advised of and sanc-
tioned, was admitted as tending to show
the guilty knowledge on the part of the
defendant. Bersch v. The State, 13
Ind. 434. The fact that the defendant,
in an indictment for arson, a few months
before the burning charged, requested
the witness to burn the house, is admis-
sible in evidence. Martin v. The State,

[346]

28 Ala. 71. On an indictment for ob-
taining money by false pretences, the pre-
tence being that a-chain left in pledge
was silver while it was known by the
defendant not to be, evidence was ad-
mitted to prove that the prisoner, a few
days after the commission of the above
offence, offered a similar chain in pledge
to another pawnbroker; and that twen-
ty-six similar chains. were found upon
the person of the prisoner when he was
apprehended. Held, that the evidence
was properly admitted. Reg. v. Roe-
buck, Dears. & B. 24, 7 Cox C. C. 126,
36 Eng. L. & Eq. 631. If persons who
had formed part of a mob obtain money
from a party by advising him to give
money tothe mob, and are indicted for
this as a robbery, the prosecutor, to
show that this was not bona fide advice,
may give evidence of demands of money
made by the same mob at other places,
before or afterward, in. the course of the
same day, if any of the prisoners were
present on those occasions. Rex 2.
Winkworth, 4 Car: & P. 444, Where’
A was indicted for larceny of a gun
which he borrowed to go a hunting, as
the prosecutor supposed, the next.day,
evidence that he got a horse the next
mnorning, as he said, to go to B, to be
returned the evening of the same or the
following day, yet did not go to B, but
in an opposite direction, then sold the
horse and did not return, was held ad-
missible. Said Lipscomb, J.: “ It was
a circumstance showing and explaining
the intention of the prisoner when he
obtained possession of the gun, under
the pretence of a loan, to go a hunting
with it.” White #. The State, 11 Texas,
769,773. On the trial of an indictment
for murder, evidence that the prisoner
had beaten his wife, and forced her to
abandon his house and seek refuge un-
der the protection of the deceased, was
held to be proper proof of malice pre-
pense on the part of the prisoner. Stone
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF.

§ 493

admission of testimony tending to prove another crime, yet,
whenever the evidence which tends to prove the other crime

v. The State, 4 Humph. 27. Where a
_person was indicted as accessory before
the fact to the crime of murder, and it
appeared that the inducement to the
murder was the exertions of the de-
ceased to ascertain the perpetrators of a
previous murder, it was held competent
to show the guilt of the prisoner as to
the former murder, for the purpose of
showing a motive for his conduct re-
specting the murder in question. Dunn

- v. The State, 2 Pike, 229. On the trial
of an indictment for obtaining property
of the prosecutor, in one county, by
pretending to have a warrant against
him for a criminal offence and by
threats and promises, evidence was held
admissible that the defendant, after ob-
taining such property in such manner
in the county alleged, pursued the pros-
ecutor the next day into an adjoining
county, and there obtained other proper-
ty from him by similar threats. Britt v.
The State,9 Humph. 31. And see Reg.
v. Kain, 8 Car. & P. 187. On the trial
of an indictment for the unlicensed sale
of intoxicating liquor, it is competent
to the government to give in evidence
the declaration of the defendant that he
considered the law unconstitutional, and
intended to sell in disregard of it, al-
though the alleged sale was after the de-
fendant had been convicted on an in-
dictment for a similar offence, on the
trial of which the same declaration had
been given in evidence. Commonwealth
v. Kimball, 24 Pick., 366.

2. Evidence relating to the act, The
whole of the particular transaction may
be shown, though it shows also another
crime committed by the prisoner, be-
sides the one charged in the indictment.
Thus, on a trial for murder, evidence
was offered, that the prisoner, on the
same day the deceased was killed, and
shortly before the killing, shot a third
person. Held, that the evidence was
admissible, under the circumstances of

the case, though it tended to prove a
distinet felony committed by the pris-
oner ; such shooting, and the killing of
the deceased, appearing to be connected
as parts of one entire transaction. Heath
». Commonwealth, 1 Rob. Va. 735.
So, on an indictment for forcible entry
and detainer, evidence is admissible,
‘that the defendant, in forcibly entering,
&ec., assaulted and beat the party in
possession. Higgins v. The State, 7
Ind. 549. Upon a trial for grand lar-
ceny, it is competent, where there is a
sufficient description of property taken
to constitute the offence, to give in evi-
dence the taking of other property, in-
sufficiently described, as an attending
circumstance. Haskins v. People, 16
N. Y. 344. On a trial for larceny in a
hotel, ‘it is competent for the common-
wealth to prove the presence of the
prisoner in the hotel, on the night when
the larceny was committed, and his acts
and conduct there, and the circumstan-
ces attending his arrest, as a part of the
whole transaction, though these acts
amounted to an attempt to commit a
felony on another person in another
part of the hotel. Burr v. Common-
wealth, 4 Grat. 534. A set fire to the
ricks of B, C, and D, one imme-
diately after the other. There were
three indictments, and for firing each
rick ; the rick burnt last was the subject
of the indictment first tried. A wit-
ness was permitted on the trial to prove
the whole ; “all constituting part of the
same transaction.” Rex v. Long, 6
Car. & P.179. A and B, when riding
in a gig together, were robbed at the
same time, A of his money, B of his
watch, and violence was used toward
both. There was an indictment for the
robbing of A, and another indictment
for the robbing of B. Held, that, on
the trial of the first indictment, evidence
might be given of the fact of the loss
of the watch by B, and that it was

[347]
[BOOK Iv.

§ 495 THE EVIDENCE.

tends also to prove this one, not merely by showing the pris-
oner to be a bad man, but by showing the particular bad in-
tent to have existed in his mind at the time when he did the
act complained of, it is admissible ; and it is also admissible,
if it really tends thus, as in the facts of most cases it does not,
to prove the act itself.

§ 494. Another presumption is, that a man who acts in an
assumed official capacity, truly and of right holds the office
the functions of which he thus performs.! It is not therefore
necessary, prima facie, to prove the official character, other-
wise than by evidence of reputation, and publicly acting in
the office,? even though there exists record evidence of the of-
ficial appointment. This is the usual evidence of official
character, even in criminal cases; but there are circumstan-
ces in which, as where this evidence is not existing, it be-
comes necessary to prove the official character, or the appoint-

ment to office, in some other way.*

The law raises also the

presumption, that official persons have done their duty.é
§ 495. But it is deemed best not to proceed further here
with these enumerations of the presumptions which the law

found on one of the prisoners, but that
no evidence ought to be given of any
violence offered to B by the robbers.
Rex v. Rooney, 7 Car. & P.517. A
was indicted for stabbing B, there be-
ing another indictment against him for
stabbing C. Held, that, on the trial
of the indictment for stabbing B, both
C and the surgeon may be asked as to
what kind of wound C received, with a
view of identifying the instrument used.
Rex v. Fursey, 6 Car.& P. 81. A pris-
oner was charged with breaking open a
house in the daytime and stealing there-
from coins of a particular denomina-
tion. After evidence tending to prove
the charge, proof that he had in his pos-
session a coin of another denumination,
which was in the house when it was
broken, was held to be admissible evi-
dence to bring home the breaking of
the house to him. Commonwealth v,
Hall, 3 Grat. 593. Where, upon the
trial of an indictment for arson, the

[348]

prisoner is shown to have had bank
notes similar to those stolen from the
house when the arson was committed,
and to have given contradictory accounts
of the mode in which he obtained them,
an instruction to the jury that these
contradictions were evidence to prove
he did not come honestly by them, is
uot erroneous. The State v. Gillis, 4
Dev. 606.

1 1 Greenl. Ev. § 83, 92.

2 McCoy v. Curtice, 9 Wend. 17;
Reg. v. Newton, 1 Car, & K. 469; Al
len v. The State, 21 Ga. 217; Rex».
Borrett, 6 Car, & P. 124; Melnstry
v. Tanner, 9 Johns. 135 ; United States
v, Amedy, 11’ Wheat. 392.

® Dean v. Gridley, 10 Wend. 254.

4 United States ». Phelps, 4 Day,
469 ; Reg. v. Carter, 1 Den. C. C. 65, 1
Cox C. C. 170, 1 Car. & K. 741; The
State v. Alling, 12 Ohio, 16.

5 1 Bishop Mar. & Div. § 450, 451.
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. § 497

raises. Where nearly all is presumption, as it is in the law
of evidence, we may well consider the specific presumptions
in connection with other specific points. Under the succeed-
ing sub-titles of this chapter, however, we shall really have but
a continuation of this discussion concerning presumptions.

II. The Burden of Proof in Criminal Causes.

§ 496. The proposition seems too plain ever to have admit-
ted of doubt, that, in a criminal’ cause, — in every criminal
cause, for whatever particular offence, — it is for the prose-
euting power to prove everything alleged against the de-
fendant ; unless the latter relieves the evidence at a given
point by a record admission, or, what is the same thing,
waives in some legal way his, right to demand such proof.
And it is believed,,that, though there are in the books cases
and dicta which cast some discredit on this proposition as
thus broadly stated, or at least appear at the first impression
to limit it somewhat, it is, in its broadest sense, as everywhere
applied, the true law; though, should it be thus accepted, and
not at the same time understood, it would, like all other mis-
apprehended truths, practically mislead.

§ 497. One source of error on this subject has been, that
oftentimes there has appeared to be, in the judicial mind, a
confusion of ideas as to what is meant by the phrase burden
of proof. A party may be said to have the burden of proof,
when, by the rules of law applicable to the case, it devolves
on him to sustain the matter in issue by the production of
evidence, on mere default of which the decision goes in favor
of the other party, who, in turn, produced no evidence, be-
cause on him did not rest the burden of proof. Now, the
proposition, that in this sense the burden of proof must al-
ways be on the prosecuting power, results from the familiar
maxim, that every man is to be presumed innocent until he
is proved to be guilty; and, in its general terms, it is sus-
tained by the authorities.? This general statement is some-

1 See, in connection with this sub- 312; Commonwealth v. Kimball, 24
title, post, § 533, 534. Pick. 866; Hopper v. The State, 19

2 United States v. Gooding, 12 Wheat. Ark. 143; People v. Marks, 4 Parker
460, 471; The State v. Flye, 26 Maine, C. C. 153.

VOL. I. 30 [849]
* § 499 THE EVIDENCE. [BooK Iv.

times reduced to the minuter form, namely, that every mate-
rial fact necessary to constitute the crime in question must
be averred in the indictment, and then proved by the pros-
ecuting power. Thus, where it was alleged that the defend-
ant did carry, convey, and conceal a slave, without the own-
er’s written consent, with intent he should escape beyond the
limits of the State, the court required the prosecutor to prove
the absence of such written consent.1 But even on a point
like the one last mentioned the authorities are not quite uni-
form.”

§ 498. It is evident, that, if we undertake: to go minutely
here into the doctrine of the burden of proof, as it rests on
the authorities, and is complicated with the almost infinitely
varying facts of cases, we shall occupy space which cannot be
spared from other discussions with matter which will better
be treated of in the author’s subsequent volumes, under the
general title of Evidence. What the reader is particularly
requested to bear in his mind is the distinction between the
burden of proof and the proof by presumptions. The law
may, under certain circumstances, presume a fact which it
devolves on a particular party to prove; and then the fact is
proved by the presumption itself, the same as another fact is
proved by the testimony of a witness ; but the presumption
does not shift the burden of proof, any more than does the
testimony. -

Ill. The Distinction between Circumstantial and Direct
Evidence.

§ 499. For reasons which have already appeared in this
chapter, it will not be wise for us to enter here into a minute
consideration of the doctrine of circumstantial evidence.
Circumstantial evidence is a species of presumptive evi-
dence ; and it consists in this, that, when there is no satis-
factory evidence of the direct fact, certain facts which are as-

1 The State v. Woodly, 2 Jones, N. The State, 7 Wis. 670; Haskill v Com-
C. 276. monwealth, 3 B. Monr. 342; The State
2 See, among other cases, Farrall v. v. Morrison, 3 Dev. 299; Wheat v. The

The State, 32 Ala. 557; The State v. State, 6 Misso. 455; Rex v. Rogers, 2
Evans, 5 Jones, N. C. 250; Mehanv. Camp. 654.

[350]
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. § 500

sumed to have stood around or been attendant on the direct
fact are proved, from the existence of which the direct fact is
to be presumed or inferred. It is a kind of evidence not pe-
culiar to the criminal law, therefore not requiring a special
discussion in a criminal law book.

§ 500. There is, however, one point of special importance
in this department of our juridical system. It is laid down
in some of the books, that, in order to convict a prisoner of a
crime by circumstantial evidence, the prosecutor must prove
by direct evidence the particular part of the case which is
technically known as the corpus delicti. Thus, in the fourth
London edition of Starkie on Evidence, the law on this sub-
ject is stated as follows: “‘ The coincidence of circumstances
tending to indicate guilt, however strong and numerous they
may be, avails nothing unless the corpus delicti, the fact that
the crime has been actually perpetrated, be first established.
So long as the least doubt exists as to the act, there can be
no certainty as to the criminal agent. Hence, upon charges
of homicide, it is an established rule, that the accused shall
not be convicted unless the death be first distinctly proved,
either by direct evidence of the fact, or by inspection of the
body; a rule warranted by melancholy experience of the
conviction and execution of supposed offenders, charged with
the murder of persons who survived their alleged murderers.
....So Lord Hale recommends that no prisoner shall be
convicted of larceny in stealing the goods of a person un-
known, unless the fact of the robbery be previously proved.
The same principle requires, that, upon a charge of homicide,
even when the body has been found, and although indications
of a violent.death be manifest, that it shall still be fully and
satisfactorily proved that the death was neither occasioned by
natural causes, by accident, nor by the act of the deceased
himself.” But this doctrine is rather one of caution and
sound judgment than of absolute law, according to what ap-
pears to be the better and later English authority.? For ex-
ample, a prisoner was convicted of larceny under the follow-
ing circumstances, and, on a case reserved, the conviction was

1 Stark. Ev. 4th Lond. ed. 862, 863. 21 Taylor Ev. 3d ed. § 122.
[351]
§ 501 THE EVIDENCE. [BOOK Iv.

held to be good: He was seen coming out of the lower room
of a warehouse, in an upper story of which a quantity of pep-
per was deposited, some in bags and some loose on the floor.
Being accosted with “I think there is something wrong about
you,” he replied, “I hope you will not be hard with me,” and
threw out of his pocket. some pepper of the like deseription
with that in the warehouse; but the witness could testify
neither to its identity nor to the fact of any pepper having
been taken away or missed. Here there was plainly no cor-
pus delicti directly proved ; the existence of a crime and of
guilt in the defendant stood together inseparable on one foun-
dation of circumstantial evidence. Said Maule, J.: “Ifa
man go into the London Docks sober, without means of get-
ting drunk, and comes out of one of the cellars very drunk,
wherein are a million gallons of wine, I think that would be
reasonable evidence that he had stolen some of the wine in
the cellar, though you could not prove that any wine was
stolen or any wine was missed.” 4

§ 501. Having thus seen, that, in England, this rule is one
of mere discretion and of caution, not of law, — excellent
sometimes as a hint to a jury, or even to a court sitting to re-
vise the work of a jury, — we should be happy could we find
the American authorities in a condition as satisfactory. But
in this country, to some extent, the rule of caution has been
accepted as the rule of the law; and it has been by some
courts held, that neither circumstantial proof of the offence,
nor proof by the confessions of the defendant, can be accepted
as satisfactory in law, unless, besides this, there is direct evi-
dence of the corpus delicti.2 The reader will see, by consult-

1 Reg. ». Burton, Dears. 282, 284. “ Ribton. But the principle would

In the course of this case, the following
dialogue occurs :

“ Ribton (the prisoner’s counsel). The
corpus delicti must be proved.

“ Maule, J. Where is the rule that the
corpus delicti must be expressly proved ?

“ Ribton. In Lord Hale it is so laid
down.

“ Maule, J. Only as a caution in
cases of murder. He does not say it is
to be observed in every case.

[352]

be the same in every case, and was
adopted by Lord Stowell in Evans ».
Evans, 1 Hag. Cou. 35, 79. There is
also the case of Dickson »v. Evans, 6 T.
R. 57,58. He would also refer to Star-
kie on Evidence, 862.

“ Jervis, C. J. We are all of opin-
ion that there is nothing in the objec-
tion.”

2 As to the circumstantial evidence. In
New York it was held by the majority
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF.

§ 501

ing the note, that our courts have not all gone quite so far ;

still the tendency is very strong in this direction.

of the court, Roosevelt, J. dissenting,
that, to warrant a conviction for murder,
the death must be proved directly in
some way, either by the finding and
identification of the corpse, or by proof
of criminal violence sufficient to pro-
duce death, and exerted in such a man-
ner as to account for the disappearance
of the body. Also, that the corpus de-
lictt in murder has two components,
death as the result, and the criminal
agency of another as the means. It is
only when there is direct proof of the
one that the other can be established by
circumstantial evidence. In pronounc-
ing the opinion in this case, Johnson,
C. J. referred, for the foundation of the
rule, to 2 Hale P. C. 290, where this
learned person says: “I would never
convict any person of murder or man-
slaughter unless the fact were proved to
be done, or at least the body found dead,
for the sake of two cases,—one men-
tioned in my Lord @oke’s P. C. c. 104,
p. 232, a Warwickshire case ; another,
that happened in my remembrance, in
Staffordshire, where A was long mis-
sing, and upon strong presumptions B
was supposed to have murdered him,
and to have consumed him to ashes in
an oven, that he should not be found ;
whereupon B was indicted for murder,
and convicted and executed ; and, with-
in one year after, A returned, being in-
deed sent beyond sea by B against his
will; and so, though B justly deserved
death, yet he was really not guilty of
that offence for which he suffered.” He
also referred to Rex v. Hindmarsh, 2
Leach, 4th ed. 569; 4 Bl. Com. 358 ;
Reg. v. Hopkins, 8 Car. & P. 591 ; Peo-
ple v. Videto, 1 Parker C. C. 603, 609 ;
People v. Wilson, 3 Parker, C. C. 199,
207 ; Tawell’s case, Wills Cir. Ev. 3d
ed. 181, and proceeded: “ These are
the cases in which, the rule contended
for by the defendant has been recognized
as the clearly acknowledged law regu-

30 *

If we look

lating the production of evidence in
cases of homicide. No case is to be
found which has been determined the
other way. That no more reported
cases contain the rule is to be account-
ed for on the ground, that the doctrine
has been universally acted on and ac-
quiesced in, while it is equally certain
that any case departing from the rule
would not have escaped observation ”
Ruloff v. People, 18 N. Y. 179, 189.
The reader will please note here, in pass-
ing, that there does not appear to be
any difference in pfinciple, or even in
the authorities, as respects this question,
between felonious homicide and larceny.
Thus, on the very page from which the
learned judge quotes the opinion of
Lord Hale, we have the following, in
which he speaks of the one offence in
the same terms as the other: “I would
never convict a person for stealing the
goods cujusdam ignoti merely because he
would not give an account how he came
by them, unless there were due proof
made that a felony was committed of
these goods.” 2 Hale P. C. 290. It
will be observed also, that the English
cases cited by the New York judge were
both of an earlier date and inferior au-
thority to the one cited and quoted from
in our last section, according to which
the English court had a different view
from the American, as to what was the
English law. According to a North
Carolina decision, the rule which seems
at one time to have prevailed in Eng-
land, “‘ that, upon charges of homicide,
the accused shall not be convicted un-
less the death be first distinctly proved,
either by direct evidence of the fact, or
by inspection of the body,” is not to be
accepted as of universal application ;
but, where the identity of the body is
completely destroyed by fire or other
means, the corpus delicti, as well as other
parts of the case, may be proved by
presumptive or circumstantial evidence,

[853]
§ 501

THE EVIDENCE.

[BOOK Iv.

at the matter as one of legal principle, we can hardly fail to
be convinced, that, while the corpus delicti is a part of the

The State v. Williams, 7 Jones, N. C.
446. In Tennessee, conduct exhibit-
ing satisfactory indications of guilt,
is not sufficient to sustain a conviction,
unless there be also satisfactory evidence
that a crime has been committed; as,
in case of alleged larceny, that the prop-
erty has been feloniously taken and car-
ried away. So itseems to have been held
in a case of horse-stealing; but Reese,
J. made some observations which show,
that the doctrine announced had a spe-
cial and peculiarly appropriate connec-
tion with the particular facts of the case.
Thus : ‘ These circumstances might all
have occurred, if the horse had been
fraudulently converted or forcibly seized
by the.prisoner, or if he had committed
some crime unconnected with the pos-
session of the horse, the knowledge of
which he feared might have reached the
public.” Tyner v. The State, 5 Humph.
383, 384. So in North Carolina, where
there was no evidence of any larceny
having been committed, it was held not
to be evidence to be left to the jury,
that the party charged was in a room
alone with one asleep on a bed, in the
day-time, with money loose in his vest
pocket. Burton v.’ March, 6 Jones, N.
C. 409. And see Phillips v. The State,
29 Ga. 105. In a Vermont case, which
was one of robbery, it seems to have
been laid down that the corpus delicti
may be proved by circumstantial evi-
dence ; yet that there is a difference be-
tween this part of the case, and the part
which connects the prisoner with the al-
ready proved offence. And because the
court below had blended improperly
these two things, in the conduct of the
trial, where only circumstantial evidence
was introduced, its proceedings were re-
versed. Said Redfield, C. J.: “ The
court, even when specially requested,
expressly declined to instruct the jury
in regard to any separation between the
circumstances which tended to prove the

[354]

corpus delicti and those which went to
identify the guilty party. This was cer-
tainly important and usual in all crim-
inal trials where there is any doubt of
the commission of the crime alleged.

. . And the jury were not told,
what the eases all require, that, when
the corpus delicti is attempted to be
shown by circumstantial evidence, it
must be so established as to positively
exclude all uncertainty or doubt from
the minds of the jury. Not that each
particular circumstance must be of this
conclusive character, but all combined:
must produce the same degree of cer-
tainty as positive proof.” The State
v. Davidson, 30 Vt. 377, 385, 386.

2. As to the evidence of confessions.
Extrajudicial confessions of a prisoner
are not sufficient to warrant a comnvic-
tion, without proof aliunde of the cor-
pus delicti. Brown v. The State, 32
Missis. 433. Evidence of confessions
alone, unsupportel by corroborating
facts and circumstances, is not sufficient
to convict ; there must be proof aliunde
of the corpus delict’, though it: need not
be conclusive. The words of Nelson,
C. J. were: “Full proof of the body
of the crime, the corpus delicti, inde-
pendently of the confession, is not re-
quired by any of the cases ; and, in many
of them, slight corroborating facts were
held sufficient.” People v. Badgley,
16 Wend. 53, 59. An extrajudicial
confession, with extrinsic circumstan-
tial evidence, satisfying the minds of a
jury beyond a reasonable doubt that the’
crime has been committed, will warrant
a capital conviction, although the dead
body has not been discovered and seen,
so that its existence and identity can be
testified to by an eye-witness. Said
Scott, J.: “ We do not deem it neces-
sary to enter into an examination. of
the abstract question, whether, when
the only evidence of the fact that a
crime has been committed, is contained
CHAP. EXIX.] PRESUMPTIONS AND BURDEN OF PROOF.

§ 501

case which should always receive careful attention, and no
man should be convicted until it is in some way made clear
that a crime has been committed, yet there can be no one
kind of evidence to be always demanded in proof of this fact

any more than of any other.

If the defendant should not be

convicted when there has been no crime, so equally should
he not be when he has not committed the crime, though
somebody has; the one proposition is as important to be
maintained as the other; yet neither should be put forward

in the confession of the party charged
with having committed the crime, he
can be convicted on such « confession
alone, without any extrinsic corrobora-
tive circumstances. We term the ques-
tion abstract, because such a case will
rarely happen. The case of the pris-
oner is not of this class. Although the
dead body has not been found, and al-
though uo witness swore that he saw
the perpetration of the murder, yet the
circumstances extrinsic to the confes-
sion, and established by other evidence,
are so strong that they cannot fail to
satisfy any unbiassed mind that the ac-
cused is guilty of the crime of which
he has been convicted. We consider
the true rule, as deduced from the. cur-
rent of authorities, to be, that an extra-
judicial confession, with extrinsic cir-
cumstantial evidence satisfying the
minds of a jury beyond a reasonable
doubt that the crime has been commit-
ted, will warrant a conviction, although
the dead body has not been discovered
and seen, so that its existence and iden-
tity can be testified to by an eye-wit-
ness.” The State v. Lamb, 28 Misso.
218, 231, 232. In a prosecution for ar-
son, the corpus delicti is the burning of
the house ; and, when this is establish-

ed by other evidence, the confessions of

the accused are competent to show that
the burning was done by him criminal-
ly. Upon this whole subject Handy,
J. observed : “ The rule with regard to
proof of the corpus delicti, apart from
the mere confessions of the accused,
proceeds upon the reason, that the gen-

eral fact, without which there could be
no guilt, either in the accused or in any
one else, must be established before
any one could be gonvicted of the per-
petration of the alleged criminal act:
which caused it: as, in cases of hom-
icide, the death must be shown; in lar-
ceny, it must be proved that the goods
were lost by the owner ; and, in arson;
that the house had been burned ;. for
otherwise the accused might be convict-
ed of murder when the person alleged
to be murdered was alive ;-or, of larce-
ny, when the owner had not lost the
goods ; or, of arson, when the house
was not burned. But when the general
fact is proved, the foundation is laid ;
and it is competent to show by any le-
gal and sufficient evidence, how and by
whom the act was committed, and that
it was done criminally.” Sam. v. The
State, 33 Missis, 347, 352. See also
People v. Henessey, 15 Wend. 147, 152;
The State v. Slack, 1 Bailey, 330; Ca-
rey v. The State, 7 Humph. 499. The
rule laid down in some of the books,
that there can be no conviction of a
crime on confession alone, without other
proof of the corpus delicti, is not appli-
cable in the lower grades.of crime, such
as the unlicensed selling of intoxicating
liquor. The State v. Gilbert, 36 Vt.
145. Perhaps the insufficiency: of the
confession, if we accept this doctrine,
may stand on a different ground from
that of the circumstantial evidence. This
class of cases, however, will shed light
on the other. And see 1 Greenl. Ev.

§ 217.
355]
§ 508 THE EVIDENCE. [BOOK IV.

to exclude evidence which in reason ought to be convincing to
the understanding of the jury. ‘

IV. The Evidence in Civil and Criminal Causes, in the
foregoing respects, compared.

§ 502. A learned English judge once observed: “It has
been solemnly decided that there is no difference between the
rules of evidence in civil and in criminal cases. If the rules
of evidence prescribe the best course to get at truth, they must
be and are the same in all cases, and in all civilized coun-
tries.’ 1 The truth of this proposition is what renders it in-
expedient to discuss the general rules of evidence in connec-
tion with a treatise on a single branch of the law ; like, for
instance, the present work. There are, however, some differ-
ences between the civil and criminal departments as respects
the evidence ; and those differences are, in these pages, no-
ticed in their proper places. One matter relates to the quan-
tity, so to speak, of the evidence which the jury are to require
before finding for or against the party, and this matter will be
discussed further on in the present chapter.

§ 503. Meanwhile let us bear in our minds what is said by
a learned Alabama judge, as follows: “In a criminal case,
the establishment of a prima facie case does not, as in a civil
case, take away from the defendant the presumption of inno-
cence, or change the burden of proof. A solid reason for the
distinction is, the well-known difference in the measure of
proof in the two classes of cases. In a civil case the plaintiff
is not required to prove, beyond all reasonable doubt, the facts
on which he relies for a recovery ; and, therefore, when he
establishes a prima facie case, the burden of proof is thereby
shifted, and the prima facie case so established entitles him
to recover unless it is destroyed by proof from the other par-
ty. But in a criminal case, the State is required to prove,
beyond all reasonable doubt, the facts which constitute the
offence. The establishment, therefore, of a prima facie case

1 Best, J. in Rex v. Burdett, 4B. & Bishop Mar. & Div. § 441. And see
Ald. 95, 122. To the like effect, see Lewis v. Lewis, 9 Ind. 105,
Reg. v. Murphy, 8 Car. & P. 297; 1

[356]
CHAP. XXIX.] PRESUMPTIONS AND BURDEN OF PROOF. §*503

merely, does not take away the presumption of innocence
from the defendant, but leaves that presumption to operate
in connection with, or in aid of, any proofs offered by him to
rebut or impair the prima facie case thus made out by the
State.” 3

1 Rice, C. J. in Ogletree v. The State, 28 Ala, 693, 702.
[857]
a
§ 506 THE EVIDENCE. [BooK Iv.

CHAPTER XXX.

THE WITNESSES PRESENT IN COURT.

§ 504. Tue subject of this chapter so connects itself with
the like subject in the law of evidence in civil causes, that it
will be best not to discuss it at large here. A few points,
however, should be considered.

§ 505. Accomplices and Approvers. Blackstone says: 1
“ There is a species of confession, which we read much of in
our ancient books,.... called approvement. And that is
when a person, indicted of treason or felony, and arraigned
for the same, doth confess the fact before plea pleaded ; and
appeals or accuses others, his accomplices, in the same crime,
in order to obtain his pardon. In this case he is called an
approver or prover, probator, and the party appealed or ac-
cused is called the appellee. Such approvement can only be
in capital offences ; and it is, as it were, equivalent to an in-
dictment, since the appellee is equally called upon to answer
it; and, if he hath no reasonable and legal exceptions to make
to the person of the approver, which indeed are very numer-
ous, he must put himself upon his trial, either by battle, or
by the country; and, if vanquished or found guilty, must
suffer the judgment of the law, and the approver shall have
his pardon ex debito justitie. On the other hand, if the
appellee be conqueror, or acquitted by the jury, the approver
shall receive judgment to be hanged, upon his own confession
of the indictment ; for the condition of his pardon has failed,
namely, the conviction of some other person, and therefore
his conviction remains absolute.

§ 506. “ But it is purely in the discretion of the court to
permit-the approver thus to appeal, or not: and, in fact, this
course of admitting approvements hath been long disused ;

1 4 Bl.-Com. 330, 331.
[358]
CHAP. XXx.] THE WITNESSES IN COURT. § 506

for the truth was, as Sir Matthew Hale observes, that more
mischief hath arisen to good men by these kind of approve-
ments, upon false and malicious accusations of desperate vil-
lains, than benefit to the public by the discovery and convic-
tion of real offenders. -And therefore, in the times when
such appeals were more frequently admitted, great strictness
and nicety were held therein ; though, since their discontin-
uance, the doctrine of approvements is become a matter of
more curiosity than use. I shall only observe, that all the
good, whatever it be, that can be expected from this method
of approvement, is fully provided for in the cases of coining,
robbery, burglary, house-breaking, horse-stealing, and lar-
ceny to the value of five shillings from shops, warehouses,
stables, and coach-houses, by statutes 4 & 5 Will. & M. c. 8;
6 & 7 Will. 8,c.17; 10 & 11 Will. 3,c. 23; and 5 Anne,
c. 81; which enact, that, if any such offender, being out of
prison, shall discover two or more persons, who have commit-
ted the like offences, so as they may be convicted thereof; he
shall in case of burglary or house-breaking receive a reward
of 40/., and in general be entitled to a pardon of all capital
offences, excepting only murder and treason; and of them
also in the case of coining. And if any such person, having
feloniously stolen any lead, iron, or other metal, shall discov-
er and convict two offenders of having illegally bought or re-
ceived the same, he shall ‘by virtue of statute 29 Geo. 2, c.
30, be pardoned for all such felonies committed before such
discovery. It hath also been usual for the justices of the
peace, by whom any persons charged with felony are commit-
ted to jail, to admit some one of their accomplices to become
a witness (or, as is generally termed, king’s evidence) against
his fellows ; upon an implied confidence, which the judges of
jail delivery have usually countenanced and adopted, that, if
such accomplice makes a full and complete discovery of that
and of all other felonies to which he is examined by the mag-
istrate, and afterwards gives his evidence without prevarica-
tion or fraud, he shall not himself be prosecuted for that or
any other previous offence of the same degree.’”’

1 And see Rex v. Rudd, Cowp. 331. In this case, which was decided in 1775,
[359]
§ 508 THE EVIDENCE. [BOOK Iv.

§ 507. The English statutes thus mentioned by Blackstone
are of dates too recent to be accepted as parts of our common
law in all the States of this country, and in England they
have been repealed. They may have contributed something
to give shape to what is now the common-law practice in both
countries of admitting, in proper circumstances and under
proper cautions, accomplices to give evidence against their
associates in crime, under the implied understanding, that, if
they testify fairly and truly, they shall not be compelled to
suffer by reason of their own confessed guilt. In England,
if “‘ the testimony of an accomplice is required to prove the
case before the grand jury, and he is in custody,” the prac-
tice “is for the counsel for the prosecution to- move that he
be allowed to go before the grand jury, pledging his own
opinion, after a perusal of the facts of the case, that the testi-
mony is essential.” ! In like manner, on a preliminary ex-
amination, the committing magistrate judges whether or not
the testimony of the accomplice shall be accepted. Yet on
the trial of the prisoner, “ it is not,” says Roscoe,? “ a matter
of course to admit an accomplice to give evidence, even
though his testimony has been received by the committing
magistrate, but an application to the court for the purpose
must be made The court usually considers, not only
whether the prisoners can be convicted without the evidence
of the accomplice, but also whether they can be convicted
with his evidence. If, therefore, there be sufficient evidence
to convict without his testimony, the court will refuse to al-
low him to be admitted as a witness. So, if there be no rea-
sonable probability of a conviction even with his evidence,
the court will refuse to admit him as a witness.”

§ 508. In the United States, where prosecutions are insti-
tuted and carried on by a public prosecutor, who acts direct-
ly for the government aud protects its interests, there is an

Lord Mansfield observed, that approve- 1 Roscoe Crim. Ev. 154; referring
ment “ still remains a part of the com- to 2 Stark. Ev. 2d ed. 11.

mon law, though, by long discontinu- ? Roscoe Crim. Ev. 4th Am. from 3d
ance, the practice of admitting persons Lond. ed. 153.

to be approvers is now grown into dis- 3 1 Phil. Ev. 8th ed, 28.

use.” p, 334.

[360]
CHAP. XXX.] THE WITNESSES IN COURT. § 508

evident propriety in considering it to be within the exclusive
discretion of this officer to determine whether or not an ac-
complice shall be permitted to become State’s evidence, as it is
sometimes expressed with us; and whether, if ‘he does, he is
afterward entitled to be no further prosecuted, by reason of
what is thus done. It is not easy for a writer to say what, in
fact, is the practice on this point in all the States; but it is
believed, that, in most of them, the prosecuting officer acts in
such cases upon his- own discretion, which is little, if at all,

controlled by the courts.

1 See, for instance, such cases as Kin-
chelow v. The State, 5 Humph. 9. In
an Oyer and Terminer case in New
York, it was considered to be a ques-
tion for the court to decide, on motion
of the prosecuting officer, whether dr
not to admit an accomplice; and, in
the particular instance, the court refus-
ed. Said Duer, J.: “So long as, by
the policy of the law, accomplices are
deemed competent witnesses against
their fellows, so long must a discretion
in regard to admitting them be vested
somewhere or other in the government.
It could not, consistently with the na-
ture of the power, or the course and
character of jndicial proceedings, be
committed to the chief executive mag-
istrate ; nor could it with propriety be
intrusted to the public prosecutor, or
any other inferior ministerial officer of
justice ; because, strictly speaking, it is
the exercise of a high judicial discre-
tion, and the reason for vesting it in the
court, rather than in the committing
magistrate, or even in the public pros-
ecutor, is, that the admission of the par-
ty as a witness amounts to a promise by
the court of a recommendation to mercy,
upon condition of his making a full and
fair disclosure of all the circumstances
of the crime.” People v. Whipple, 9
Cow. 707, 711, 712. Now it is plain
that this reasoning is satisfactory as ac-
counting for the English practice ; but,
in the United States, according to the
constitutions of a large part of the
States, there can be no pardon of an

VOL. I. 31

offence until the offender is convicted ;
or, if there could, it is not the course of
things with us for the judges to recom-
mend pardons as in England. There
the judges can practically procure a
pardon ; here they cannot. There, it
is the course for a pardon to be given
the testifying accomplice, at the proper
time; here, in most instances, the pros-
ecuting officer simply declines to insti-
tute criminal proceedings against him ;
or, if proceedings have been begun, he
simply discontinues them by a nol. pros.
or other proper means. Indeed, it is
not easy to see how, according to the
course of our practice, the judge can
well interfere in any way to regulate
such a matter, unless perhaps by refus-
ing to try a prisoner who had testified
as State’s evidence against another, if
it should appear that the prosecuting
officer was pursuing him in violation of
the express or implied understanding.
If a witness, on a trial, is introduced by
the prosecuting officer to testify to facts |
which he knows, and he.does not choose
to conceal his own participation in
them, he is a lawful witness, and no
one but the witness himself is entitled
to object to his criminating himself ;
and this is really all there is about be-
ing State’s evidence, except the under-
standing relative to the future protec-
tion of the witness ; and, with us, since
the power to act is complete in the
hands of the prosecuting officer, the
right to exercise the power should be
construed to be also in him.

[361]
§ 511 THE EVIDENCE. [BOOK Iv.

§ 509. In Virginia, contrary to the general American law,
there is or was a statute which provides, that, “ approvers shall
never be admitted in any case whatever.’ And the majority
of the court held, that therefore the English doctrines relating
to the admission of accomplices as witnesses had not become
incorporated into the common law of the State. Consequent-
ly, where a participant in a crime had voluntarily testified
against his associate, making fair and full disclosures, he was
held to have no right to demand a continuance of his. cause
until he could apply to the executive for a pardon.

§ 510. Ifa witness, who has become State’s evidence, tes-
tifies corruptly, or make8 only partial disclosures, he may
then, having failed to perform the condition on which he was
admitted, be proceeded against for his own crime ; but he is
not thus liable simply because of a failure by the jury to con-
vict his associates. “It rests,” said Lord Mansfield, “on
usage, and on the offender’s own good behavior, whether he
shall be prosecuted or not.” ?

§ 511. Lord Hale, writing of the usage of his own time,
says: “The party that is to be a witness is never indicted ;
because that doth much weaken and disparage his testimony,
but possibly not wholly take away his testimony.”® With
us, at the present day, it is not always deemed important, or
even wise, to veil before the jury the real case with this thin
gauze ; and often, perhaps usually in some of our States, the
accomplice who is to be a witness is indicted with the rest,
and pleads guilty before he takes the stand to testify. The
law on this point is as follows: If two persons are jointly in-
dicted, neither of the defendants can be a witness for or
against the other until the case is disposed of, either by the
conviction or acquittal of the defendant whose testimony is
to be used,* or bythe entry of a nol. pros. as to such defend-

1 Commonwealth v. Dabney, 1 Rob. shall be proceeded against for his own
Va. 696, offence. Rex v. Lee, Russ. & Ry. 361 ;
2 Rex v. Rudd, Cowp. 331; Moore’s Rex »v. Brunton, Russ. & Ry. 454.
case, 2 Lewin, 37. In the English prac- As to the American practice, see ante,
tice, it rests entirely in the discretion of § 508 and note.
the judges whether an accomplice, after 3 1 Hale P. C. 305.
he has testified against his associates, 4 Shay v. Commonwealth, 12 Casey,

[362]
CHAP. XXX.] THE WITNESSES IN COURT. § 512

ant.1 One method of procedure, therefore, when there is
pending such a joint indictment, and one of the defendants
is to be admitted as State’s evidence against the other, is to
let such defendant plead guilty, then, before sentence, he is
a competent witness ;? and, after the case of the other de-
fendant is disposed of, the prosecuting officer can enter a nol.
pros. upon the indictment as to the party who has been a wit-
ness, or cause it to be otherwise disposed of in such a way as
justice may demand.

§ 512. If the case against the accomplice has proceeded to
final sentence, and the offence is such as disqualifies for being
a witness, he is, of course, incompetent on the ground of in-
famy.® But in the interval between conviction‘ and sentence,
he is, as just observed, competent ; so also is he if he has not
been indicted with the rest ;5 and, even though on a former
occasion he has denied his guilt, he is still competent.6 Yet
under most circumstances it would be manifestly unsafe for
the jury to convict the prisoner on the sole testimony of an
accomplice, unsupported by other evidence. There is, how-
ever, no rule of absolute law on this point; and, if the jury
believe the accomplice, and find a verdict on his sole testimo-
ny, such verdict is not erroneous or bad in point of law.” As
matter of sound practice, however, the judges usually deem
it incumbent on themselves to caution the jury of the danger
of finding a verdict on such testimony, unless it is in some
way supported, either by direct evidence from an uncorrupted

6 Brown v. Commonwealth, 2 Leigh,
769.

7 Reg. v. Stubbs, Dears. 555, 7 Cox
C. C. 48, 33 Eng. L. & Eq. 551; Com-
miouwealth v. Price, 10 Gray, 472;

305; Baker v. United States, 1 Minn.
207 ; ‘The State v. Nash, 7 Jowa, 347 ;
The State v. Blannerhassett, Walk.
Missis. 7; People v. Bill, 10 Johns. 95.
But see The State v. Spencer, 15 Ind.

249; Rexv. Ryan, Jebb. 5.

1 uangncae 12 Mod. 40.

2 Commonwealth v. Smith, 12 Met.
288; Thornton v. The State, 25 Ga.
301. And see Allen v. The State, 10
Ohio State, 287.

8 Crim. Law, I. § 743-746.

* Crim. Law, I. § 361.

5 People v, Lohman, 2 Barb. 216.

Brown 7, Commonwealth, supra ; Rex
v. Jones, 2 Camp. 131; Coats ». Peo-
ple, 4 Parker C. C. 662; Allen v. The
State, 10 Ohio State, 287 ; ; Ulmer v.
The State, 14 Ind. 52; Rak v. Has-
tings, 7 Car. & P. 152; Rex. Attwood.
1 Leach, 4th ed. 464; Rex v. Durham,
1 Leach, 4th ed. 478 ; Rex v. Sheehan,
Jebb. 54; People v. Dyle, 21 N. Y. 578,
: [863]
§ 512

THE EVIDENCE.

[BOOK Iv.

source, or by matter which in some other way appears in the

particular case.?

1 Allen v. The State, supra. In one
of the latest of the English cases on
this subject, Jervis, C. J. said: ‘ Itis
not a rule of law that an accomplice
must be confirmed in order to render a
conviction valid ; and it is the duty of
the judge to tell the jury that they may,
if they please, act on the unconfirmed
testimony of an accomplice. It is a
rule of practice, and that only, and it is
usual in practice for the judge to ad-
vise the jury not to convict on the testi-
mony of an accomplice alone, and ju-
ries generally attend to the direction of
the judge, and require confirmation.
There is a further point in this case.
Where an accomplice speaks as to the
guilt of three prisoners, and is confirm-
ed as to two of them only, the jury
may, no doubt, if they please, act on
the evidence of the accomplice alone as
to the third prisoner; but it is proper
for the judge in such a case to advise
the jury thas it is. safer to require con-
firmation of the testimony of the accom-
plice as to the third prisoner, and not to
act upon his evidence alone ; for nothing
is so easy as for the accomplice, speak-
ing truly as to all the other facts of the
case, to put the third man in his own
place.” And Parke, B. added: “ There
has been a difference in opinion as to
what corroboration is requisite; but my
practice has always been to direct the
jury not to convict unless the evidence
of the accomplice be confirmed, not on-
ly as to the circumstances of the crime,
but also as to the identity of the pris-
oner.” Reg. v. Stubbs, supra, p. 557,
558, of the report in Den. And see
Rex v. Birkett, Russ. & Ry. 251; Rex
v. Wells, Moody & M. 326; Rex v,
Moores, 7 Car. & P. 270; Rex v. Daw-
ber, 3 Stark. 34. In one case it was
laid down by the presiding judge, that
the confirmation need not be to every
material point, but it must be such as
to convince the jury of the truth of the

[364]

testimony. Rex v Barnard, 1 Car. &
P. 87. In another case it was deemed
that the testimony of the wife of the
accomplice is not such evidence as the
jary ought to require in confirmation,
Rex v. Neal, 7 Car. & P. 168. On the
other hand it has been laid down, that
the testimony of the wife of an accom-
plice ought to be weighed in connection
with that of the husband in determin-
ing the credibility of the latter. Has-
kins v. People, 16 N. Y. 344. Under
some circumstances, the bare omission
of the prisoner to rebut or explain the
testimony of the accomplice, goes to its
confirmation, People v. Dyle, 21 N.
Y. 578. The testimony of one accom-
plice is not sufficient in absolute confir-
mation of another ; for it is not usual
to convict on the unaided testimony of
any number of accomplices. Rex v.
Noakes, 5 Car. & P. 326. On a charge
of stealing two sheep, an accomplice
stated that the prisoner himself stole
them; and, to confirm him, evidence
was given that a quantity of mutton
was found in the house in which the
prisoner resided, which corresponded
with parts of the stolen sheep. This
was held to be sufficient confirmation of
the accomplice to be left to the jury;
but, if the confirmation had merely gone
to the extent of confirming the accom-
plice as to a matter connected with him-
self only, it would not have been suffi-
cient. Reg. v. Birkett, 8 Car. & P. 732.
The evidence of an accomplice cannot
be corroborated by his statements made
at another time, unless it has been im-
peached. United States v. Wilson,
Bald. 78. The testimony of an accom-
plice must be corroborated by evidence
tending to connect the defendant with
the commission of the offence charged.
Upton v. The State, 5 Iowa, 465; Rex
v, Addis, 6 Car. & P. 388; Kelsey’s
case, 2 Lewin, 45, It must be on points’
material to the conviction, and to such
CHAP. XXX.] THE WITNESSES IN COURT. § 515

§ 518. In those circumstances in which an accomplice is a
competent witness against a prisoner, he is, of course, equally
so in the prisoner’s favor.!

§ 514. A State’s evidence, having undertaken to disclose
all he knows of the facts, ceases, therefore, to be protected by
the rule that a witness shall not be compelled to criminate
himself. It was in one case held, that, within this principle,
he might be cross-examined as to statements made by him to
counsel after he was charged with crime, and before he as-

sumed this his new position.?

§.515. A person to be technically an accomplice must, it
appears, sustain such a relation to the criminal act that he

an extent, as, upon the whole case, to
satisfy the jury, beyond a reasonable
doubt, of the guilt of the defendant.
The State v. Howard, 32 Vt. 380. Prov-
ing by other witnesses that a robbery
was in fact committed in the mode in
which an accomplice states it to have
been done, is not such confirmation of
him as is required to warrant a convic-
tion on his evidence. “Indeed,” said
the learned judge, ‘I think it is really
no confirmation at all, as every one will
give credit to a man who avows himself
a principal felon for at least knowing
how the felony was committed.” Rex
v. Webb, 6 Car. & P. 595. To the like
effect is Rex v. Wilkes, 7 Car. & P. 272.
The confirmation ought to be as to some
matter which goes to connect the pris-
oner with the transaction. Reg. ». Dyke,
8 Car. & P. 261; Reg. v. Farler, 8 Car.
& P. 106. Whatever weight is to be

given to the testimony of an accom.

plice, since it is for the consideration of
the jury, it is probably the better prac-
tice for the judge to submit it to them,
though it is unconfirmed, and not stop
the case or peremptorily order an ac-
quittal for want of the confirmation.
People v. Dyle, 21 N. ¥. 578. See
Rex v. Durham, 1 Leach, 4th ed,
478.

1 The State v. Spencer, 15 Ind. 249 ;
Strawhern v. The State, 37 Missis. 422.

31 *

2 The State v. Condry, 5 Jones, N. C.
418. Pearson, J. observed : “‘The rule
that communications between client
and attorney are confidential, and shall
not be disclosed, does not embrace with-
in its operation the question of evidence
presented by this case. The principle
upon which the rule is founded is this :
No man is required to criminate him-
self. The relation of attorney and cli-
ent has existed, and has been fostered,
as necessary to the due administration
of the law, in every civilized country.
And, in order to give full effect to the
benefit of this relation, and encourage
a free and full disclosure on the part of
the client, it was necessary to adopt the
rule, that, as he could not be called on
to criminate himself, so communications
made to his attorney should not be used
for that purpose... .. The principle
of the rule does not embrace this case ;
for the witness is an accomplice, who is
allowed to give evidence in favor of the
State, with the express understanding’
that he is to disclose his own guilt ; con-
sequently a rule which was adopted in
order to prevent a party from being
required to criminate himself, and to
avoid the danger of being criminated
by a communication made to his at-
torney, has no application.” p. 419,
420.

[865]
§ 515 THE EVIDENCE, [BOOK Iv.

could be indicted jointly with the others for the offence.!
For example, one who purchases intoxicating liquor of an-
other, in order to convict the latter of selling without a li-
cense, is not an accomplice.2 Yet where witnesses are so
connected with the offence or with the offender as to come
within the spirit of the rule by which juries are advised not
to convict on the uncorroborated testimony of an accomplice,
the judge will give the like caution, more or less pointedly,
according to the circumstances of the case. In the case, for
instance, of the witness who had purchased intoxicating lig-
uor, in order to convict the seller, the jury may well be cau-

tioned to receive the evidence with distrust.®

1 Commonwealth v. Wood, 11 Gray,
85, 93. ‘

2 Commonwealth v. Downing, 4
Gray, 29; Crim. Law. I. § 605, 687.
In Alabama it was held, Rice, C. J.
dissenting, that a participant in a game
of cards is an accomplice within the
statute which forbids a conviction on
the uncorroborated testimony of an ac-
complice. Davidson v. The State, 33
Ala. 350. And see English v. The
State, 35 Ala. 428; Strawhern v. The
State, 37 Missis. 422.

3 Commonwealth v. Downing, su-
pra. Still, in such a case, the cool
judgment of every ‘man teaches him,
that, whether the witness has acted dis-
cretely or not in putting himself in this
position, his testimony may be, and
sometimes is, of the most reliable kind.
The propriety of the witness’s conduct
is a matter quite distinct from the truth-
fulness of his declarations under oath.
A corrupt man may become a spy or
informer upon another for the sake of
some pecuniary gain; then, if it tallies
with his interest to produce u convic-
tion, his testimony is in the worst of
oder, and it alone should not ordinarily
be received as sufficient to convict.
On the other hand, a man from a high
sense of duty, may pursue what other
men deem a mistaken course ; yet the
testimony of such a man is, in truth,

[366]

And to give

in the fullest sense reliable; for the
impulse which prompted him to act, at
the call of his convictions, contrary to
the convictions of his neighbors, attests
his honesty ; and an error in ethics does
not argue any error in the cognizance
of tangible things. It was laid down
in Illinois, that spies and informers are
not necessarily odious witnesses, whose
testimony is to be taken with distrust ;
and, in respect to the particular case,
in which the witnesses had bought and
drank to convict the seller, and then had
testified against him, Scates, C. J. ob-
served : “ However indiscreet it may
have been, to volunteer to witness the
commission, and become evidence to
violations of the laws, incurring thus
the hatred and persecution of the party
and his supporters, yet surely no one
can justly denominate such an one
either an informer ora spy. A particeps
criminis may inform, a spy may secret-
ly intrude upon and betray the confi-
dence of one who trusts to a falsely as-
sumed character. We do not perceive
the first trait of resemblance between
the two characters, and the conduct of
these witnesses. They may have act-
ed with more zeal than knowledge, but
we should regret to learn that men
are to be denominated as informers and
spies who may voluntarily or involun-
tarily denounce and prosecute offenders
CHAP. XXx.] THE WITNESSES IN COURT. § 516

evidence against a prisoner under the hope that the convic-
tion of such prisoner will tend to procure the pardon of a
husband convict, goes to the credit, though not the compe-
tency, of the witness.! On the other hand, a learned English
judge deemed, that, though all who are present sanctioning a
prize fight are, in point of law, guilty of manslaughter as
principals in the second degree, if one of the combatants is
killed ; yet, when called as witnesses for the prosecution in
such a case, they are not of the general class of accomplices,
whose evidence, to convict, needs to be confirmed.? The re-
sult is, that this class of questions depends more upon the
good sense of the judge and jury, to be exercised in the par-
ticular case, with respect to its special facts and circumstan-
ces, than upon absolute rules of law.®

§ 516. Exclusion of the Witnesses from Court. The judge
who presides during any judicial proceeding has the power,
within limits not to be described in a single sentence, so to
regulate its conduct as to bring about those results which
shall most nearly approximate the absolute justice of the
law. In pursuance of this doctrine, it has always been
deemed competent for the court to see that the witnesses, in a
criminal cause, are examined as much as possible separate
and apart. This is done by ordering, on motion of either
party, the exclusion of the witnesses, whether called on the
one side or on the other, from the court room during the ex-
aminations, until they shall have respectively given in their
testimony.* This separation of the witnesses is not a thing
of absolute right, to be demanded, for instance by the pris-

against the law, order, and morality of
society.” And he added : “Spies and
informers may be more or less odious,
as matter of fact, as the motive by
which they are prompted is patriotic or
corrupt.” St. Charles v. O’Mailey, 18
Tll. 407, 412. I cannot but think that
instances have occurred in which judge
and jury have alike experienced a tem-
porary oblivion of the fact, that the par-
ty, and not the witness, is on trial, and
the conduct of the witness is to be re-

garded no further than as concerns the
question whether his testimony is true.

1 Rex v. Rudd, 1 Leach, 4th ed. 115,
127.

2 Rex v. Hargrave, 5 Car. & P. 170.

3 And see, on this subject, Roscoe
Crim, Ev. 153 et seq.; 1 Greenl. Ev.
§ 379 et seq.; 1 Chit. Crim. Law, 503;
2 Hawk. P. C. c. 46, § 89 et seq.

* Johnson’s case, Foster, 46, 47; 1
Chit. Crim. Law, 618. ;

[867]
§ 518 THE EVIDENCE. [BOOK Iv.

oner;! yet it is a matter pretty much of course to grant the
motion for the separation, whenever and by whichever party
made.”

§ 517. The order for the removal of witnesses from the
court, being a matter within the discretion of the presiding
judge, may be put into such form as to meet the particular
demands of justice and convenience in the individual case.
If, for example, the assistance of some of the witnesses is re-
quired in conducting the prosecution or defence, these may
be permitted to remain while the rest are excluded. So the
witnesses who are summoned merely as experts may be per-
mitted to remain in the court-room while the rest are sent
away. And the order may forbid the witnesses who have:
been examined, from holding conversation with the other wit-
nesses previous to the examination of the latter.5 In one
case, ‘ the prisoner moved that the officer having charge: of
the witnesses so excluded, should be directed to prohibit:
them from reading the newspaper accounts of the evidence in’
the case ; but. this the court declined to do.” ®

§ 518. Ifa witness fails to obey the order of exclusion; on,
having yielded obedience at first, returns contrary to the or-
der ; it is within the discretion of the court to admit the tes-
timony, subject to the animadversion of counsel concerning
the witness’s conduct ; or to exclude it altogether. A learned
English judge once observed: ‘I will always, in a criminal:
case, reject a witness remaining in court after all the wit-
nesses on both sides have been ordered to leave it.” 7 Still,.
in England, it rests in the circumstances of the particular
case whether such a witness shall be examined ; and, where
there was an order excluding all the witnesses, “‘ on the usual
notice that they would not be examined if they remained,”
but one of the witnesses, having retired, was called in to ex-

1 Vanghan’s case, Holt, 689; The * Commonwealth v. Hersey, 2 Allen,’
State v. Fitzsimmons, 30 Misso. 236; 173, 176.
Thomas v. The State, 27 Ga, 287, 5 Pleasant v. The State, 15 Ark. 624.
2 Reg. v. Murphy, 8 Car. & P. 297; ® Commonwealth v. Hersey, supra,
Johnson v. The State, 14 Ga. 55; The p. 176.
State v. Zellers, 2 Halst. 220. 7 Park, J. in Rex v. Wylde, 6 Car:
8 Thomas v. The State, 27 Ga.287. & P. 380.

[368]
CHAP. XXx.] THE WITNESSES IN COURT. § 519

hibit a plan of the premises, and he did not go out again, the
court still permitted him to testify on behalf of the defend-
ant. In this country also, it is within the discretion of the
court to admit the witness under the like circumstances.?
But if, for instance, the witness is detailed by the prisoner to
hear the testimony of the rest ;3 or if, in any other way, he
violates the order through the procurement or assent of the
prisoner ; it is in the highest degree just to deprive the pris-
oner of his testimony. On the other hand, if the misconduct
is that only of the witness, and neither the prisoner nor his
counsel had any participation directly or indirectly in it, we
may not easily see on what principle either of law or of ab-
stract justice the judge could set such a witness wholly aside,
any more than any other witness who had behaved unwor-
thily, or had subjected himself to punishment for a contempt
of any other order of the court.

§ 519. But it is necessary to close the discussions of this
chapter here. The remaining matter, which might seem to
belong in this place, isso much better disposed of in a general
work on evidence, that our regrets should not linger around
what would otherwise be too abrupt a termination of this
branch of our subject.

1 Rex v. Colley, Moody & M. 329; 99; The State v. Fitzsimmons 30,
s.P. Rex v. Brown, 4 Car. & P. 588, Misso. 236; Pleasant v. The State, 15
Bote. Ark. 624.

2 Laughlin v. The State, 18 Ohio, 8 Jackson v. The State, 14 Ind. 327.

[369]
§ 521 THE EVIDENCE. [BOOK tv.

CHAPTER XXXI.

THE TESTIMONY OF PERSONS ABSENT OR DECEASED.

§ 520. Iv is probably the true construction of the ancient
common law, that, on the trial of a prisoner accused of any
crime whatever, the witnesses against him must be produced
in open court, meeting him face to face, and the opportunity
given him to cross-examine them there’ If, therefore, a
witness could not be so produced, his testimony could not be
had, unless it was admitted in some other form by consent.

§ 521. In this condition of the law, Stat. 1&2 Phil. & M.
ce. 18, a. pv. 1554, entitled “An Act touching Bailment of
Persons” was passed. It provided, in § 4, that justices of
the peace, “ when any such prisoner is brought before them
for any manslaughter or felony, before any bailment or main-
prise, shall take the examination of the said prisoner, and
information of them that bring him, of the fact and circum-
stances thereof; and the same, or as much thereof as shall be
material thereof to prove the felony, shall put in writing, be-
fore they make the same bailment; which said examination,
together with the said bailment, the said justices shall certify
at the next general jail delivery to be holden within the lim-
its of their commission.” And in § 5 it provided, “that every
coroner, upon any inquisition before him found, whereby any
person or persons shall be indicted for murder or manslaugh-
ter, or as accessory or accessories to the same before the mur-
der or manslaughter committed, shall put in writing the effect

12 Inst. 49; 2 Hawk. P. C. c. 46, the passing of the Revised Statutes, it
§ 23; 1 Chit. Crim. Law, 585; Rex v. was a well-established rule of evidence
Paine, 1 Salk. 281, Comb. 358 ,5 Mod. in criminal cases, that all testimony, on
163, 1 Ld. Raym. 729, Holt, 294; Peo- both sides, must be viva voce at the trial,
ple v. Restell, 3 Hill, N. Y. 289; Com- unless admitted otherwise by express
monwealth v. Ricketson, 5 Met. 412, consent.” p. 427, 428.
427, Shaw, C. J. observing: “ Before

[370]
OHAP. XXXI.] ABSENT OR DECEASED WITNESS. § 522

of the evidence given to the jury before him, being material ;
and, &c., shall certify,’ &c. In the next following year,
Stat. 2 & 3 Phil. & M. c. 10, extended these provisions also
‘“*to such persons as shall be brought before any justice of
peace for manslaughter or felony, and by such justice shall be
committed to ward for the suspicion of such manslaughter or
felony, and not bailed.”

§ 522. These statutes, it is seen, are early enough in date
to be common law with us; and they are regarded as such
in Pennsylvania,! in Maryland,? and probably in the other
States generally. In England they appear to have remained
unchanged until 1826, when, by Stat. 7 Geo. 4, c. 64, § 2-5,
their provisions were slightly but not essentially modified,
and they were extended to include persons charged with
“ misdemeanor, or suspicion thereof,” in addition to felony.
At present, the matter in England is governed by Stat. 11 &
12 Vict. c. 42, which relates to all indictable offences, and
provides, in § 17, that, “if, upon the trial, &., it shall be
proved by the oath or affirmation of any credible witness,
that any person whose deposition shall have been taken as
aforesaid is dead, or is so ill as not to be able to travel,? and
if also it be proved that such deposition was taken in the
presence of the person so accused, and that he or his coun-
sel or attorney had a full opportunity of cross-examining the
witness, then, if such deposition purport to be signed by the
justice by or before whom the same purports to have been
taken, it shall be lawful to read such deposition as evidence
in such prosecution, without further proof thereof, unless it
shall be proved that such deposition was not in fact signed
by the justice purporting to sign the same.” *

1 Report of the Judges, 3 Binn. 595, 7? Clements, 2 Den. C. C. 251. The
620. ° deposition is receivable only: where the

2 Kilty Rep. Stats. 234. indictment ‘is substantially for the same
® See Reg. v. Riley, 3 Car. & K.116. offence as that with which the defendant
41, InArchb. Pl. & Ev. 13th Lond.ed, was charged before the justice, Reg. v.
213, we haye the following: “ This pro- Ledbetter, 3 Car.& K. 108. But where
vision authorizes the reading of the dep- the deposition was taken on a charge of
osition before the grand jury for the felonious wounding, it was held receiv-
purpose of finding the bill, aswell as able on the trial of the defendant for
before the petty jury at the trial. Reg. the murder of the as (ae
371
§ 523 THE EVIDENCE. [BOOK Iv.

§ 523. Archbold observes!: “ Although the former stat-
utes relating to the examination of witnesses against a pris-
oner before justices and coroners (1 & 2 Phil. & M.c. 18;
2 & 3 Phil. & M.c. 10; 7 Geo. 4, c. 64, § 2-5) did not
contain any express enactment like the above, it was yet de-
termined in many cases, and recognized as a rule of law,
that, in all cases of examinations of witnesses in cases of felo-
ny under these statutes, where they were taken in the pres-
ence of the accused, and he had the opportunity of cross-ex-
amining them, the deposition of any such witness might be
read in evidence against the accused on his trial, in case the
person who made the deposition were dead ;? or insane
(though the insanity were of a temporary nature) ;® or if it
appeared satisfactorily to the court that he was kept out of
the way by means of the procurement of the defendant ;* or
if he were bedridden, or so ill as to be unable to travel®
But they cannot be thus read, if it merely appear that the
witness is absent, and that the prosecutor has in vain used
his best endeavors to find him. Nor can depositions be read

who had in the mean time died of the
wound. Reg. v. Beeston, Dears. 405.
See Rex v. Radbourne, 1 Leach, 4th
ed. 457.”

2. This statute seems not to have ab-
rogated the prior law, but to have left
it as it stood before, augmented by the
new provisions. Thus, where two per-
sons were indicted, and it appeared that
a witness had been kept out of the way
by the procurement of one of the defend-
ants, in which procurement the other
defendant had not concurred, the dep-
osition taken before the magistrate in
pursuance of this statute was held to
be admissible as against the former de-
fendant, but not against the latter. And
Coleridge, J. said: “ Before the enact-
ment of 11 & 12 Vict. c. 42, I always
understood the law was, that, if a wit-
ness were absent, either by reason of
the death of the witness, or by the pro-
curement of the prisoner, the deposition
was receivahle in evidence against him.

[372]

But I believe these were the only two
cases where the absence of the witness
let in his depositions. Absences from
every other cause were within the same
category, and did not render them ad-
missible. The 17th section of the re-
cent statute took another case — where
a witness was proved to be so ill as to
be unable to travel — out of one catego-
ry and put it into another.’ Reg. v.
Scaife. 2 Den. C. C. 281, 286, 17 Q. B.
208. Compare this paragraph with the
next section in the text. :

1 Archb. Pl. & Ev. 13th Lond. ed.
213, 214.

2 1 Hale P. C. 305 ; Bull. N. P. 242.

* Reg. v. Marshall, Car. & M. 147 ;
Rex v. Eriswell, 3 T. R. 707, 720.

+ Rex v. Harrison, 4 Harg. St. Tr.
487, 492 ; Rex v. Morley, J. Kel. 55.

5 2 Phil. Ev. 97; 1 Hale P. C. 805;
2 Hale P. C. 52; Reg. v. Wilshaw,
Car. & M. 145.

6 J. Kel. 55.
CHAP. XXXI.] ABSENT OR DECEASED WITNESS. § 524

upon an indictment for high treason.! Depositions before
magistrates, to be thus given in evidence, must be taken con-
formably with the statute,? and in the presence of the pris-
oner, so that he may have an opportunity of cross-examining
the witness ;° and nothing should be returned as a deposi-
tion, unless the prisoner have an opportunity of knowing
what was said, and of cross-examining the party making it.*
But where the depositions were not wholly taken in the pres-
ence of the prisoner, but the witness afterwards, in his pres-
ence, was resworn, and the depositions repeated and signed,
the judges held that they were, under these circumstances,
admissible evidence ; for the prisoner had then an opportuni-
ty of cross-examining the witness.®

§ 524. “In this respect there is a difference between depo-
sitions taken before a magistrate and before a coroner; for
the latter are said to be evidence, even though the party ac-
cused be not present. The reason given for this exception
is, that the coroner is an elective officer, appointed on behalf
of the public to make inquiry of matters within his jurisdic-
tion, who therefore is presumed to take the depositions fairly
and impartially.’ There is, however, no reported case in
which this point has been directly determined ; but, although
the propriety of this distinction has been questioned,’ the
practice has nevertheless been to admit such depositions with-
out inquiry whether the party accused was or was not pres-
ent; and, in one case,? Hotham, B. received depositions
taken before a coroner, although it appeared and was object-
ed that the defendant was not: present. They must, how-
ever, in order to be admissible, appear to have been taken

1 Foster, 337. » Rex v. Smith, Russ. & Ry. 339, 2

2 Rex v. Smith, 2 Stark. 208,211,note. Stark. 208, Holt N. P. 614.

8 Rex v. Paine, 1 Salk. 281 ; Rex v. 6 Bull. N. P. 242; 2 Phil. Ev. 91;
Woodcock, 1 Leach, 4th ed. 500; Pyke per Buller, J. in Rex v. Eriswell, 3 T.
v. Crouch, 1 Ld. Raym. 730; Rex v. R. 707, 713.

Dingler, 2 Leach, 4th ed. 561; 1 Stra. 7 Bull. N. P. 242.
162; Bull. N. P. 243 ; Rex v. Forbes, 8 See 2 Stark. Ev. 384.
Holt N. P. 599. 9 Rex v. Purefoy, Peake Ev. 64.

4 Reg. v. Arnold, 8 Car. & P.621; 1 See Jervis Cor. 217, 218.

Reg. v. Johnson, 2 Car. & K. 394.

VOL. L 32 [373]
§ 526 THE EVIDENCE. [BOOK Iv.

before the coroner qua coroner;! and must be signed by
him.?

§ 525. “The depositions must appear to have been upon
oath also ;2 but it is not necessary that they should be signed
by the witness. Where several depositions were taken on
one sheet of paper, and at the foot of the whole was written
“sworn before me,’ with the signature of the magistrate, the
depositions previous to the last were held to be receivable in
evidence.®> But depositions taken in cross-examination, at a
subsequent time to those in chief, and not signed by the mag-
istrate, were held to be so irregular as to prevent the whole
depositions from being read against the prisoner ; although
both were sworn by the magistrate to have been accurately
taken.” ®

§ 526. Such being the English law, and the two statutes
of Philip & Mary being common law with us, the practition-
er, by consulting the statute book of his own State, may read-
ily determine how the matter stands there. The principle on
which these depositions are, under statutes like those which
prevailed in England down to a recent period, admissible, is,
that, being regularly taken under provisions of law, the com-
mon law accepts them, when it is impossible the personal

presence of the witness can be had.’

11 Ch. Cas. 306.

2 Rex v. England, 2 Leach, 4th ed.
767, 770.

3 1 Hale P. C. 586; Bull. N. P. 242,

4 Rex v. Flemming, 2 Leach, 4th ed.
854.

5 Reg. v. Osborne, 8 Car. & P. 113.

8 Reg. v. France, 2 Moody & R. 207.

7 In a note to Rex v. Smith, 2 Stark.
208, 211, the matter is stated as fol-
lows: “ The two statutes of Phil. & M.
seem to have been passed without any
direct intention, on the part of the leg-
islature, to use the examination and
depositions as evidence upon the trials
of felons. The first of these statutes,
namely, the 1 & 2 Phil. & M. ¢. 13, was
made for the express purpose of laying
a restraint upon justices of the peace in

[874]

exercising their power in admitting fel-
ons to bail, and is limited to those cases
where the party charged is admitted to
bail ; and the second of these statutes,
namely, the 2&3 Phil. & M.c. 10, ex-
tends similar provisions to cases where
the prisoner is committed, in order, it
seems, to ascertain whether the witness-
es are consistent in the testimony ; and
neither of these statutes manifests any
direct intention of the legislature to
make these documents evidence. Sce
the observations of Grose, J. in Rex
v. Lambe, 2 Leach, 4th ed. 552. But
the taking of such depositions having, in
cases of felony, been sanctioned by the
legislature, became, it seems, admissible
in evidence, upon the rules and principles
of evidence already established. The ef-
CHAP. XXXI.] ABSENT OR DECEASED WITNESS. § 527

§ 527. “It seems,” it is said in a note in Starkie’s Reports,
“that, at common law, a deposition judicially taken in one
proceeding may be used in another proceeding between the
same parties; the party, against whom the evidence is offered,
having had an opportunity to cross-examine in the former
proceeding.” + And the same principle applies where there
are two trials; there, if a witness has died between the first
and second trial, it may on the second be proved what he
swore to on the first, — a doctrine which prevails in criminal
causes? as well as in civil; and, in general, in the United
States as well as in England.? It seems, however, to be judi-
cially established, or nearly so, in Virginia,* perhaps also in
Tennessee,° that this species of evidence cannot be admitted
in criminal causes ; though it is, with us, admitted in some
other judicial localities.6 There seems to be no just ground
to discriminate, in such a matter, between civil and criminal
causes; and between testimony as to what a deceased witness
said on a former trial, and the deposition of the witness given

fect of the statutes in point of evidence
seems to consist in removing an objec-
tion which would before have occasion-
ed the rejection of such evidence, name-
ly, that the proceeding was extrajudicial ;
and, therefore, where the depositions
are not regularly taken within these
statutes, they cannot be read, because
there the same objection prevails which
existed as to all such depositions before
these statutes, namely, that they are
unwarranted and extrajudicial. Con-
sequently examinations and depositions
taken in a case of misdemeanor [refer-
ring to Rex v. Paine, 1 Salk. 281, 5
Mod. 163], cannot be read in evidence ;
because the statutes [see ante, § 521,
522] apply to cases of felony only.”

1 2 Stark. 211, the note copied from
in the notes to the last section.

2 Rex v. Buckworth, 2 Keb. 403, T.
Raym. 170.

3 Greenl. Ev. § 163 et seq.

* Finn v. Commonwealth, 5 Rand.
701; Mendum v. Commonwealth, 6
Rand. 704 ; Brogy v. Commonwealth,

10 Grat. 722. In the first cited of these
three cases, Brockenbrough, J. said :
“Tn a civil action, if a witness who has
been examined in a former trial between
the same parties, and on the same issue,
is since dead, what he swore to on the
former trial may be given in evidence ;
for the evidence was given on oath, and
the party had an opportunity of cross-
examining him. Peake, 60; Phillips,
199. But we cannot find that the rule
has ever been allowed in a criminal
case ; indeed, it is said to be expressly
otherwise. Peake, 60, quoting Fen-
wicke’s case, 4 St. Tr. 265. Nor can
we find that the rule in civil cases ex-
tends to the admission of the evidence
formerly given by a witness who has
removed beyond the jurisdiction of the
country ; much less can it be admitted
in a criminal case.” p. 708.

5 The State »v. Atkins, 1 Tenn. 229.

6 United States v. Wood, 3 Wash.
C. C. 440; Commonwealth v. Rich-
ards, 18 Pick. 434; United States »v.
Macomb, 5 McLean, 286.

[875]
§ 527 THE EVIDENCE. [BOOK Iv.

on the preliminary examination, pursuant to the directions
of a statute. We receive these depositions when the prisoner
had the opportunity to cross-examine the witness,! though we
reject them when he had not.? The reception of such testimo-
ny is not a violation of a constitutional provision, securing to
the indicted person the right “to meet the witnesses against
him face to face.”® There are, in many of the States, stat-
utory provisions more or less regulating this general subject;
but these, together with various other points connected with
the matters discussed in this chapter, are better examined in
a general work on evidence.

1 The State v. Harman, 27 Misso. 2 The State v. Hill, 2 Hill, S. C. 607.
120; Barron v. People, 1 Comst. 386 ; 8 Commonwealth »v. Richards, supra.
Bebee v. People, 5 Hill, N. Y. 32.

[876]
CHAP. XXXII.] DOCUMENTARY AND OTHER LIKE EVIDENCE. § 529

CHAPTER XXXII.

DOCUMENTARY AND OTHER LIKE EVIDENCE.

§ 528. In the last chapter, we took a view of the law re-
lating to the reception of depositions in criminal causes. A
deposition is, in one sense, documentary evidence. But, in
criminal causes, the same as in civil, other documentary evi-
dence is also received. This is matter pertaining to the gen-
eral law of evidence, and it is not deemed best to discuss it
in the present volumes.

§ 529. For the like reason, the discussion of numerous
other topics of a general nature, and pertaining as well to the
civil as the criminal department of the law of evidence, will
be passed by without notice here. It was deemed important
to call the attention of the reader to the subject of this chap-
ter, and place its title thus prominently before him, in order
to impress his mind distinctly with the fact, that these vol-
umes do not discuss those topics connected with the law of
evidence which pertain as well to the civil as the criminal
department. Yet, in the next division of this work, and in
the second volume, where we examine particular issues and
specific offences, those questions of evidence which are spe-
cially connected with such issues and offences will be con-
sidered.

82% [377]
BOOK V.

THE PLEADINGS AND EVIDENCE IN SOME SPECIFIC
ISSUES.

CHAPTER XXXITI.

INSANITY.

§ 530.. Tue issue of sanity or insanity presents itself in
various ways in criminal causes. The most common form is
where, on a general plea of not guilty, the prisoner in his
defence sets up, that, at the time of. the act committed, he
was of unsound mind. The law of this subject was discussed
in the work on the Criminal Law ;! it. remains for us here to
consider only the procedure.

§ 531. When, in 1846, William Freeman was tried in the
State of New York for murder, the question first raised was,
whether he was sufficiently sane to be put at all upon his
trial.2 This question was submitted to a jury.2 And it was
deemed that it was most discreet for the court to submit this
question thus ; though, in point of law, the question was one
which lay within the judicial discretion of the court, and it
was competent for the judge to adopt any other suitable
method of ascertaining the fact. When, therefore, after the
jury in the preliminary way had found Freeman to be of suffi-
cient capacity to be tried, and then on the main issue another
jury had found him guilty as having been sane at the time of

1 Crim. Law, I. § 460 et seq. Freeman. And see Crim. Law, I. § 469,
2 Crim. Law, I. § 487. note.
8 People v. Freeman, Hall’s Trial of | * Freeman v. People, 4 Denio, 9.

[378]
CHAP. XXXIIL ] INSANITY. § 533

the homicide committed, and lastly the higher court had set
aside this verdict and ordered a new trial, the judge who was
to try him the second time visited him in his cell, and there
satisfied himself of his present deranged condition, and, with-
out submitting the matter to a jury, or making further public
inquiry, refused to try him.1 In other instances, also, the
preliminary question of the prisoner’s present state of mind
has been submitted. to a jury ;? though, as we have seen, it
is not always or necessarily so.®

§ 582. On such a preliminary inquiry, the test of insanity
is not precisely the same as on the main issue; but it is,
whether the prisoner is mentally competent to make a rational
defence. Therefore the finding of the jury on this prelimi-
nary issue, supposing it to be adverse to the prisoner, is not,
strictly, to be received as evidence against him on the trial of
the main issue.5 Therefore, also, the prisoner has not, on this
preliminary trial, the right of peremptorily challenging jurors,
though he may challenge them for cause. Let us now pro-
ceed to consider the question: of insanity as it presents itself
on the issue of not guilty.

§ 583. The general doctrine of presumptions and the bur-
den of proof, in criminal causes, was considered in a previous
chapter.’’ The reader is requested to examine that chapter
in connection with what is now to be stated. In many of the
cases, there are judicial expressions and almost absolute de-
cisions to the effect, that the prisoner who, being of full age,
relies on the defence of insanity, takes upon himself what in

become insane, and the court doubts on
this point, it will ordinarily submit the

1 Crim. Law, I. § 469, note, par. 9.
2 People v. Lake, 2 Parker C. C.

215 ; Shultz v. The State, 13 Texas,
401.

8 See also Jones v. The State, 13
Ala. 153. The same doctrines apply
to the question of insanity arising after
the conviction and before sentence ; for,
if the prisoner becomes insane between
the conviction and the sentence, the lat-
ter cannot be pronounced against him.
Crim. Law, IL. § 487. Therefore, when a
person has been convicted of murder, if
_ he then alleges by his counsel that he has

question to a jury; but if, on inspec-
tion, the judge is fully ‘satisfied the al-
legation is false, he will, without this
further inquiry, proceed to the sentence.
Bonds v. The State, Mart. & Yerg. 143.

* Crim. Law, I. § 487; Freeman ».
People, 4 Denio, 9.

5 Freeman v. People, 4 Denio, 9, 39.
And see Shultz v. The State, 13 Texas,
401.

6 Freeman v. People, supra.

7 Ante, § 483 et seq.

[379]
§ 533 SOME SPECIFIC ISSUES. [BOOK Vv.

some of the cases is called the burden of’ proof, and in others
is regarded rather as the legal duty to overcome the legal
presumption of sanity, to establish to the jury, as an affirma-
tive proposition, the fact of insanity, as existing at the time
when the alleged wrongful act was committed ; though the
evidence may come as well from the government’s witnesses
as from his own.! By what weight of evidence this proof is
to be made the judges seem not exactly to agree.2 All, how-
ever, concur, and properly so, that, in some way, there is in
these cases involved the legal presumption of sanity, attend-

1 3 Greenl. Ev. § 5; Commonwealth
v. Heath, 11 Gray, 303, a case of idiocy,
the court reserving the question whether
the same rule would apply in a case
of insanity proper; Newcomb v. The
State, 37 Missis. 383 ; People v. Robin-
son, 1 Parker C. C. 649; The State v.
Brinyea, 5 Ala, 241,

2 Thus, it has even been laid down,
that, in order to justify an acquittal on
the plea of insanity, the proof of in-
sanity, as existing at the time when the
wrongful act was committed, should be
as clear and satisfactory as the proof of
the commission of the act ought to be in
order to find a sane man guilty. The
State v. Spencer, 1 Zab. 196. This,
however, is far from being the general
doctrine. Still, where this doctrine is
not held, it is not easy to say what the
prevailing doctrine is. According to
an Alabama case, the prisoner must
make out, by testimony beyond a reason-
able doubt, and by proofs strong, clear,
and convincing, that he was insane at
the time when the act was committed ;
then, if upon the testimony the jury
should entertain no reasonable doubt of
his sanity, they should find him guilty,
The State v. Brinyea, 5 Ala. 241. In
another Alabama case, the prisoner’s
counsel had asked for the following in-
struction to be given the jury, and the
majority of the court held that it should
havé been given ; namely, “ that, if
they entertain any reasonable doubt as

[380]

to the sanity of the prisoner, they must
acquit him.” Said Ormond, J.: “If
the prisoner was insane, he was not an
accountable being, and can the public
justice of the country repose with safety
upon w verdict found by a jury, every
member of which may have entertained
a reasonuble doubt of its propriety? It
would have been highly proper that the
court, when called on thus to charge,
should have explained to the jury, that
this defence required to be made out by
strong, clear, and convincing proof, and,
guided by these considerations, if they
still entertain a reasonable doubt of the
sanity of the prisoner, it was their duty
to acquit.” The State v. Marler, 2 Ala.
43. In Missouri, when, in a case of
homicide, the prisoner relies on the de-
fence of insanity, he should prove it
clearly ; and he is not entitled to the
benefit of a mere doubt whether he was
insane or not. The State v. Huting, 21
Misso. 464. In North Carolina, the
following instruction, given by the judge
to the jury, in a case of insanity, was
held to be correct: ‘‘ Where he [the
prisoner] admits the killing, or it is
proved, every matter of mitigation or
excuse must come from him. He is not
required to show the matter of excuse
beyond a reasonable doubt, but must
offer such testimony as will satisfy you
that his defence is established.” The
State v. Starling, 6 Jones, N. C. 366.
See also the note to the next section.
CHAP. XXXII] INSANITY.

§ 534

ing on the proven acts of the prisoner, and operating, there-
fore, against him in this issue.}

§ 534. To the writer of these volumes, the true doctrine
seems to be the following. ‘Sanity,’ as observed by a
learned judge, “is presumed to be the normal state of the
human mind, and it is never incumbent upon the prosecutor
to give affirmative evidence that such state exists in a partic-
ular case.” 2 But suppose this normal state is denied to have
existed in the particular instance ; then, if evidence is pro-
duced in support of such denial, the jury must judge of it and
its effect on the main issue of guilty or not guilty ; and if,
considering all the evidence, and considering the presumption
that what a man does is sanely done, and suffering the evi-
dence and the presumption to work together in their minds,
they entertain a reasonable doubt whether the prisoner did
the act in a sane state of mind, they are to acquit, otherwise

they are to convict.®

1 Graham v. Commonwealth, 16 B.
Monr. 587; United States v. McGlue,
1 Curt. C.C. 1; The State v. Starling,
6 Jones, N. C. 366.

2 Wright, J. in Walter v. People, 32
N. Y. 147, 164.

3 1. It seems to me that the statement
of the law, as thus made in this section,
is accurate in point of principle; and, in
point of authority, is as nearly accurate
as it can be made, considering that the
language of the cases is very conflict-
ing, and many times very confused. It
seems to me, also, that it is as full as it
can be judiciously made. Any greater
refinement, moreover, in an instruction
to the jury, would practically embarrass
more than it would help them.

2. Let us, however, collect here some
points adjudged, and some observations
of judges, in addition to those mention-
ed in a note to the last section ; for they
will be helpful to practitioners and to
the courts, in their future examinations.
According to a Massachusetts case, the
burden of proof, resting upon the com-
monwealth in a capital case, is sustain-
ed, so far as the defendant’s mental

capacity is concerned, by the presump-
tion of sanity, until rebutted by a pre-
ponderance of the whole evidence. And
Metcalf, J. observed : “The burden is
on the commonwealth to prove all that
is necessary to constitute the crime of
murder. And as that crime can be
committed only by a reasonable being,
—a person of sane mind,—the bur-
den is on the commonwealth to prove,
that the defendant was of sane mind
when he committed the act of killing.
But it is a presumption of law, that all
men are of sane mind; and that pre-
sumption sustains the burden of proof,
unless it is rebutted and overcome by
satisfactory evidence to the contrary.
In order to overcome this presumption
of law, and shield the defendant from
legal responsibility, the burden is on
him to prove, to the satisfaction of the
jury, by a preponderance of the whole
evidence in the case, that, at the time of
committing the homicide, he was not of
sane mind. This is not only required
by the general rule of law, but is dis-
tinctly implied in the provision of the
Rev. Stats. c. 137, § 12, that, ‘when
[381]
§ 535

SOME SPECIFIC ISSUES.

[BOOK V.

§ 535. The remaining topics, relating to the proof of insan-
ity in criminal causes, are such as are perhaps not peculiar to

any person, indicted for an offence,
shall, on trial, be acquitted by the jury
by reason of insanity, the jury, in giv-
ing their verdict of not guilty, shall
state that it was given for such cause.’ ”
Commonwealth v. Eddy, 7 Gray, 583,
584. See also Commonwealth v. Rog-
ers, 7 Met. 500, 506. As to the effect
of this sort of statutory provision, see
also Bonfanti v. The State, 2 Minn.
123, where it seems to be deemed to
have cast the burden of proof on the
prisoner, even though it was not on
him before.

3. In a New York case, according, at
least, to one opinion given, where, on a
trial for murder, the killing is admitted,
and the defence is insanity, the issue
and the burden of proof are the same,
and it still remains with the prosecu-
tion to show the existence of those re-
quisites or elements which constitute the
crime; sanity is a necessary condition
to constitute the crime, and the prisoner
is entitled to any doubt resting upon this
question. It was observed, however,
by Bowen, J. as follows: ‘It is a gen-
eral rule, applicable to all criminal tri-
als, that, to warrant a conviction, the
evidence should satisfy the jury of the
defendant’s guilt beyond a reasonable
doubt ; and it has been held, that there
is a distinction in this respect between
civil and criminal cases. This rule is
based upon the presumption of inno-
cence, which always exists in favor of
every individual charged with the com-
mission of a crime. It is also a rule,
well established by authority, that where,
in # criminal case, insanity is set up as
a defence, the burden of proving the
defence is with the defendant, as the
law presumes every man to be sane.
But I apprehend that the same evidence
will establish the defence which would
prove insanity ina civil case. The rule,
requiring the evidence to satisfy the jury
beyond a reasonable doubt, is one in fa-

[882]

vor of the individual on trial, charged
with crime; and is applicable only to
the general conclusion, from the whole
evidence, of guilty or not guilty.” Peo-
ple v. McCann, 16 N. Y. 58, 62.

4. In a late New Hampshire case,
this matter was considered ; and the fol-
lowing extracts from the opinion by
Bellows, J. will indicate the result :
“Upon a careful examination of the
questions, both upon principle and au-
thority, we are of the opinion, that the
jury ought not to return a verdict of
guilty so long as a reasonable doubt
rests in their minds of the prisoner’s ca-
pacity to commit the offence charged.
.... Nor do we think it at all mate-
rial whether the proof of insanity comes
from the government, or the accused, or
part from each; but, however adduced,
it is incumbent upon the prosecutor to
satisfy the jury, beyond a reasonable
doubt, of the existence of all the ele-
ments, including the necessary sound-
ness of mind, that constitute the of-
fence.” Again: “The rules as to the
weight of evidence and burden of proof
in civil cases are not safe guides in
criminal causes. . In criminal
causes, the trial is usually had upon a
plea that puts in issue all the allega-
tions in the indictment ; and, upon
every sound principle of pleading and
evidence, the burden is upon the pros-
ecutor to sustain them by satisfactory
proofs... . . The natural presump-
tion of sanity is prima facie proof of a
sound memory, and that must stand
unless there is other evidence tending
to prove the contrary... . Our opin-
ion, then, is,. that the inference which
the law makes of sanity, malice, and
the like, is to be regarded as merely a
matter of evidence, and standing upon
the same ground as the testimony of a
witness ; and, in this respect, is like the
presumption ofinnocence.” The State
v. Bartlett, 48 N. H. 224, 228 - 230.
CHAP. XXXII] INSANITY. § 535

the criminal law; yet, both because of their practical impor-
tance, and because they most often arise in criminal cases, as
well as because they may involve some points of a peculiar
kind here, it is deemed best to give them some consideration
in remaining sections of this chapter. The evidence to be
introduced must prove the party to have been insane at the
time of the offence committed ; it not being sufficient that he
was insane before, or after, unless he was also insane at the
time. Yet, as sustaining this issue, if the evidence is of per-
manent insanity, the insane mind may be shown to exist at
the time of the trial,? or to have existed at any other time
before or after the criminal act was committed.? Still, this

5. Let us close this review by setting
in contrast two representative modern
opinions. The one is as follows: The
presumption being, that all men have
sufficient capacity to commit crime;
therefore, the prisoner who sets up in-
sanity in excuse must prove it. The
proof need not establish the defence be-
yond a reasonable doubt; but it is
enough if the jury are satisfied of the
defence by the weight or preponderance
of the testimony. Loeffner v. The State,
10 Ohio State, 598; Fisher v. People,
23 Ill. 288. But afterward, in the
State in which the latter of these two
cases was decided, the decision was
overruled, and the burden of proof was
held to he wholly on the government
throughout. Said Breese, J.: “ Sound
mind, or sanity, is an ingredient in
crime, quite as essential as the overt
act. Who will deny, if there be a rea-
sonable doubt as to the overt act, that
the jury are bound to acquit? Equally
imperative must be the rule, if a reason-
able doubt be entertained as to the san-
ity of the prisoner. Sanity is guilt, in-
sanity is innocence; therefore a rea-
sonable doubt of the sanity of the ac-
cused, on the long and well-recognized
principle of the common law, must
acquit.” Speaking of the above-cited
case of Fisher v. People, he said: “ The
opinion in that case was prepared under

peculiar circumstances, not admitting
of much deliberation, and this point was
not pressed upon the attention of the
court, or argued at length. Further re-
flection has satisfied us it was too
broadly laid down, and that justice and
humanity demand the jury should be
satisfied, beyond a reasonable, well-
founded doubt, of the sanity of the
accused.” Again: “Can it be prop-
erly said, in criminal cases, the burden
of proof ever shifts, so long as the de-
fendant bases his defence on the deni-
al of any essential allegation in the in-
dictment? We think not. The pros-
ecution is bound, on every principle of
correct pleading and of justice, to main-
tain their allegations; and it is not in
their power to shift the burden on the
defendant. The presumption of inno-
cence is as strong as the presumption
of sanity.” From this opinion, Walk-
er, J. dissented. Hopps v. People, 31
Til. 385, 393, 394. See ante, § 496 - 498.

1 Crim. Law, I. § 473, 476, 487;
Jones v. The State, 13 Ala. 153; Gra-
ham v. Commonwealth, 16 B. Monr.
587; The State v. Windsor, 5 Harring.
Del. 512.

2 Freeman v. People, 4 Denio, 9.

8 Crim. Law, I. § 476; Peaslee ».
Robbins, 3 Met. 164; Vance v. Com-
monwealth, 2 Va. Cas. 132; Grant v.
Thompson, 4 Conn. 203; Kinne v. The

[383]
§ 536 SOME SPECIFIC ISSUES. [BOOK V.

evidence, to be admitted, or at least to be very weighty, should
not refer to a period too long before or after the time when
the criminal act was done;! though it is not probable this
proposition can be reduced to any very exact rule. But
“ some species of insanity are not presumed to be continuing
in their nature ”’ ; to these, therefore, the foregoing doctrine
does not apply. Thus, where delirium, tremens is set up in
defence, the prisoner must show that he was under a delirium
at the time the act was perpetrated, there being no presump-
tion of its existence from antecedent fits from which he has
recovered.2 The same may be said of insanity caused by a
violent disease.*

§ 536. Passing over various other points which will be
found in books treating of the general law of evidence, we
have presented to us a cluster of questions attended with a
good deal of difficulty. The central question of these is,
whether any and all persons, or what class of persons, may,
as witnesses, express their opinions regarding the mental con-
dition of the prisoner, as being sane or insane. Now, philo-
sophically, all testimony of witnesses is a mere expression of
opinion by the witness ; though, for the sake of convenience,
law writers and judges distinguish between what they call
statements of fact and statements of opinion. And it is laid
down in the books, that, as a general proposition to which
there are exceptions, witnesses must state facts and not opin-
ions. Said a learned judge: “ The rule authorizing the re-
ception of opinions is no doubt exceptional. It is not a spe-
cies of evidence which the law favors, but is admitted from
necessity alone.” ® Plainly, however, as all testimony, truly
viewed, is merely that of opinion, the line which a mere ar-
tificial division runs between fact and opinion must be

State, 9 Conn. 102; Bryant v. Jack- 5 The State v. Sewell, 3 Jones, N.
son, 6 Humph. 199. C. 245.

1 Sanchez v. People, 22 N. Y. 147; * Hix. v. Whittemore, 4 Met. 545.
Dickinson v. Barber, 9 Mass. 225 ; Ex- 5 Ante, § 485.
um v. Canty, 34 Missis. 533. See The 8 Selden, J. in De Witt v. Barly, 17
State v. Scott, 1 Hawks, 24. N. Y. 340, 351.

2 Stewart v. Redditt, 8 Md. 67, 81.
See 2 Bishop Mar. & Div. § 563.

[384]
.

CHAP. XXXII ] INSANITY. § 537

jagged, and at some places uncertain. And plainly there is
nothing which, in truth, is more completely a fact than the
mental condition of a man as sane or insane. The height of
his body, the color of his skin, and the like, are physical facts,
and witnesses who have observed them testify to them direct-
ly. The condition of a man at a particular time, as excited
or calm, vivacious or melancholy, giddy-headed or serious, is
a mental fact, and all witnesses who have observed it are per-
mitted to testify directly to it. So the condition of a man as
sane or insane is equally a mental fact ; and, in philosophical
reason, it should be the subject of equally direct testimony.
On this subject as on others, witnesses will differ in their
powers of observation ; one man, for instance, will measure
the height of another accurately with his eye, another man
will mistake greatly on such a question ; yet both are permit-
ted to testify, and the relative capacities of the two witnesses,
as to the particular matter, are made to appear on cross-exam-
ination. And it is the same in measuring the mental height,
and mental condition. Suppose the rule was, that, in giving
the dimensions of physical objects, as they appear to the eye,
the witnesses should, instead of stating their opinions, in the ,
usual way, be required to confine themselves to describing
the angles of light made by the rays reflected from the objects
and ‘entering the eye, leaving the jury to draw the infer-
ence, either with or without the aid of experts in optics, sure-
ly justice would not be promoted by such a course. And
what is true of physical objects is almost equally true of men-
tal. Theréfore, in reason, every witness who is sufficiently
acquainted with the prisoner to know his mental condition as
sane or not, should be permitted to testify to the fact, as well
as to collateral facts from which this main fact is inferable ;
subject to cross-examination relative to the grounds of his
knowledge, and capacity, and means of coming to a correct
‘conclusion, the same as in other cases.

§ 587. When we look at this question in the light of judi-
cial authority, we find that a large, and indeed much the
larger, class of judges in this country do permit the witnesses

who are not experts, as well as the experts, to state whether
VOL. I. 33 [ 885 }
§ 587

SOME SPECIFIC ISSUES.

[Boox v.

or not they deem the prisoner to be insane ; in connection with
their statements of the particular conduct and expressions
which form the basis of their judgment.!

1De Witt v. Barly, 17 N. Y. 340.
The opinion of Selden, J. in this case
is very learned and instructive, and it
may be deemed a leading case. It
should be carefully examined by the
student. ‘ Mental imbecility,” he says,
“is exhibited in part by the attitude,
by gesture, by the tones of the voice,
and by the expression of the eye and
the face. Can these be described in
language so as to convey to one not an
eye-witness, an adequate conception of
‘their force?” p.348. Of course, they
cannot, and hence the necessity of per-
mitting the witness to state the result,
if he is to instruct the jury to the full
extent of what he knows. , In a Con-
necticut case the doctrine was laid down
as follows: When the sanity of a per-
sou is the matter in dispute, a non-
expert witness may give his opinion, ac-
companied by a statement of facts with-
in his own knowledge upon which he
bases it, in regard to the question ; but
‘he cannot, even upon cross-examina-
tion, and after having so given his
opinion, be permitted to give his opin-
ion upon the question whether a hypo-
“thetical set of facts would or would not,
‘if true, be evidence of insanity. And
Ellsworth, J. observed: “‘ We never
allow the mere opinion of a witness to
go to the jury if objected to, unless the
witness is an expert and testifies as
such, where the jury from want of ex-
perience or observation are unable to
draw proper inferences from facts prov-
ed, But where a witness speaks from
his personal knowledge, and, after stat-
ing the facts, adds his opinion upon
them, or, in a certain class of cases,
gives his opinion without detailing the
facts on which it is founded, his tes-
timony is received, as founded, not on
his judgment, but on his knowledge.
As, for instance, the case of personal

[ 386]

identity ; where the witness may say,
that he knows the man; and that the
person whom he saw was that man ;
and he is not obliged, unless requested,
to state his height, size, age, complex-
ion, gait, voice, and dress. So a wit-
ness may state that a certain road is or
is not in repair; or that a certain bridge
is sound and safe, or otherwise; or that
a farm or house is worth so much;
without going into the particular facts
on which he founds his opinion, these
facts being known to him personally.
He only states, in such cases, the result
of his own observation and knowledge.
Wherever the particulars are quite nu-
merous, a witness is allowed to testify
what he knows as the result of his ob-
servation of facts, and thus to testify
to the general fact, rather than to recite
every circumstance that conduces to
that knowledge. ' This is a rule of con-
venience which must be applied on tri-
als, unless they are to be indefinitely
protracted by a useless minuteness of
inquiry. This rule has been very gen-
erally, in this country, applied to the
case of insanity. It prevails in the ec-
clesiastical courts in England, but not
in their courts of common law. It has
always prevailed in this State. Every
professional man knows, that it has
been again and again sanctioned in this
and in all our courts. I do not remem-
ber a contested case of insanity, whether
upon a will or deed, where the witness-
es have not expressed their opinions as
to the result of facts within their own
observation and knowledge.” Dun-
ham’s appeal, 27 Conn. 172, 197. In
an earliér Connecticut case, some stress
was laid on the point of linking the
opinion to the particular appearances
and conduct from which it proceeds.
Said Hosmer, C. J. ; “ The county court
rejected the mere opinions of the wit-
CHAP. XXXII] INSANITY. § 538

§ 538. Still, it is obvious that a witness, whether expert or
non-expert, may not possess such knowledge of the prisoner’s
mental condition as will enable him to testify to observations
made on this point, while yet he can testify to what he does
know, bearing on the issue. In general terms, the non-pro-
fessional witness, who is to state whether or not he deems the
prisoner to be insane, must have had the necessary opportu-
nities of observation ;1 but it was laid down in one case, that
no precise rule can be given as to the length or character of
the acquaintance requisite. It was deemed, that, where the
insanity is general, consisting of a total incapacity to distin-

nesses relative to the defendant’s insan-
ity, but admitted them in connection
with the facts on which they were found-
ed; and in doing this, they discrimi-
nated soundly and legally. This is not
a novelty, but sanctioned by the usual
practice of courts in such cases. Such
evidence is admissible to confirm the
witness, and to attach w proper confi-
dence to his testimony, and to form a
correct estimate of the credit due to
him. In addition to this, although it
would be dangerous in its tendency to
admit the uncorroborated opinion of a
witness relative to the operations of
another’s mind, yet, when it is found to
be presumptively supported by facts, it
catries with it a convincing weight.
The best testimony the nature of the
case admits of, ought to be adduced ;
and, on the subject of insanity, in my
judgment, it consists in the representa-
tion of facts, and of the impressions
which they made.” Grant v. Thomp-
son, 4 Conn. 208, 208. In North Car-
olina it was laid down, that a witness,
who has had opportunities of knowing
-and observing a person whose sanity is
impeached, may not only depose to the
facts he knows, but may also give his
opinion or belief as to his sanity or in-
sanity. And Gaston, J. said: “If the
witness may be permitted to state, that
-he has known the individual for many
years, has repeatedly conversed with

him, and heard others converse with
him,; that the witness had noticed that
in these conversations he was incohe-
rent andsilly ; that in his habits he was
occasionally highly pleased and greatly
vexed without a cause ; and that in his:
conduct, he was wild, irrational, extrava-
gant, and crazy, — what would this be
but to declare the judgment or opinion
of the witness of what is incoherent or
foolish in conversation, what reason-
able cause of pleasure or resentment,
and what the indicia of sound or disor-
dered intellect ? If he may not so tes-
tify, but must give the supposed silly
and incoherent language, state the de-
grees and all the accompanying circum-
stances of highly excited emotion, and
specifically set forth the freaks or acts
regarded as irrational, and this with-
out the least intimation of any opinion
which he has formed of their charac-
ter, where are such witnesses to be
found?” Clary v. Clary, 2 Ire. 78, 80,
81. To the like effect are decisions in
some of the other States } as see Pow-
ell v. The State, 25 Ala, 21; Florey 2.
Florey, 24 Ala, 241; Norris v. The
State, 16 Ala. 776; Clark v. The State,
12 Ohio, 483; Wilkinson ». Pearson,
11 Harris, Pa. 117; Baldwin v. The
State, 12 Misso. 223; Jerry v. Towns-
hend, 9 Md. 145.

1 Florey v. Florey, 24 Ala, 241. And
see Jerry v. Townshend, 9 Md. 145.

[ 387 ]
§ 540 SOME SPECIFIC ISSUES. [BOOK V.

guish right from wrong, the same degree of observation is
not required as in cases of partial derangement; and, there-
fore, the same degree of intimacy is not necessary to render
the opinion of the witness admissible. But in every case, the
circumstances must be such as to have afforded the witness
the opportunity of forming an accurate judgment as to the
existence or non-existence of the disease, considered with ref-
erence to the character or.degree in'which it is alleged to ex-
ist.1 Also, supposing the evidence is admissible, its weight
will depend upon a great variety of cireumstances.2 Thus it
was laid down in a Connecticut case, that the opinions of a
witness as to the capacity of a testator to do business, or to
make a will, are entitled to little or no regard, unless sup-
ported by good reasons, founded on facts which warrant them.
In the rather strong language of Williams, J.: ‘‘If these rea-
sons are frivolous or inconclusive, the opinions of witnesses
are worth nothing.’’?

§ 589. But perhaps the witness should not be asked a ques-
tion which would call out precisely the kind of opinion mef-
tioned in this Connecticut case. It is matter of law what ex-
tent and kind of capacity are requisite to do business or make
a will; and the New York court laid it down, with great force,
that the witness is not to testify to the law but to the facts,
wherefore he cannot be asked a question the answer to which
will involve a decision, in his mind, of a point of law. The
question should be so varied as to avoid this objection.‘

§ 540. It is, however, held in some of the States, that a
witness who is not an expert is never competent to give an
opinion upon the question of sane or insane. It is so held
in Massachusetts ;° yet, in this State, Thomas, J. said: “ All
lawyers know how difficult it is to try issues of sanity with

‘

1 Powell v. The State, 25 Ala. 21.
2 And see Norris v. The State, 16

from the general appearance of the for-
mer, he considered him capable of mak-

Ala. 776.

§ Kinne v. Kinne, 9 Conn. 102,

*De Witt v. Barly, 17 N. Y. 340.
In Pennsylvania it was held, that, to
prove the mental incapacity of the grant-
or, @ witness may be asked whether,

[ 388]

ing acontract or transacting important
business ; but the jury are to judge of
the correctness of this opinion from the
facts disclosed. Wilkinson v. Pearson,
11 Barris, Pa. 117.

5 Commonwealth ». Fairbanks, 2 Al-
CHAP. XXXII] INSANITY. § 542

the restrictions, as to matters of opinion, already existing ;
how hard it is to make witnesses distinguish between mat-
ters of fact and opinion, on this subject; between the con-
duct and traits of character they observe, and the impression
which that conduct and those traits create, or the mental
conclusion to which they lead the mind of the observer. If
it were a new question, I should be disposed to allow every
witness to give his opinion, subject to cross-examination upon
the reasons upon which it is based, his degree of intelligence,
and his means of observation.” ! .

§ 541. But it is the doctrine of all the courts, that the
opinions of ‘experts may be given as to the mental condition
of the prisoner, based on their personal examinations or ob-
servations.? Still, it was in one case held, that a physician
who has visited him in consultation with his attending physi-
cian will not be permitted to give an opinion of his mental
condition at that time, based upon representations then made
by his wife, physician, or other attendant, and taken in connec-
tion with symptoms discovered by personal observation. The
opinion of the expert should be formed entirely from his own
examination of his patient’s condition. In giving his opinion
founded on such examination, he should, like a non-profession-
al witness, state the facts out of which the opinion proceeds.*

§ 542. And whether the expert testifies to his personal ex-
aminations or not, he may, even though he has not seen the
prisoner, give to the jury the results of his professional skill, to
aid them in their verdict. His opinions are simply brought to
their assistance; and, should they upon the whole evidence
come to a different conclusion from his, their verdict is to fol-

Jen, 511; Baxter v. Abbott, 7 Gray, 71;
Buckminster v. Perry, 4 Mass. 593;

Pick. 510; Ware v. Ware, 8 Greenl.
42,

Hathorn v. King, 8 Mass. 371 ; Com-
monwealth v. Wilson, 1 Gray, 337.
See Gehrke v. The State, 13 Texas,
568. In these States, however, the sub-
scribing witnesses to a will may testify
as to the opinion they formed of the tes-
tator’s mental condition at the time he
executed the will. Poole v. Richard.
son, 3 Mass. 330; Needham v. Ide, 5
33 *

1 Baxter v. Abbott, supra, p. 79.

2 Commonwealth v. Rogers, 7 Met.
500; McAllister v. The State, 17 Ala.
434. In re Vanauken, 2 Stock. 186 ;
Baxter v. Abbott, 7 Gray, 71.

8 Heald v. Thing, 45 Maine, 392.
See Anderdon v. Burrows, 4 Car. & P.
210.

4 Clark v. The State, 12 Ohio, 483.

[ 389 ]
§ 542 SOME SPECIFIC ISSUES. [BOOK V.
low, not his opinion, but their own convictions.1 If he has
been present in court, and has heard all the evidence given
and there is no dispute concerning the existence of the par-
ticular facts testified to, he may then be asked his professional
opinion upon the result of the whole matter.2 But if the
facts themselves are disputed, the question cannot be put to
him in this form. In Delaware the following was held to
be a proper form of question to be put to an expert: “ You
have heard all the evidence in this case : — supposing the jury
to be satisfied that the facts and circumstances testified to by
the other witnesses are true, what is your opinion, as a medi-
cal man, of the state of the prisoner’s mind at the time of the
commission of the alleged crime? Was the prisoner, in your
opinion, at the time of doing the act, under any and what kind
of insanity or delusion, and what would you expect would be
the conduct of a person under such circumstances?”* Still,
it is said, that this form of the question “ cannot be insisted
on as a matter of right.” And where this form of the ques-
tion is not allowed; or where, by reason of the facts being

1 McAllister v. The State, 17 Ala.
434; Watson v. Anderson, 13 Ala.
202; Luning v. The State, 1 Chand.
178.

2 Rex v. Searle, 1 Moody & R. 75.

3 United States v. McGlue, 1 Curt.
Cc. C. 1.

* The State v. Windsor, 5 Harring.
Del. 512; s. p. Commonwealth v. Rog-
ers, 7 Met. 500, 505.

5 McNaughton’s case, 10 Cl. & F.
200, 1 Car & K. 180, 136. In the an-
swer of the judges to questions put by
the House of Lords, growing out,of the
acquittal of McNaughton (see: Crim.
Law, I. § 475, note), the following pas-
sage, in the opinion of Lord Chief Jus-
tice Tindal, occurs : “ The question last-
ly proposed by your lordships is, —
‘Can a medical man conversant with
the disease of Insanity, who never saw
the prisoner previous to the trial, but
who was present during the whole trial
and the examination of all the witness-
es, be asked his opinion as to the state

[390]

of the prisoner’s mind at the time of the
commission of the alleged crime, or his
Opinion whether the prisoner was con-
scious, at the time of doing the act, that
he was acting contrary to law, or wheth-
er he was laboring under any and what
delusion at the time ?’ In answer there-
to we state to your lordships, that we
think the medical man, under the cir-
cumstances supposed, cannot in strict-
ness be asked his opinion in the terms
above stated ; becanse each of those
questions involves the determination of
the truth of the facts deposed to, which
it is for the jury to decide, and the ques-
tions are not mere questions upon a
matter of science, in which case such
evidence is admissible. But where the
facts are admitted, or not disputed, and
the question becomes substantially one
of science only, it may be convenient
to allow the question to be put in that
general form, though the same cannot
be insisted on as 4 matter of right.” p.
135 of the reportin 1 Car. & K. See
CHAP. XXXII. ]

INSANITY.

§ 548

- disputed, or the witness not having heard all the evidence,
it is deemed to be inadmissible in the particular case; the
question is put to him hypothetically, as to his opinion on
such and such facts, and the like, supposing them to exist.?
So the witness may be asked concerning the results to be de-
duced from such and such appearances, proved by other wit-
nesses. And the question cannot be whether or not the
prisoner is guilty, but what is or was his mental condition in
respect of the matter of sanity or insanity.* Neither is the
expert to be asked whether he-has doubts respecting the pris-

oner’s sanity.

He is to give opinions.®

§ 543. His opinions on the matters of science which arise
are not to be limited to what he has learned by his own ob-
servation ; he may give, also, results derived from his profes-

sional reading.®

But the books themselves cannot in strict-

ness of law be read by counsel to the jury, though this has
not unfrequently been done in practice.’

also People v. Lake, 2 Kernan, 358 ;
Spear v. Richardson, 37 N. H. 23.

- 1 People v. Lake, supra ; Sanchez v.
People, 22 N. Y. 147.

2 People v. Thurston, 2 Parker C.
C. 49 ; Reed v. People, 1 Parker C. C.
481; McCann v. People, 3 Parker C. C.
272; Spear v. Richardson, 37 N. H. 23.
The witness, however, cannot be drawn
out into mere abstract speculation, un-
less by way of cross-examination to test
his competency. The direct examina-
tion must be confined to such facts as
appear in the case. ‘ Whatever diversi-
ty of opinion,” said Duvall, J., “there
may have been in relation to the admis-
sibility of the opinions of experts upon
questions of art or science, it is agreed
on all hands, that such opinions, to be
admissible, must always be. predicated
upon and relate to the facts established
by the proofs in the case. Mere profes-
sional opinions upon abstract questions
of science, having no proper relation to
the facts upon which the jury are to pass,
evidently tend to lead their minds away
from the true and real points of inqui-

ry, and should, therefore, always be ex-
cluded.” Champ v. Commonwealth, 2
Met. Ky. 17, 27.

3 Rex v. Wright, Russ. & Ry. 456.
And see Stephens v. People, 4 Parker
C. C. 396.

* People v. Thurston, supra. And
see Rex v. Wright, supra; ante § 539.
5 Sanchez v. People, 22 N. Y. 147.

6 The State v. Terrell, 12 Rich. 321.

7In ‘Commonwealth v. Wilson, 1
Gray, 337, 338, the prisoner’s counsel,
says the report, “in opening the case
for the defendant, proposed to read to
the jury definitions of insanity from
works of established reputation on the
subject,” &c., including “ statistics ” re-
lating to the increase of insanity. But
the court refused to permit this, and
Shaw, C. J. observed: “ Facts or opin-
ions on the subject of insanity, as on
any other subject, cannot be laid before
the jury except by the testimony under
oath of persons skilled in such matters,
Whether stated in the language of the
court or of the counsel in a former ease,
or cited from the works of legal or med-

[391]
SOME SPECIFIC ISSUES.

§ 544 [Boox v.

§ 544. The question, whether a particular witness tendered
shall be admitted as an expert, is in these cases as in others,
to be determined by the court.1 And insanity being deemed
a disease, it is believed to be the general custom of our Amer-
ican judges throughout the country to accept of all educated
and practising physicians as experts, whether they have given
special attention to the disease of insanity or not.2 Yet the
care of the insane has become almost a separate branch of the
profession of late ; and the testimony of physicians who have
no special attainments in this part of their profession is of
comparatively little weight. And, as observed by a learned

judge, “while the opinion of the experienced, skilful, and

ical writers, they are still statements of
fact, and must be proved on oath. ..
The principles governing the admissi-
bility of such evidence have been fully
considered by this court since the trial
of Rogers ; and the more recent Eng-
lish authorities are against the admis-
sion of such evidence.”’ Referring to
Collier v. Simpson, 5 Car. & P. 73 ;
Cocks v. Purday, 2 Car. & K. 269; 1
Greenl. Ev. § 440, note. See also Lun-
ing v. The State, 1 Chand. 178.

1 Tullis v. Kidd, 12 Ala. 648.

2 This statement is made more from
my general recollection of the cases,
and of my reading of criminal trials,
than from specific authorities.

8 Crim. Law, I. § 469, note par. 11.
In Baxter v. Abbott, 7 Gray, 71, 78,
it was observed by Thomas, J.: “ We
think the settled practice in this com-
monwealth has been to admit the opin-
ion of educated, practising physicians,
upon subjects of medical science. Un-
til quite a recent period, the disease of
insanity has not been made a‘specialty.
That it is now made a special study by
a small number of physicians may be a
good reason for giving to their opinion
greater weight ; but itis not a sufficient
reason for excluding the opinions of
other physicians. It is well known
that various classes of diseases, as those
of the spine, the eye, the ear, the skin,

[392]

have become specialties, especially in
our large cities, where such division of
labor becomes practicable. But this fact
does not render incompetent upon these
subjects the testimony of other physi-
cians, who must necessarily have less
experience. The difference is in the
weight, rather than the competency of
the testimony.” In a late Massachu-
setts case the person offered as an ex-
pert testified that he had been a prac-
tising physician for thirty years ; “ that
he had made the subject of mental dis-
ease a study, but not a special study;
that_he had considered the matter only
so far, in his general practice, as to de-
termine whether a patient was in- such
a condition of mind as to require treat-
ment for insanity, and if he was, he
had been accustomed to call in the ser-
vices of a physician who had made the
subject of insanity a special study,” &c.
Thereupon the witness was rejected as
an expert to testify on a hypothetical
case stated, “on the ground that, though
the witness might give his opinion of
the defendant's mind so far as he could
testify from his personal observation, he
was not shown to be competent to ex-: °
press an opinion as an expert on mat-
ters not within his own knowledge, but
hypothetically submitted to him.” Com-
monwealth v. Rich, 14 Gray, 335, 336,
337.
CHAP. XXXII] INSANITY. § 544

scientific witness, who has a competent knowledge of the facts
involved in the case on which he speaks, affords essential aid
to courts and juries, that of unskilful pretenders, quacks, and
mountebanks, who, at times, assume the character of experts,

not unfrequently serves to becloud, and lead to erroneous
conclusions.” !

1 Rice, J. in Heald v. Thing, 45 Maine, 392, 398. And see the observation in
Commonwealth v. Rogers, 7 Met. 500.
: [ 393}
§ 546 SOME SPECIFIC ISSUES. _ [Boo v.

CHAPTER XXXIV.
THE ACCESSORY AND THE LIKE.

§ 545. Says Starkie: “In treason, petit larceny and mis-
demeanors below felony, the distinction between principals
and accessories is not admitted ; and all advisers, contrivers,
and procurers are equally principals with those who commit
the offence, though they be absent at the time of its commis-
sion ; and in such cases it seems to be a general rule, that all
such principals may be charged to have committed the offence
jointly, provided the nature of the offence admit of such par-
ticipation.” 1 This doctrine, it is observed, embraces those
who, if the crime were felony, would be principals of the first
degree, principals of the second degree, and accessories before
the fact. “But,” he adds, ‘ where a person becomes a trai-
tor by harboring and receiving another who has committed
treason, the indictment must be specially framed for the re-
ceipt, and not for the principal ‘treason.”* Therefore those
who, in felony, would be accessories after the fact, are, in
treason and misdemeanors, not to be charged as doing the
criminal acts jointly with their principals, but the indictment
is to be specially framed. These hints, taken in connection
with the discussions to be found in the first volume of the
author’s work on the Criminal Law, will suffice for this double
class of cases.

§ 546. In felony, as we have also seen elsewhere,® the in-
dictment need not, in its form, distinguish between principals
of the first and of the second degree ; the same rules applying
here as in misdemeanor and in treason. The doctrine is by
Starkie* stated as follows: “ Where A and B are present,

11 Stark, Crim. Pl. 2d ed. 81; Crim. ? Tb. referring to Foster, 345.
Law, I. § 622 - 629. See also Common- 8 Crim. Law, I. § 596.

wealth v. Gannett, 1 Allen, 7; Thomp- 41 Stark. Crim. Pl. 2d ed. 81, 82.
son v, The State, 5 Humph. 138,

[394 ]
CHAP. XXXIV. ] THE ACCESSORY, ETC. § 547

and A commits an offence in which B aids and assists him,
the indictment may either allege the matter according to the
fact, or charge them both as principals in the first degree ;1
for the act of one is the act of the other.?, And, upon such
an indictment, B, who was present aiding and abetting, may
be convicted, though A is acquitted.2 So A and B, if present
aiding and abetting, may be convicted, though C, a person
not named in the indictment, committed the act. Again,
if an indictment for murder charges that A gave the mortal
stroke, and that B was present aiding and abetting, both A
and B may be convicted, though it turn out that B struck the
blow, and that A was present aiding and abetting. To go
one step further, upon a similar indictment, charging A as a
principal in the first degree, and B as present aiding and
abetting, B may be convicted though A be acquitted.” ®

§ 547. There are in some of the States statutes by force
of which the doctrines of the last section are extended to the
accessories before the fact in felony, the same as, in the sec-
tion before the last, we saw that they extend, at the common
law, to the procurers of treason and misdemeanor. Thus,
in Illinois, it is provided that the accessory before the fact
“shall be deemed and considered as principal, and punished
accordingly”; and, by donstruction, if one is indicted as a
principal, and the proof shows him to have been an accessory
before the fact, he may be convicted. Said the court: “ All
are principals, and, as such, should be indicted and punished.
Indeed they must be indicted as principals, or not at all, for
they are declared by the act to be principals.” Yet it was
added: “ There is no doubt but that the pleader may, if he
choose, and perhaps it would be advisable to, describe the
circumstances of the offence as they actually transpired, as it

1 Foster, 351, 425; 2 Hawk. P. C. 4 Rex v. Bortwick, 1 Doug. 207; J,

c. 23, § 76; 2 Hale P.C. 344, Kel. 109 ; Saund. 109.
29 Hawk. P. C.c. 23,§ 76; Young 5 Benson wv. Offley, 2 Show, 510, 3
v. Rex, 3 T. R. 98, 105. Mod. 121; Foster, 351; 1 Hale P. C.

8 Foster, 351 ; 1 Hale P. C. 437,463; 437, 463; 2 Hale P. C. 344, 345.
2 Hale P. C. 185, 292, 344, 345; 2 ® Reg. v. Wallis, 1 Salk, 334: 1
Hawk. P. C. c. 46, § 195; 9 Co.67; Hawk. P. C. c. 31, § 46,47; Rex v.
The State v. Phillips, 24 Misso. 475. Taylor, 1 Leach, 4th ed. 360. See

[ 395 }
[BOOK Vv.

§ 547 SOME SPECIFIC ISSUES.

is in an indictment against an accessory before or at the fact;
but, if the stating part of the indictment: be in that way, it
should conclude as for murder, for that is really the offence of
which the party is guilty, if at all.” In many of the other
States, there are statutes more or less resembling this Ilinois
one, and intended to effect the same general result ; but they
are not all construed in the same way. It is safest, therefore,
for the pleader, in the absence of decisions in his own State,
to draw the indictment, as far as convenient, upon the special
facts, at the same time adding such words as bring the case

within the statute.?

Crim. Law, I. § 596 ; People v. Bearss,
10 Cal. 68; The State v. Davis, 29
Misso. 391 ; Rex v. Downing, 1 Den.
C. C. 52, 1 Cox C. C.. 156, 2 Car. &
K. 382; Rex v. Culkin, 5 Car. & P.
Tal,

1 Baxter v. People, 3 Gilman, 368,
381, 382. It is so also in California.
People v. Davidson, 5 Cal. 133 ; and in
Iowa, substantially, Bonsell v. United
States, 1 Greene, Iowa, 111.

2 Thus, in Michigan, the distinction
between principal and accessory before
the fact, and between principals of the
first and second degrees, having been
by statute abrogated in all cases of fel-
ony, it was deemed to follow, that, when
by the statute creating the principal of-
fence, or by the existing common law,
only persons of a certain class, or stand-
ing in a certain relation, are competent
to commit such principal offence, an in-
dictment against aiders and abettors not
of this class must be under this section,
and set out the aiding and abetting, in
which alone the crime consists; and
where the offence is not so confined,
semble, a like form of indictment is safer
and better. Said Christiancy, J. : The
act [1835, § 19] provides, that all per-
sons concerned in the commission: of a
felony, whether they direttly commit the
act constituting offence or aid and
abet in its commission, though not pres-
ent may hereafter be indicted, tried, and

[396]

punished as principals, as in the case
of a misdemeanor. This, then, clearly
renders all aiding and abetting in fel-
ony, though by persons not present,
criminal, and prescribes the punishment,
as in the case of the principal. And
under this section, such aider and abet-
tor may be convicted and punished,
though not sustaining the relation ne-
cessary to bring him within the descrip-
tion of a principal offender under sec-
tion 31, chapter 153. But to bring such
a person within this section (19), he
must be indicted under it, since it is the
only law which renders him criminal ;
and, as the offence in such a case con-
sists “solely in the aiding and abetting,
these circumstances must be alleged in
the indictment, or the offence does not
appear...., In cases of this kind, then,
the provision of this section, that aiders
and abettors may be indicted ‘ as prin-
cipals,’ cannot be construed to mean
that they may be indicted as having di-
rectly committed the principal offence,
in the commission of which they have
aided and abetted only ; especially, ina
case like the present, where, if the de-
fendant had directly committed the very
act constituting the offence, he would
not be guilty. It can only receive this

‘construction, if at all, in those cases,

where: it was legally possible for the de-

fendant to commit directly the principal

offence.” Shannon v, People, 5 Mich.
§
CHAP. XXXIV.] ‘THE ACCESSORY, ETC. § 548

:-§.548. But even in those cases in which the law is settled

that the procurer of the act may be charged asthe doer, and
in indictments against. principals of the second degree, the

pleader may sometimes deem it. practically advisable, follow-
ing the hint .given by Powell, J., as already quoted, to.adapt
the indictment to the understandings of the ‘lay gents” who
are to be.the jurors, and lay the matter specially. When the
indictment is against two persons, one of whom is principal, of

-the first degree, and the other is principal of the second de-

gree, and the pleader wishes to charge the latter specially, the

form, as given by Archbold, is as follows: “ After stating the

offence of the principal in the first. degree, and immediately
before the conclusion of the indictment, charge the principal
in the second degree, thus : —

“ And the jurors aforesaid, upon their oath aforesaid, do further present,

. that J. W., &c., on the day and year aforesaid, felonionsly was present, aid-

ing, abetting, and assisting the said J. S. the [felony and larceny] aforesaid
to do and commit, against the peace,” &c.

The reader, therefore, perceives, that the charge against the

-principal of the second degree is not put into a count by
itself; but it constitutes a part of the same count with the
charge against the principal of the first degree.’

71, 86, 88. As to indictments pursuant
to the statute in Maine, see The State
v., Ricker, 29 Maine, 84. See also

. Thompson v. Commonwealth, 1 Met.

Ky. 13; Reg. v. Manning, 2 Car. & K.

.908,, note.

1. Ante, § 56.

2 Archb, Pl. & Ev. 13th Lond. ed. 797...

% Therefore an indictment under a
Statute for a misdemeanor, as well..as

., for a felony, is good, if ina single count
ig. first sets out the offence of. the princi-

pal of the first degree, then. proceeds
to state the presence and aiding, and
abetting of the principal of the second

-, degree, and concludes against the form

of the statute; though there is no such
separate conclusion as to the offence of
the principal of the first degree. Rex
v. Nelmes, 6 Car. & P. 347. , In 2 Chit.
Crim. Law, 4, 5, the reader will find an

VOL. I. 34

indictment for murder, against principals
of the two degrees, drawn in a slightly
different manner, but in the main in
this special way. It first names both
defendants ; then charges, that they,
“then and there being, feloniously and
wilfully and of their malice aforethought
did make an assault” ; next, it describes
the acts done by the principal of the
first degree, charging them against him
only ; lastly, it proceeds : “ of which said

mortal wound the said A. B. did then

and there instantly die; and that the

said E. F. [the principal of the second

degree], then and there, feloniously, wil-
fully, and of his malice aforethought,
was present, aiding, helping, abetting,
comforting, assisting, and maintaining

the said C. D. [the principal of the first

degree].in.the felony and murder afore-

. said, in, manner and form aforesaid, to

[397]
§ 550 ‘SOME SPECIFIC ISSUES. [BOOK v.
§ 549. This form of the indictment carries the idea of lay-
ing the matter specially as far as it is practically prudent for
the pleader to go.1 For instance, to constitute one a princi-
pal of the second degree, he must be, in the language of this
indictment, as the law expounds it, ‘‘ present”; but there is
legally a constructive as well as an actual presence, and in
some circumstances a man may be a principal of the second
degree, though he is not “ present” in the sense in which the
word would be understood by “lay gents.” ? Still this form
of the indictment is legally sufficient for this class of cases.? .
§ 550. When the indictment is against the accessory be-
fore the fact in cases of felony, though he may be joined with
the principal, the charge against him must be special. Chitty
furnishes the following: ‘After framing the indictment

do and commit. And the jurors afore-
said, upon their oath aforesaid, do say,
that the said C. D. and E. F. him the
said A. B., in manner and form afore-
said, feloniously, wilfully, and of their
malice aforethought did kill and mur-
der, against the peace of our lord the
king, his crown and dignity.” See also
The State v. Pile, 5 Ala. 72. Where, in
an indictment for aiding, &c., in the
commission of a murder, there was no
place alleged to the averment of the aid-
_ing, &c., but time and place were alleg-
ed to the assault, stroke, and death, and
it was added that the prisoners were
then present aiding and abetting, it was
held, that the venue was sufficiently laid.
The State v. Taylor, 21 Misso. 477.
For several interesting points, see Hey-
don’s case, 4 Co. 41a. According to
this case, if the indictment charges, that
the principal of the first degree gave the
mortal blow on a day named, and that
the death occurred on a subsequent day
named ; then charges, that, on the first-
mentioned day, the principals of the
second degree were present at the “ fel-
ony and murder” as thus recited, &c. ;
the indictment is “ repugnant and in-
sufficient,’”’ as to the principles of the

second degree; ‘‘ for no felony wascom- 79

[398]

mitted till the death, and none shall be
adjudged a felon by relation.” And the
judges said, “they had often adjudged
indictments insufficient, when the stroke
is one day and the death another, and
the jury concluded the murder or homi-
cide to be committed the first day ; but
they said that in the casc at bar the in-
dictment should be, that the said pra-*
sentes et abettantes fuerunt preesentes, aux-
iliantes, §c., ad feloniam et murdrum
pred. in forma pred. faciend.” There
may be doubt, whether all courts, at
the present day, would hold thus. See
Crim. Law, I. § 88 ; ante, §67. In an
English case before Patterson, J., the
indictment which was for manslaughter
charged, that A gave the deceased divers
mortal blows at P, in the county of M,
and that the deceased languished and
died at D, in the county of K; and that
the prisoner was then and there aiding
in the commission of the felony ; and it
was held, that the indictment was good,
and that the word “ there ” referred to
P, in the county of M. Rex v. Har-
grave, 5 Car. & P. 170.

1 Ante, § 56-58.

2 Crim. Law, I. § 601.

Archb. Pl. & Ev. 13th Lond. ed.
CHAP. XXXIV.] THE ACCESSORY, ETC.

§ 550
against the principal in the usual form, at the foot proceed as
follows : —

“ And the jurors aforesaid, upon their oath aforesaid, do further present,
that J. K., late of, &c., laborer, before the said felony [or ‘ felony and mur-
der,’ or ‘ burglary,’ &c., as the case is] was committed in form aforesaid, to
wit, on, &c., with force and arms, at, &c., did unlawfully and feloniously
counsel, aid, abet, and procure [or, if for murder, ‘ did feloniously and ma-
liciously incite, move, procure, aid, counsel, hire, and command ?'] the said
C. D. to do and commit the said felony [or ‘ the said felony and murder’ ]
in manner and form aforesaid, against the peace of our said lord the king,

his crown, and dignity.” !

12 Chit. Crim. Law, 5. He ob-
serves: “The accessory cannot be con-
victed on this indictment, if it appears
that he was present, aiding and abet-
ting. Rex v. Gordon, 1 Leach, 4th ed.
515.” The reader perceives, that his
presence makes him a principal, and as
such he should be indicted. For an-
other form, see Archb. Pl. & Ev. 13th
Lond. ed. 802. As to the method of
proceeding in Georgia, see Bulloch v.
The State, 10 Ga. 47. In an indict-
ment against an accessory before the
fact, in felony, it is not necessary to set
forth the conviction or execution of the
principal. The State v. Crank, 2 Bai-
ley, 66; The State v. Sims, 2 Bailey,
29. Anaccessory may be indicted with-
out the conviction of the principal be-
ing averred, but his guilt must be aver-
red; and, where he is, tried separately
from the principal, the evidence must
show that his guilt was legally estab-
lished, before the trial of the accessory.
Holmes v. Commonwealth, 1 Casey, 221.
Where the first two counts in an indict-
ment charge the felony of the principal,
and a third charges a person as accesso-
ry to “said” felony, the word “ said ”
will be taken to refer to the second
count, and therefore the count is not bad
for uncertainty. Sampson v. Common-
wealth, 5 Watts & S. 385. If an in-
dictment alleges a burglariousentry with
intent to steal, and then and there steal-
ing, it is only the offence of burglary ;
and a count charging one as accesso-

ry to “‘the offence aforesaid,” is good.
Stoops v. Commonwealth, 7S.& R.491.
In New Jersey, a statute “ provides,”
says the court, “that, if any person
shall cause, counsel, command, or pro-
cure to be uttered or published as true
any bank note, knowing the same to be
false, with intent to defraud any person,”
&c. And it was held, that an indict-
ment which alleges a conviction for the
passing of a counterfeit bill, and then
charges that the defendant did feloni-
ously, &c., incite, move, &c., the con-
victed person to the commission of said
felony, is defective in not setting out
any guilty knowledge, or any intent to
defraud, on the part of the defendant.
The State v. Seran, 4 Dutcher, 519.
Though, in Indiana, the accessory before
the fact may by statute be convicted be-
fore the principal, yet the offence of the
principal must be alleged. Ulmer v.
The State, 14 Ind. 52. In New Hamp-
shire, prior to the revision of the stat-
utes, in' 1842, the proceedings, upon the
trial and indictment of principal and ac-
cessory to a felony, were governed by
the rules of the old common law, as
modified by the statute 1 Anne, c. 9;
and the accessory could be indicted and
tried with the principal, but could not
be tried separately until the principal
had been convicted. Rev. Sts. c. 221,
§ 1, which enacts that the accessory may
be tried either before or after the princi-
pal, does not change the rule of the
common law, that he may be indicted

[399]
§551 SOME SPECIFIC ISSUES. [BOOK v.

§ 551. In consequence of the full discussion of the topics
connected with this chapter, in the work on the Criminal
Law, it will not be necessary to add anything here, except the
form of the indictment against the accessory after the fact,
where he is’ joined with the principal. Chitty gives us the
following : “‘ After framing the indictment against the princi-
pal in the usual form, at the foot proceed as follows : —

“ And the jurors aforesaid, upon their oath aforésaid, do further present,
that J. K., late of, &¢., laborer, well knowing the said C. D. to have done
and committed the said felony and burglary [according to the fact] in form:
aforesaid, afterwards, to wit, on, &c., with force and arms, at, &c., him the

said C. D. did feloniously receive, harbor, and maintain, against the peace
of our said lord the king, his crown, and dignity.” ?

and tried with him. The State v. York, Rex v. Thompson, 2 Lev. 208, 3 Keb.
37 N. H. 175. 375, 674.
1 2 Chit. Crim. Law, 5. And see

[400]
CHAP. XXxv.] ATTEMPT. § 553

CHAPTER XXXV.
ATTEMPT.

§ 552. In the work on the Criminal Law,! the subject of
attempt was pretty fully considered, leaving for us here but
little except the inquiry into the form of the indictment.
Yet this is an inquiry which, like almost all others con-
nected with the doctrine of attempt, leads us into the region
of the unknown and the disputed more than most other ques-
tions pertaining to the criminal law. Let us travel, therefore,-
somewhat circumspectly through this chapter ; assured that,
at its close, we shall find ourselves profited by the careful sur-
vey, while a hasty view would have brought to us absolutely
nothing of practical value.

§ 553. The subject of attempt divides itself into many
branches ; and, as respects the indictment, these branches are
in some instances quite distinguishable from one another.
One of these branches relates to what is termed solicitation
to crime. Thus, if a man wishes to have a crime committed,
and endeavors to persuade another man to perpetrate the act,
but the other declines, the former of the two becomes thereby
guilty of the criminal attempt at perpetrating the ulterior
crime.2 Now, it was never supposed to be sufficient in an in-
dictment for this kind of attempt, simply to charge that the
defendant “ attempted” to commit the ulterior crime. The
charge must be specific, pointing out the particular thing
constituting the attempt; namely, that the defendant “ did
solicit” the person whom the indictment names, to commit
the crime which it specifies. The following is, in substance,
the form furnished by Archbold : —

‘« That J. S., &c., on, &c., at, &c., falsely, wickedly, and unlawfully did

1 Crim. Law, I. § 657 et seq.
2 Crim. Law, I. § 689, 690; People v. Bush, 4 Hill, N. Y. 183.

34* [401]
§ 555 SOME SPECIFIC ISSUES. [BOOK v.

solicit and incite one J. W., a servant of one J. N., to take, embezzle, and
steal a large quantity, to wit, one hundred pounds’ weight of cotton twist,
of the goods and chattels of his master, the said J. N.; to the great damage:
of the said J. N.; to the evil example of all others, in the like case offend-
ing, and against the peace of our lady the Queen, her crown, and dig-
nity.”?

§ 554. Turning to Starkie, we find the following :* “With
respect to the description of the solicitation or endeavor, it
seems that general words are sufficient ; because the endeay-
or, attempt, or solicitation, is, in general, made up of a num-
ber of petty circumstances, which cannot be set out on the
record. Therefore, though some of the old indictments for
endeavoring to suborn state an offer of money, yet it has
been deemed sufficient to charge an endeavor to suborn gen-
erally, without stating the means.* So in an indictment for
endeavoring to keep away a witness.””® Jn like manner, in
an indictment for an attempt to bribe an officer, by a corrupt
offer of money, to summon such jurors as the defendant
should nominate, it is not necessary to mention the specific

* sum of money offered.§

§ 555. Thus we have seen, that the word solicit conveys,

of its own force, a sufficient description of the act which en-

1 Archb. Pl. & Ev. 13th Lond. ed.
805. This indictment substantially fol-

ness tocommit. The State v. Holding,
1 McCord, 31, Johnson, J. observing :

lows the form in Rex ». Higgins, 2
East, 5, which was deemed to be good ;
though the principal question was,
whether the matter itself was indicta-
ble. In People v. Bush, 4 Hill, N. Y.
133, “the fourth count charged,” says
the report, “ that the defendant, on, &c.,
at, &c., falsely, wickedly, &c., did solicit
and incite one Kinney, unlawfully, felo-
niously, &c., in the night time to set
fire to a certain barn of said Sheldon,
situate, &c., with intent to injure said
Sheldon, against the peace of the peo-
ple,” &c. Held sufficient.

2 1 Stark. Crim. Pl. 2d ed. 146.

®§ Trem. P. C. 168, 174.

* So also the indictment need not
specify the particular perjury which the
defendant attempted to suborn the wit-

[402]

“ The fact to which the defendant wish-
ed the witness to swear, he was prevent-
ed from disclosing by the indignant re-
pulse which the witness gave him, and
did not therefore enter into the case ;
and, if it had, it is only a circumstance
going to show the quo animo with which
the bribe was offered, and any other cir-
cumstances producing the same convic-
tion, as to the intention, are fully suffi-
cient. The indictment in this case does
charge the act to have been done with
an intention to prevent the course of
justice; and, on the principle establish-
ed, it is an indictable offence.” p. 34.

® Fitzg. 263. See also 2 Ld. Raym.
1377. 7

& Commonwealth v, Chapman, 1 Va.
Cas, 138.
CHAP. XXXV.] ATTEMPT. § 556

ters into this form of the attempt. There are two other
words, namely, “endeavor to seduce,” which, when found
joined in a statute, have been held to be sufficiently answered
in the indictment by the use simply of the words themselves,
without further enlargement of the allegation. Thus, when,
by Stat. 87 Geo. 3, c. 70, a punishment was provided for
“‘any person who shall maliciously and advisedly endeavor to
seduce any person or persons serving in his majesty’s forces,
by sea or land, from his or their duty and allegiance to his
majesty, or, &., shall,” &c.; an indictment in the following
form was held sufficiently to set out the statutory offence : —

That the defendant, “on, &c., at, &c., feloniously did maliciously and ad-
visedly endeavor to seduce Matthew Lowe, he the said Matthew Lowe then
and there being a person serving in his majesty’s forces by land, from his
duty and allegiance to his said majesty.”

Said Perryn, B.: “ An endeavor to seduce, to entice, and
to stir up, though a conclusion from an infinite variety of
facts and circumstances, is but a conclusion of fact, is itself a
fact, admitting of no definition or description. The fact is
fully expressed by the mere force of the word ‘endeavor,’ and
can only be expressed by that word; like the words ‘con-
spire, maintain, aid and abet,’ which, in indictments for
the offences of conspiracy, maintenance, &c., do sufficiently
express the offences charged in the indictment, without cir-
cumlocution, and without showing in what manner and by
what means the conspiracy, maintenance, aiding and abetting,
&c., were produced.” ! The word endeavor, the reader will
notice, is, when used singly, of a signification approximating
very nearly the word attempt; but, in this statute, it-is joined
to and limited by the other word “ seduce,” so that the two
are in meaning similar to the words “ solicit and incite,’ con-
sidered in the foregoing sections.

§ 556. Having thus considered those forms of attempt _
which consist in soliciting, enticing, and endeavoring to se-
duce, we come next to those attempts which are constituted
by the doing of a particular criminal act, with the intent to

1 Rex v. Fuller, 1 B. & P. 180, 186, 2 Leach, 4th ed. 790; Winsmore »,
Greenbank, Willes, 577, 583 and note.
[403]
§ 557 SOME SPECIFIC ISSUES. [BOOK Vv.

accomplish some ulterior and moré aggravated wrong. In-
dictnients of this sort are generally tinder statutes. For illus-
tration, there is the statutory assault with the intent to kill or
to murder; and an indictment for this offence, drawn sub-
stantially in the following form, has been held to be good ;
also it has been held to be bad, as not sufficiently setting out
the facts constituting the assault : —

“ That A. B., of, &c., at, &¢., in and upon one Charles P. Slater, in the
peace of God and the said State then and there being, did make an assault;
with intent him, the said Charles P. Slater, then and there felonionsly, wil-
fully, and of his malice aforethought:to kill and murder.” !

§ 557. Whichever view we take of the sufficiency of this
form of the indictment, we see from it, that, at least, the in-
dictment in this class of cases must contain, first, a complete
and technical allegation of the minor offence, which was in
fact committed ;? and, secondly, superadded to this, an alle-
gation of the ulterior intent to commit the heavier crime.’
And there is at least one very forcible reason for considering
that this particular form is not sufficient ; namely, it is not
probable the court would deem every act which in law
amounts to an assault, to be such an assault as, coupled with
the intent to murder, would constitute the statutory crime ;
though the terms of the statute are general, making no men-
tion of any exception. Therefore, to conform to the statute

1 Held in Maryland to be sufficient.
The State v. Dent, 3 Gill& J. 8. And
in Alabama to be insufficient, the court
expressly dissenting from the Mary-
land decision. Beasley v. The State, 18
‘Ala. 535, Dargan, C. J. saying: “ As
the assault itself must consist in the com-
mission of certain acts, we cannot hold
that it is unnecessary to allege them,
without violating one of the first prin-
ciples of pleading.” p. 539. Reaffirmed
in Trexler ». The State, 19 Ala. 21,
Dargan, C.J. adding: “ Butif the facts
constituting the assault are stated, and
then it is averred that the assault was
committed with the intent to murder,
the indictment would be good under the
statute.” p. 22.

[404]

2 J take it for granted, that this form
of the indictment contains all the alle-
gations strictly necessary in an indict-
ment for a simple assault at the com-
mon law, though it is usual to add
words which cover also a battery. And
see Conolly v. People, 3 Scam. 474. It
was expressly so held in Bloomer »v.
The State, 3 Sneed, 66. See also post,
§ 562, 563. LI infer, however, from the
Alabama case, that, if the indictment
had been for a simple assault without a
battery, it would have been held, in this
form, ‘ill.

® And see The State ». Malcolm, 8
Iowa, 413; Cokely v. The State, 4
Iowa, 477.

* See ante, § 369 ~ 374,
CHAP. XXXvV.] ATTEMPT.

§:558 -

as it is construed, and to show affirmatively that the particu-
lar offence had been committed, the particulars of the assault.
might well be required to be stated: And where the allegation:
was, that the defendant, “ with a certain large knife, at: and
against the body of the said. A did cut, thrust, and stab, with,
the intent the said A then and there feloniously, wilfully, and.
of malice aforethought to kill and murder”; the indictment,
was held to be sufficient.! So also was an indictment charg-
ing, that the defendant did make a “violent and, aggravated.
assault with a pistol, and did then present the said pistol at,
said G. W. T., and did then and there shoot at said G. W. T.
with intent to kill, &c., contrary to the form of the statute.’’?
§ 558. The pleader, also, should so draw these indictments,.
when they are founded on statutes, as to conform to the terms
of the statutes. Thus, where the New York statute provided.
a particular punishment for “‘ every person who shall be con-
victed of any assault and battery upon another, by means of.
any deadly weapon, or by such other means or force as was
likely to produce death, with intent to kill”; and an indict-
ment upon the statute charged an assault and battery with

1 The State v. Bullock, 13 Ala. 413.

2 The State v. Lutterloh, 22 Texas,
210. In The State v. Croft, 15 Texas,
575, the indictment, says the report, but
without marks of quotation, was as fol-
lows’: ‘‘that the defendant, on, &c., at,
&c., with a certain pistol of the value of
five dollars, then and there loaded and
charged with gunpowder and one leaden
bullet, which said pistol, he, the said Wil-
liam Croft, in his right hand then and
there held, in and upon one D. H. Law-
rence, whose Christian name is to the
grand jurors aforesaid unknown, in the
peace of God and the State of Texas
then and there living, wilfully, felonious:
ly, and of malice aforethought, did make
an assault, with intent him the said D.
H. Lawrence then and there wilfully,
feloniously, and of his malice afore-
thought to kill and murder.” To this
it was objected, first, that the manner
in which the pistol was used, or attempt-

ed to be used, was not mentioned ; sec-
ondly, that the intent to kill was al-
leged’ vaguely. But the indictment
was held to be good. See: also The
State v. Cryer, 20 Ark. 64 ; Cronkhite v.
The State, 11 Ind.307 ; Nixon v. People,
2 Scam. 267; People v. Urias, 12 Cal.
825; The State v. Munco, 12 La. Ag.
625. An indictment for an assault,
with intent to commit a felony, must
specify the particular felony intended.
The State v. Hailstock, 2 Blackf. 257,
If it is for an assault with intent to
kill, it must mention the name of the
person meant to be killed. A charge
“ with intent, in so striking and beating
him.the said J. W. with the club, &c.,
feloniously, &c., to kill and murder,
against, &c.” is bad for uncertainty ; J.
W. being only named as the person as-
saulted. The. State.v. Patrick, 3 Wis;
812.
3 Ante, §:356 et seq:
[405]
§ 558 SOME SPECIFIC ISSUES. [BOOK V.

the intent to kill, not adding that it was by means of a dead-
ly weapon, or by any other such means as were likely to pro-
duce death ; the allegation was held to be insufficient... And
where the enactment is, that an assault and battery, made
with express malice and with the intent to kill, shall be pun-
ished in a particular way, it is not sufficient for the indict-
ment to charge, “of his malice aforethought”; for, by a
general rule, all indictments upon statutes must state all the
circumstances constituting the definition of the crime, and
must pursue the technical words used in the statute? In
like manner it has been held, that, where the statute uses the
word “ intent,” — as, “with intent to kill,’ — the indictment
is defective if it charges the act to have been done with the
“attempt”? mentioned; because, when the words of the
statute “are descriptive of the offence, they must be used.” ®
But where the word “intention” was employed in the in-
dictment, instead of the statutory word, “ intent,” the error
was held not to be fatal.4 And a verdict finding the defend-
ant guilty of an assault with “ attempt ”’ has been held to be.
legally equivalent to a verdict of assault with “intent.” Said
the court: “It seems impossible to doubt, that the only dis-
tinction between an intent and an attempt to do a thing is,
that the former implies the purpose only, while the latter im-
plies both the purpose and an actual effort to carry that pur-
pose into execution.”® Since, therefore, the word “attempt”
embraces the full meaning of the word “intent,”’ with some-
thing more, it is not impossible the courts may hereafter hold
it to be an admissible substitute in an indictment.®

1 People v. Davis, 4 Parker C. C. 61. of a legal result.” And see Nugent
And see Rex v. Jackson, 1 Leach, 4th v. The State, 19 Ala. 540.

ed. 267, 1 East P. C. 419; Rex »v.
Pegge, 1 East P. C. 420.

2 Anthony v. The State, 13 Sm. & M.
263. See also Jennings v. The State,
9 Misso. 852; The State v. Stewart,
29 Misso. 419.

8 The State v. Ross, 25 Misso. 426 ;
The State v. Marshall, 14 Ala. 411. In
this latter case, the following reason
also is mentioned : ‘“ To charge one with
an attempt to murder is the mere charge

[406]

4 The State v. Tom, 2 Jones, N. C.
414, Strictly, the decision was, that,
if the indictment was defective from
this cause, the error was cured by force
of the statute of 1811; but it seems to
have been deemed good.

5 Prince v. The State, 35 Ala. 367,
369, opinion by R. W. Walker, J.

& Ante, § 360 et seq. Andsee John-
son v. The State, 14 Ga. 55.
CHAP. XXXV.] ATTEMPT. § 560

§ 559. The English statute 9 Geo. 4, c. 31, § 25, provided
a particular punishment for persons who should be convicted
“of any assault with intent to commit felony” ;! and, rape
being felony, we have in Mr. Archbold’s book the following
form of an indictment for assault with intent to commit a
rape: —

That, &c., &c., “in and upon one A.N,, in the peace of God and our lady
the Queen then [and there] being, did make an assault, and her the said A,
N. did then [and there] beat, wound, and ill treat, with intent her the said
A. N. violently and against her will feloniously to ravish and carnally
know ; and other wrongs to the said A. N. did; to the great damage of the
said A. N., against the form of the statute in such case made and provided,
and against the peace of our lady the Queen, her crown, and dignity.” *

§ 560. There is no reason to suppose, that, in an indict-
ment for this form of the attempt to commit a rape, it is ne-
cessary to specify the particulars of the assault. But the
allegation of the intent should be such as to show, that the
offence intended to be committed would amount in law to
rape. Therefore, where the indictment charged an assault;
then added, “‘ with intent to ravish and carnally know the
said Margaret Bolen,” setting out also a battery; it was held
to be insufficient. The court observed: “ This is a good in-
dictment for assault and battery, but nothing more.” The
exception taken to it and sustained was, that it did not state
the ravishment to have been intended to be done “ either fe-
loniously, unlawfully, or against the will of the said Margaret
Bolen.” ? So where the statute was, that “every person who
shall, &c., abuse, in the attempt to carnally know, any female
child under the age of ten years, shall,” &o.; and the indict-
ment was, that the defendant, “in and upon one H. 8. (she,
the said H. S., then and there being a female child under the
age of ten years), feloniously did make an assault, and her,
the said H. S., then and there feloniously did abuse, in the at-
tempt carnally to know,’ omitting to add the words, “her the
said H.8.”; it was held to be defective, in not specifying,

1 Superseded by Stat. 24 & 25 Vict. 2 Archb. Pl. & Ev. 13th Lond. ed.
c. 94, § 38, the words of which are, 589.

‘Whosoever shall assault any person § % Mears v. Commonwealth, 2 Grant,

with intent to commit felony.” Pa, 385,
[407]
§ 563 SOME ‘SPECIFIC ISSUES. [BOOK Vv.

with sufficient certainty and precision, upon whom the attempt

at carnal knowledge: was intended to be executed. Whether,
swhen the attempt is to commit what is technically known in
‘the law as rape, it is not sufficient to say, “ with intent, upon
-the body of her the said A. B., to commit the crime of rape,”
is a question which the author purposely omits here to: dis-
cuss.”

.§ 561. In these cases also, as in others, the indictment

‘must follow any descriptive matter which may be found in
‘the statute. Thus, where the statutory words were, “ any
slave or slaves who shall commit an assault and battery upon
any free white person, with an intent to commit murder in
the first degree, or a rape upon a free white woman, shall, on
conviction, be punished with death by hanging” ; an indict-
ment, omitting to allege that the person assaulted was white,
was held to be insufficient.3

§ 562. The indictment for assault with intent to rob, as
given by Mr. Archbold, is as follows : —

. That, &c., “in and upon one J. N., in the peace of God and of our lady the
Queen then [and there] being, feloniously did make an assault, with intent
the moneys, goods, and chattels of the said J. N., from the person and against
the will of him the said J. N., feloniously and violently to steal, take, and

“carry away ; against,” &c.*

§ 563. In Illinois, the following form of indictment for this
offence was held to be sufficient ; but it is plainly desirable
that it should contain also the words which are here added in

' brackets : —

1 Nugent v. The State, 19 Ala. 540.
Where the. crime intended is not the
statutory crime here mentioned, but rape,
‘it is not necessary to specify the age of

the female assaulted... Bowles v. The
, State, 7 Ohio, 2d. pt. 243.

2 See, on this question, however,
post, § 563.

8 Grandison v, The State, 2 Humph.
451; Elijah v. The State, 2 Humph.
455; Henry v. The State. 4 Humph.
270; Pleasant v. The State, 13 Ark.
360; Nelson v. The State, 6 Ala. 394.
See Commonwealth v. Bennet, 2. Va.

[408]

Cas. 235; Williams v. The ‘State,
Wright, Ohio, 42. |

* Archb. Crim. Pl. & Ev. 13th Lond.
ed. 357. In a case before Patteson, J,
an indictment was held good which
charged, that the defendant, in and upon
R. B,, feloniously did make an assault,
“with intent the moneys, goods, and
chattels of the said.R. B., from the per-
son and against the will of him the said
R. B. then and there feloniously and
violently to rob, steal, take, and carry
away, against the form of the statute,”
&c. Reg.» Huxley, Car. & M. 596.
CHAP. XXXV.] ATTEMPT. § 565

That, &c., “in and upon the person of G. H. G., in the peace of the peo-
ple of the State of Illinois then and there being, with force and arms, did
make an assault with an intent then and there wilfully and unlawfully and
feloniously to commit a robbery ” ae goods and chattels from the person of
the said G. H. G.]

And Wilson, CO. J.,in giving the opinion of the court, said:
“ The objection that the subject-matter of the intended rob-
bery is not stated, is without foundation. The nature of the
charge that the defendant intended to commit a robbery, im-
plies that he intended to take something, the taking of which
would constitute the crime of robbery. As the robbery was
not committed, it was impossible to know of what it was in-
tended ; and, had it been known, it was unnecessary to name
it, as the offence would have been the same, let the thing in-
tended to have been taken have been what it might.””}

§ 564. These illustrations will sufficiently explain to the
reader the form of the indictment, where the offence consists
in doing a particular criminal thing with the intent to bring
about a still more criminal result. But, at the common law,
any form of attempt to accomplish a criminal result, where
the act which combines with the intent is of sufficient mag-
nitude, and approaches sufficiently near the result which is
meant to be reached, is indictable. And, in the United
States, there are generally to be found statutes affirmative of
this common-law doctrine. Thus, in New York: “ Every per-
son who shall attempt to commit an offence prohibited by law,
and in such attempt shall do any act towards the commission
of such offence, but shall fail in the perpetration thereof, or
shall be prevented or intercepted in executing the same,
shall,” &c.2 And this is the usual form, which is found in
many or most of our States.2 The indictmént appears to be
the same, whether it is nominally drawn upon this statute, or
whether it is strictly at the common law.

§ 565. In a very late English case, the following was
held to be a sufficient indictment for an attempt to steal in a
dwelling-house : —

1 Conolly v. People, 3 Scam. 474, 3 Commonwealth v. Clark, 6 Grat.
478. See ante, § 556, 557 and note. 675; Crim. Law, I. § 675.
2 People v. Bush, 4 Hill, N. ¥. 133.

VOL. I. 35 [409]
§ 566 SOME SPECIFIC ISSUES. [BOOK v.

That the defendant, at, &c., on, &c., “the goods and chattels of Thomas
Roe, in the dwelling-house of the said Thomas Roe, situate in the borough
of Brighton, in the county of Sussex, did attempt feloniously to steal, take,
and carry away, against the peace,” &c.

And with regard to the supposed insufficiency in the de-
scription of the goods meant to be stolen, it was observed :
“Where there is only an attempt, it is not always possible to
say what property the would-be thief meant to steal. The
indictment is sufficiently certain.” !

§ 566. This indictment would, however, in many and per-
haps most of our States, be deemed defective for not describ-
ing the act, which, in combination with the intent, is signified
by the word of compound meaning, “attempt.” Or, to ex-
press the idea in another form, the word “attempt” signifies
both the act, and the intent with which the act is done ;?
therefore, according to what may perhaps be deemed the
American doctrine, since confessedly the indictment must de-
scribe the intent, and the word “attempt” is not alone suffi-
ciently definite and full, so also must it describe the act, the
word “attempt” not being alone adequate for this, more
than for the other. Thus it was held in Connecticut, that an
information for an attempt to steal from a man’s person, by
picking his pocket, must allege both the criminal intent, and

1 1. Reg. » Johnson, 1 Leigh & C. is good, although it does not state whose

489, 490. In another English case, the
following was held tu be good : —

That the defendants, by “ divers false
and fraudulent pretences, unlawfully,
knowingly, and designedly did attempt
and endeavor feloniously to steal, take,
and carry away of and from the said
John Guisford a large sum of money,
to wit, the sum of twenty pounds, of
the moneys of the said John Gaisford.”
Reg. v. Bullock, Dears. 653, 36 Eng.
L. & Eq. 608.

2. An indictment for a misdemeanor,
which charges that the prisoner unlaw-’
fully broke and entered the dwelling-
house of R. P., “ with intent the goods
and chattels in the said dwelling-house
then and there being, then and there fe-
loniously to steal, take, and carry away,”

[410]

goods the prisoner intended to steal.
Reg. v. Lawes, 1 Car. & K. 62. But
where the indictment was, that the pris-
oner ‘‘ did unlawfully attempt and en-
deavor fraudulently, falsely and unlaw-
fally to obtain from the Agricultural
Cattle Insurance Company a large sum
of money, to wit, the sum. of 22/. 10s.,
with intent thereby then and there to
cheat and defraud the said company,
&c. ; it was held to be inadequate for
two reasons : first, it did not sufficiently
specify the nature of the attempt; sec-
ondly, it did not lay the money to be
the property of any one. Reg. v. Marsh,
1 Den. C. C. 505, 3 Cox C. C. 570,
Temp. & M. 192.

2 Ante, § 558.
CHAP. XXXV.] ATTEMPT. § 566

the act done in pursuance of the intent. And where the
words were, “ feloniously did attempt to steal, take, and carry
away from the person of, &c., by picking her pocket,” they
were adjudged to be inadequate on both grounds. Said But-
ler, J.: “Although it has been said by one of the elementary
writers cited, that an attempt need not be set forth with as
much exactness as is required in an indictment for the com-
mission of the offence, it is not true as a general proposition, |
nor applicable to a case like this.” Speaking of the intent,
he observed : “If it be said, that the words ‘attempt to steal’
imply it sufficiently, the conclusive answer is, that they equal-
ly imply an overt act of endeavor, for that is equally an ele-
ment of the attempt; and, if either element of the offence
may be left to implication, both may be, and a general aver-
ment of an attempt to steal, or to rob, or other attempt, would
in such cases be sufficient. This cannot be permitted, in jus-
tice to the accused, nor consistently with the rule, always sub-
stantially adhered to, that the want of a direct allegation of
anything material in the description of the nature, substance,
or manner of the offence, cannot be supplied by intendment or
implication.” Then as to the act: “Nor is the averment of
the overt act sufficient. It is essential that the act of endeav-
or should be intrinsically adapted to effectuate the purpose ;
and, in order that the court and the accused may see that
the act is so adapted, it should be specifically stated. Here
the averment of the act ‘ by picking her pocket’ is uncertain
and equivocal.” The following count, however, was held to
be sufficient : —

“ That, on, &c., at, &c., the said George Wilson and William Marsh, with
force and arms, wilfully and maliciously did make an assault on the person
of a certain woman, whose name and a further description of whom is [are]
to said attorney unknown, and then and there, with like force and arms,
did thrust their hand into the pocket of said woman, with intent, in so do-
ing, the moneys, goods, and chattels of said woman, if any such should then
and there be found in her personal possession, feloniously to take, steal, and
carry away from her person,” &c.?

1 The State v. Wilson, 30 Conn. 500, between the English and American law
503, 504. The reader will here please itself, as held by the courts, on the sub-
consult Crim. Law, I. § 671-676, where ject embraced in these forms of the in-
he will see that there is some difference dictment. ratty
§ 569 SOME SPECIFIC ISSUES. [BOOK v.

§ 567. In like manner, the following indictment for an at-
tempt to maim, was, in Virginia, held to be insufficient :
That the defendant, on, &c., at, &c., “with a certain pistol
then and there loaded with ‘eanpowder and one leaden bul-
let, which he the said Leonard Clark in his right hand then
and there held, then and there did attempt feloniously to
maim, disfigure, disable, and kill Cyrus Ross, of the same
county,” &e. And the reason assigned was, that “the indict-
ment ought to have alleged some act done by the defendant,
of such a nature as to constitute an attempt to commit the
offence mentioned in the indictment.” 4

§ 568. It is not possible to say, with precision, how exten-
sively the doctrines of the last two sections are held in this
country ; probably, in most of the States, the question is still
an open one. In Alabama, where there are statutes some-
what modifying the forms of indictments, an indictment
against a slave, for that he “attempted to commit a rape on
M. C., a white female,” has been held to be good. Said
Stone, J.: The indictment “need not aver how near to its
full accomplishment the attempted rape had been carried.
Having shown that a slave may be guilty of an attempt to
commit a rape on a white female without actually assaulting
her, if we were to go further, and require that the indictment
shall express the particular acts of which the attempt consists,
we should greatly innovate on our present brief and simple
forms of indictment, and introduce a particularity of aver-
ment and description, which would, in many cases, amount
to a denial of justice.” 2 And in New York there is a dic-
tum by Cowen, J., as follows: “ An attempt in any form to
commit an offence is within the statute; and the particular
manner in which the attempt was made need not be pointed
out by the indictment.” @

§ 569. A person may, under some circumstances, by a

1 Commonwealth v. Clark, 6 Grat. Lawson v. The State, 20 Ala. 65;
675, 684. -Sterne v. The State, 20 Ala. 43.

2 Lewis v. The State, 35 Ala. 380, 8 People v. Bush, 4 Hill, N. Y. 133,
390, referring to the form in the Code, 134,
also to Rex v. Fuller, 1 B. & P. 180;

[412]
CHAP. XXXV.] ATTEMPT. § 570

single act, endeavor to accomplish two or more criminal re-
sults. In such a case, there can be no doubt, that, if the in-
dictment sets forth the act, and the intent to commit the two
or more offences, according to the fact, it will not be open to
the objection of duplicity. There is but one attempt, though
the object aimed at is multifarious.

§ 570. These views are all which it is deemed necessary to
present in this connection. They will acquaint the reader
with the principles upon which the indictment for attempt is
drawn, together with something of the details. The rest will
better appear in other connections, particularly in connec-

tion with our discussion of the procedure relating to the sev-
eral substantive crimes.

1 And see Rex v. Fuller, 1 B. & P.180, 2 Leach, 4th ed. 790.
35 * [413]
§ 578 SOME SPECIFIC ISSUES. [BOOK V.

CHAPTER XXXVI.

THE PLEA OF FORMER JEOPARDY.

Sect. 571-573. Introduction.
574, 575. The Plea of Autrefois Convict.
576-583. The Plea of Autrefois Acquit.
584-587. How when neither of these is available,

§ 571. In the work on the Criminal Law,! there was pre-
sented a full view of the constitutional and common-law doc-
trine, according to which a former jeopardy will bar a subse-
quent prosecution for the same offence. There remains for
consideration, however, the procedure by which a defendant
is to avail himself of this provision of law.

§ 572. Since a defendant can, if he will, waive his rights
under this constitutional and common-law provision, it fol-
lows, that, if he would take advantage of a former jeopardy,
he must, in some way which accords with the rules of crimi-
nal law procedure, bring the fact to the attention of the court.
This is regularly done by two pleas in bar, known to the com-
mon law, the one of which is produced when the jeopardy
has resulted in a conviction, and is called the plea of autrefois
convict ; the other of which is brought forward when the
jeopardy has resulted in an acquittal, and is called the plea
of autrefois acquit. A third plea, called the plea of autrefois
attaint, is, as we have seen,® not now available to defendants.

§ 578. It has been the course of all preceding writers to
treat of these several pleas separately ; and, in this respect,
it will be convenient for us to suffer this chapter to follow in
the beaten path. But a prisoner is in legal jeopardy, at least
‘according to the better American doctrine, when the jury is
impanelled and ready to try him on a valid indictment, and

i Crim. Law, I. § 824 et seq. 8 Crim. Law, I. § 898.
2 Crim. Law. I. § 840, 842 et seq.

[414]
CHAP. XXXVL] FORMER JEOPARDY. § 574

there is no latent or patent obstacle in the judicial path to
prevent the cause proceeding to the end ;? then, if, contrary -
to his rights and without his consent, the cause is suffered
to break off before a verdict of acquittal or conviction is
reached, there cannot technically be a plea of autrefois ac-
quit or autrefois convict by reason of this jeopardy, yet the
prisoner is entitled in some way to rely upon it afterward for
his protection. What the true course in such a case is, may
be matter of some dotbt; yet we should keep this point in
mind while we discuss, I. The Plea of Autrefois Convict ;
II. The Plea of Autrefois Acquit. Afterward we shall con-
sider the point thus stated, under the title of, III. The De-
fence of Former Jeopardy when neither of these Pleas is
available.

I. The Plea of Autrefois Convict.

§ 574. The form of the plea of previous conviction, as
pleaded under the rules of the common law, is, as given in
the books of forms, as follow : —

“ And the said C. D. in his own proper person cometh into court here,
and, having heard the said indictment read, [and protesting that he is not
guilty of the premises charged in the said indictment,’] saith, that the said
Commonwealth ought not further to prosecute the said indictment against
the said C. D. in respect of the offence in the said indictment mentioned,
because he saith, that heretofore, to wit, at the Supreme Judicial Court, be-
gun and holden at, &c. [set forth the former judgment and conviction ver-
batim, and then proceed as follows]; as by the record thereof, in the said
court remaining, more fully and at large appears; which said judgment and
conviction still remain in full force and effect, and not in the least reversed
or made void. And the said C. D. further saith, that the said C. D., and
the C. D. so indicted and convicted, are one and the same person, and not
other or different. And the said C. D. further saith, that the burglary of
which the said C. D. was so indicted and convicted as aforesaid, and the
burglary for which he is now indicted, are one and the same burglary, and

1 Crim. Law, L § 858, and accompa-
nying sections; Morgan o. The State,
18 Ind. 215.

2 This protestation, here inserted in
brackets, is not in the form of which
the rest of the text is a copy. It is
quite proper, though perhaps not neces-

sary. See the next note, and the places
there referred to. It is taken from Rex
v. Vandercomb, 2 Leach, 4th ed. 708,
712, where it seems to have been deem-
ed necessary, and is incorrectly regard-
ed by the reporter as a pleading over
of Not Guilty.
[415]
§ 576 SOME SPECIFIC ISSUES. [BOOK v.

not other or different. And this the said C. D. is ready to verify ; where-
fore he prays judgment if the said Commonwealth ought further to prose-
cute the said indictment against the said C. D. in respect of the said offence
in the said indictment mentioned, and that the said C. D. may be dismissed
and discharged from the same.” !

§ 575. This mere form of the plea will very much instruct
the practitioner concerning the law relating to this branch of
our subject, as concerns the procedure. It is so analogous
to the plea of autrefois acquit, that, as to most of the points
involved, we shall do best to discuss the two together. Gab-
bett says, that, like the last mentioned plea, “it must set
forth the former record, and plead over to the felony [a point,
upon which, as we shall by and by see,? he is in error] ; and,
in this also, the identity both of the offence and of the person
must be shown by averments. The replication, too, in like
manner, takes issue upon the material averments; and the
judgment, if in favor of the prisoner, is, ‘ that he go thereof
without day’; and, on the other hand, if the issue be found
against the defendant, the consequence is, as where autrefois
acquit is pleaded, that he answers over to the felony, if such
be the nature of the indictment, or, in the case of a misde-
meanor, that he receives judgment for the offence.”? We
shall therefore consider, under the next sub-title, various
points which pertain also to this.

Il. The Plea of Autrefois Acquit.

§ 576. The following is the form of this plea as given in
one of the older editions of Mr. Archbold’s book : —

“And the said J. S. in his own proper person cometh into court here,
and, having heard the said indictment read [and protesting that he is not
guilty of the premises charged in the said indictment*], saith, that our said

1 Train & Heard Preced. 486. This
form has also the following sentence
added: ‘“ And as to the felony and bur-
glary aforesaid in the said indictment
mentioned, the said C. D. saith he is
not guilty thereof, and therefore puts
himself upon the country,” &. Such
an addition is, as we shall see, not ne-
cessary ; and, though it perhaps accords

[416]

with various ancient forms, there is,
probably, even more than doubt of its
propriety. Ante, § 438; post, § 576,
577,

2 Post, § 576, 577.

3 2 Gab. Crim. Law, 336.

* Not in Archbold. See ante, §574,
notes,
CHAP. XXXVI] FORMER JEOPARDY. § 577

lady the Queen ought not further to prosecute the said indictment against
the said J. S.; because he saith, that heretofore, to wit, at the general quar-
ter sessions of the peace holden at [so continuing the caption of the former
indictment], it was presented, that the said J. S., then and there, and there-
by described as J. S., late of , in the county aforesaid, laborer, on the
third day of [&c., continuing the indittment to the end; reciting it, how-
ever, in the past, and not in the present tense. Recite also the remainder
of the record to the end of the judgment in the past tense, in like manner.
Then proceed thus]: As by the record thereof more fully and at large
appears ; which judgment still remains in full force and effect, and not in
the least reversed or made void. And the said J. S. in fact saith, that he
the said J. S. and the said J. S. so indicted and acquitted as last aforesaid,
are one and the same person, and not other and different persons; and that
the [felony and larceny] of which he the said J. S. was so indicted and ac-
quitted as aforesaid, and the [felony and larceny] of which he is now indict-
ed, are one and the same [felony and larceny], and not other and differ-
ent [felonies and larcenies]. And this he the said J. S, is ready to veri-
fy; wherefore he prays judgment, and that by the court here he may be
dismissed and discharged from the said premises in the present indictment
specified.” + :

§ 577. This author adds: “ If the indictment be for felony
or treason, the defendant, besides this plea of autrefois acquit,
should plead over to the felony. In such a case, therefore,
continue the plea thus: ‘And as to the felony and larceny
of which the said J. S. now stands indicted, he the said J. S.
saith, that he is not guilty thereof; and of this he the said J.
S. puts himself upon the country.’ ” For this proposition he
refers to the case of Rex v. Vandercomb,? where, the plea
having been first tendered without a protestation of innocence,
it was altered to contain the words “ protesting that they were
not guilty of the premises charged in the said indictment;”’
the court objecting to it in its first form, and accepting it as

 

good in this amended form.®

1 Archb. Pl. & Ev. 10th Lond. ed.
89.
2 Rex v. Vandercomb, 2 Leach, 4th
ed. 708, 712.

& By some extraordinary blunder, the
reporter seems to have regarded this
protestation of innocence as amounting
to a plea of not guilty; for he says in
a note, — “ The plea, as it was original-
ly delivered to the court, did not plead

But to constitute a perfected

over; but, the court conceiving this to
be absolutely necessary, the prisoner
pleaded over to the burglary ‘ Not Guil-
ty,’ and it was added to the plea in
parchment.” Now, it is conclusively,
impossible the court should have “ con-
ceived ” what the reporter thus repre-
sents it to have done ; because the ad-
dition which was made to the parch-
ment, under the direction of the court,

[417]
§ 578 SOME SPECIFIC ISSUES. [BOOK, v.

plea of not guilty, such as it must be when tendered in a writ-
ten form, there must be added, to the words “ not guilty,”
some such other words as Archbold here gives us; namely,
that “of this the said J. S. puts himself upon the country.” 4
The utmost, therefore, which this case holds, is, that the
protestation of innocence should be inserted; while, on the
other hand, it does hold that the plea of not guilty need not
be. And Archbold adds: “If, however, the defendant pleads
autrefois acquit without pleading over to the felony, after his
special plea is found against him he may still plead over to
the felony.” 2 Consequently the safer course, by which all
doubts are avoided, is, to let the plea of autrefois acquit, or
of autrefois convict, contain the protestation of innocence, but

not the plea of not guilty.’

§ 578. If the plea of not guilty is tendered at the same

and “conceived ” by the latter to make
the plea of former acquittal correct in
form, did not amount to a plea of not
guilty.

1 This proposition is well illustrated
in a passage which occurs in The Trials
of the Regicides, 5 Howell St. Tr.
947, 999,1000. Thomas Harrison, hav-
ing, after some bandying of words,
pleaded guilty, was asked : —

“ Clerk. How will you be tried ?

“ Harrison. I will be tried according
to the laws of the Lord.

“ Clerk. Whether by God and the
country ?

“LZ. C. Baron. Now I must tell you,
if you do not put yourself upon your
country, you have said nothing.

“ Clerk, How will you be tried ?

“ Harrison. It is to put myself upon
what you please to put me upon.

“ Court. If you understand (you are
not every man, you are versed in pro-
ceedings of law), you know you must
put yourself upon the trial of God and
your country; if you do not, it is as
good as if you had said nothing.

“ Harrison. You have been misin-
formed of me.

“ Court. You have pleaded Not Guil-

[418]

ty ; that which remains is, that you
must be tried by God and the country,
otherwise we must record you standing
mute.

“ Clerk. How will you be tried ?

“ Harrison. I will be tried according
to the ordinary course.

“ Clerk. Whether by God and the
country ? you must speak the words.

“ Harrison. They are vain words.

“ Court. We have given you a great
deal of liberty and scope, which is not
usual. It is the course and proceed-
ings of law, if you will be tried, you
must put yourself upon God and the
country.

“ Clerk. How will you be tried ?

“ Harrison. I do offer myself to be
tried in your own way, by God and my
country.

“ Clerk. God send you a good deliv-
erance.”’

2 Referring to 2 Hawk. P. C. ¢. 23,
§ 128; Rex v. Sheen, 2 Car. & P. 634;
Rex v. Welch, MS. 1828, Car. Crim.
Law, 3d ed.56. See also, Common-
wealth v. Merrill, 8 Allen, 545; Com-
monwealth v. Goddard, 13 Mass. 455.

8 See ante, § 574-576 and notes;
also, ante, § 434, 435.
CHAP. XXXVI.] FORMER JEOPARDY. § 580

time with that of a previous acquittal, or is made a part of
the latter, still the defendant cannot have both issues submit-
ted to the jury at once, but the court will order the special
plea to be passed upon first.1 There are, indeed, some in-
stances to be found in the reports, in which, by a sort of loose
practice, the two issues have been submitted together ; but,
where this was done, and the jury returned a verdict of guil-
ty without passing on the other issue, a judgment rendered
on the verdict was held to be erroneous.”

§ 579. There is ordinarily no way of taking advantage of
a former conviction or acquittal, where the defendant is in-
dicted anew, except by this plea. He cannot, for instance,
avail himself of this matter, on a motion in arrest of judg-
ment.?

§ 580. The plea must set out the record of the former con-
viction or acquittal ; and allege, that the two offences are the
same, and that the defendant in the former suit is the same
person who is the defendant in the latter suit. Yet if one
person is indicted singly, he may plead that he was before in-
dicted jointly with other persons, and on such indictment

convicted or acquitted.®

1 Rex v. Roche, 1 Leach, 4th ed.
134; Commonwealth v. Merrill, 8 Al-
len, 545 ; ante, § 438.

2 Solliday v. Commonwealth, 4 Ca-
sey, 13. Said Black, J.: “ If the rep-
resentative of the Commonwealth tray-
erses the plea [of autrefois convict] by
denying that the former conviction was
for the same offence, and thus forms an
issue in fact, it must go to the jury,
and no judgment can be given in the
case until that question is disposed of.
No matter how clear the opinion of the
court may be against the defendant, no-
body but the jury can decide an issue
like that. The judge may influence the
verdict, in some cases he ought to con-
trol it, but he cannot pronounce it.” p.
14, sg. Pp. Nonemaker v. The State, 34
Ala, 211.

8 The State v. Barnes, 32 Maine,
530.

4 Rex v. Wildey, 1 M. & S. 183;
Rex v. Vandercomb, 2 East P. C. 519,
2 Leach, 4th ed. 708; The State v. At-
kinson, 9 Humph. 677; McQuoid »v.
People, 3 Gilman, 76 ; Henry v. The
State, 33 Ala. 389; Rex v. Taylor, 5
D. & R. 422, 3 B. & C.502. In Ten-
néssee it was deemed necessary, where
the former trial was before a justice of
the Peace, that the plea should in some
way show his jurisdiction. And, if it
sets forth a trial and fine under the act
of 1848, c. 55, it must allege that the
justice heard the evidence ; because, by
the express words of the statute, this is
one of the circumstances entering into
the jurisdiction, which ‘‘ cannot be other-
wise ascertained and determined.” The
State v. Spencer, 10 Humph. 431, 433.

5 Rex v. Dann, 1 Moody, 424.
“ Upon the result of all the authorities,”
it was observed, “ the question is, wheth-

[419]
§ 582 SOME SPECIFIC ISSUES. [BOOK Vv.

§ 581. Nothing short of a record of acquittal, therefore,
will sustain the plea of autrefois acquit. And according to
Lord Hale, it is not sufficient for the defendant to show that
the jury returned a verdict of acquittal, he must show also a
recorded judgment of the court rendered on the verdict ;
“ though,” he adds, “ the acquittal regularly is a warrant for
entry of the judgment at any time after.”’? Perhaps this
may be so; and, if a lower court should refuse to pronounce
judgment on the verdict, it may be the duty of the prisoner
to procure a mandamus? compelling the court to do this, be;
fore he can properly rely upon the acquittal to sustain the
plea of autrefois acquit. However this may be, it is well set-
tled, in England and the United States, that, to sustain the
plea of autrefots convict, no judgment sentencing the prisoner
need be pronounced on the verdict ;* though, perhaps, even
here it may be necessary to show, in some way by the record,

that the case is finally disposed of.®
§ 582. The issue presented by the plea of autrefois convict,

er the prisoner could have been convict-
ed on the former indictment ; for, if he
could, he must be acquitted on the sec-
ond.” p. 426.

1 Bailey v. The State, 26 Ga. 579.

2 2 Hale P. C. 248.

8 Rex v. Middlesex Justices, 3 Nev.
&M. 110. “It strikes us,” said Den-
man, C. J. in this case, “that the pris-
oner has a right to havea record of that
which took place, regularly made up,
in order that he may sce whether he can
make use of it for his advantage.’’ p.
113,

4 The State v. Elden, 41 Maine, 165,
and the authorities, English and Amer-
ican, there referred to. In this case, af-
ter there had heen a verdict of convic-
tion, and before sentence pronounc-
ed, “the attorney of the State for the
county of York suggested to the court,
that he would no further prosecute the
said indictment. It was therefore con-
sidered by the court, that the indictment
be dismissed, and that the defendant
go thereof without day.” p. 168. The

[420]

prisoner was then indicted anew ; he
pleaded the former conviction ; the State
demurred ; the court overruled the de-
murrer, holding the plea to be good.
And the court laid down the broad doc-
trine, that, to constitute either the plea
of autrefois acquit or the plea of autre-
fois convict a bar, it is not necessary
judgment should have been rendered on
thé verdict in the former case. p. 170.

5 According to an English case, a plea
of autrefois convict can bé proved only
by the record ; and the indictment, with
the finding of the jury, &c., indorsed by
the proper officer, is not sufficient, even
though it appears also that no record
has been made up. But the court be-
fore whom the prisoner is brought to be
tried the second time, will postpone the
trial at the request of the prisoner, on
an affidavit of the fact, to give time for
an application for a mandamus to com-
pel the making up of the record. Rex
v. Bowman, 6 Car.& P. 101. See also
Commonwealth v. Goddard, 13 Mass.
455.
CHAP. XXXVI] FORMER JEOPARDY. § 582

or of autrefois acquit, is a mixed one, partly of law, and part-
ly of fact. The record of the former conviction or acquittal
is produced ; and, for what is provable by it, it is conclusive,
neither party being permitted to show that it is wrong. And
the legal effect of the record is matter of law which it is the
duty“of the court to declare to the jury? But the identity of
the parties and the identity of the offences do not necessarily
appear by the record ; they do not, in fact, ever so appear
in complete fulness ; for, should the names and additions be
the same, and the two’ indictments be in exact words alike,
still there may be two persons of the same name and calling,
and two offences which may be described in the same words.
To sustain this plea, therefore, it is not sufficient simply to
put in the former record ; some evidence must likewise be
given, that the offences charged in the former and present in-
dictment are the same. This may be done by showing, by
some person present at the former trial, what was the offence
actually investigated there; and, if that is consistent with
the charge in the second indictment, a presumptive case will
thus be made out, which must be met by proof, on the other
side, of the diversity of the two offences.? A witness, to prove
what was done at a former trial, need not necessarily be one
of the witnesses upon whose testimony the conviction or ac-
quittal was had ; but any person who was present is compe-
tent for this purpose, even though the witnesses who testified
at the former trial are within reach of the process of the
court. And if there was on the former occasion a conviction

.

1 Douglass ». Wickwise, 19 Conn. see The State v. Smith, 22 Vt. 74. See

489; Commonwealth v. Goddard, 13
Mass, 455.

2 Martha v. The State, 26 Ala. 72.

8 Reg. v. Bird, 2 Den. C. C. 94,5
Cox C. C. 20, 2 Eng. L. & Eq. 448 ;
Duncan 7. Commonwealth, 6 Dana,
295; The State v. Andrews, 27 Misso.
267. See The State v. Isham, 3
Hawks, 185; Merkle v. Bolles, 6 Blackf.
288; White v. Elkin, 6 Blackf. 123,
As intimating that the mere production
of the record may under some circum-
stances make out a prima facie case,

VOL. I. 36

also Rake v. Pope, 7 Ala. 161; The
State v. De Witt, 2 Hill, S. C. 282.
According to a Massachusetts case, the
burden of proving a prior conviction of
the offence charged against a defendant
is upon him, and is not shifted by prima
facie evidence of the identity of an of-
fence of which he has been previously
convicted, with that now charged against
him. Commonwealth v. Daley, 4 Gray,
209.
4 The State v. Smith, 11 Ire. 33.

[421]
§ 583

SOME SPECIFIC ISSUES.

[BOOK V¥.

and a sentence, the identity of the defendant is sufficiently
shown by evidence that he is the person who underwent the

sentence.!

§ 583. There are various other points, but these will suffi-
ciently appear in a digest of points hereto appended in a note.”

1 Reg. v. Crofts, 9 Car. & P. 219.

2 A novel assignment is not admissi-
ble in a criminal case, and the proper
and only mode of replying to a plea of
a former conviction is to traverse the
alleged identity. Duncan v. Common-
wealth, 6 Dana, 295. To such a plea,
a replication of an arrest of judgment
is bad ; it should show that the indict-
ment was defective, or that a conviction
could not have been had upon it for the
offence charged in the second indict-
ment. Henry v. The State, 33 Ala.
889. In pleading awtrefois acgiit or con-
vict, the prisoner must be prepared to
prove on the spot the truth of his plea
‘by the record, which he must have in
poigne, and vouch in support of his plea;
and if this proof be not instantly given
the court will overrule the plea; al-
‘though, for good cause shown, it will
give time to plead until the record can
be procured. If such plea is tendered
by the prisoner, and the attorney for
the commonwealth demurs to it, this is
an admission that the record of acquit-
tal or conviction was produced as it
ought to have been. Commonwealth
v. Myers, 1 Va. Cas. 188, 282. If,ina
plea of autrefois acquit, the prisoner
were to insist on two distinct records of
acquittal, his plea would be bad for du-
plicity. But semble, that, if he insisted
on the wrong, the court would, in a
capital case, take care that he did not
suffer by it. Rex. Sheen, 2 Car. & P.
634. A plea of. autrefois convict stated,
that the prisoner was indicted, convict-
ed, and sentenced, at a session of the
peace “duly holden by adjournment on
the 5th of July’; replication, nul tiel
record. The record, produced in sup-
port of the plea, stated that the indict-
ment was found ata session commenced

[422]

and holden on Monday the Ist of July,
and that the court was adjourned ‘till
Tuesday the 2d; that the court, having
re-assembled on Thursday the 4th, was
adjourned to Friday the 5th, when the
prisoner was tried and convicted. It
was held, that the plea of autrefois con-
vict was not: proved by the record ; inas-
much as, for want of an adjournment
from the Tuesday to the Thursday, the

proceedings on the Friday were coram

non judice, and a nullity. Rex v. Bow-
man, 6 Car. & P. 337. See also Rex
v. Taylor, 5 D. & R. 422, 3 B.& C.
502; Hite v. The State, 9 Yerg. 357.
To an indictment charging a larceny in
a dwelling-house, there was a plea al-
leging a former conviction by the police
court for pilfering the same articles ;
replication, that the larceny charged in
the complaint was in a dwelling-house,
of which the police court had no juris-
diction. A rejoinder that the larceny
charged was not in a dwelling-house, is
not a departure. And, although the
plea was defective in form, for not di-
rectly traversing the charge of larceny
in a dwelling-house, yet the defect was
cured by the pleading over. The prop-
er plea would have been former convic-
tion of the larceny, and not guilty of
the residue of the charge. Common-
wealth v. Curtis, 11 Pick. 134, Indict-
ment for assault and battery. Plea of
a former conviction before a justice of
the peace. Demurrer, for that the plea
does not aver that the proceeding befoye
the justice was not had by the procure-
ment of the defendant. Held, that the
plea is good, and that if the State in-
tend to rely on a case of fraud in the
former proceeding to avoid the force of
the plea, it must be by replication, not
by demurrer. The State v. Clenny, 1
CHAP. XXXVI] FORMER JEOPARDY.

§ 585

It must be also observed, that, in many of our States, there °
are statutes permitting wide departures from the common-law
rules, respecting the forms of the pleadings in these cases.
There is likewise, at present, a statute of this sort in England.
The result is, that, in many of the localities where the com-
mon law prevails, the pleading of a previous conviction or
acquittal is now a very simple matter.

JII. The Defence of Former Jeopardy, when neither of the
foregoing Pleas is available.

§ 584. Probably, in England, there can be made by a pris-
oner no successful defence, based on a former jeopardy under
another indictment, except where one or the other of the
foregoing pleas is available to him. But if the reader will
examine the chapter relating to this subject in the author’s
work on the Criminal Law, he will see, that, in this country,
under the constructions given by our courts to constitutional
provisions, we have, as already observed,! scope for the de-
fence of former jeopardy to be made in cases which have not
proceeded to an actual acquittal ; when, therefore, according
to the English law, the plea of autrefois acquit cannot, in
form, be pleaded. In such circumstances, it seems to be the
law with us, though the matter is not fully illustrated by de-
cisions, that a plea analogous to the plea of autrefois acquit,
setting out the special facts which show the jeopardy, may be
brought forward, as the proper method of taking advantage
of the objection.

§ 585. Mr. Wharton has furnished us, in his book of Pre-
cedents,” with a very voluminously worded plea of this sort.

Head, 270. And see further as to cases
of fraud. The State v. Lowry, 1 Swan,
Tenn. 34; The State v. Reed, 26 Conn.
202. Wherever the offences charged in
the first and second indictments are ca-
pable of being legally identified as the
same offence, by averment, it is a ques-
tion of fact for the jury to determine,
whether the averments are supported
and the offences are the same. In such
cases, the replication ought to conclude

tothe country. But where the plea of
autrefois acquit, upon its face, shows
that the offences are legally distinct,
and incapable of identification by aver-
ments, the replication of nul tiel record |
may conclude with a verification, and
the court may decide the issue. Hite v.
The State, 9 Yerg. 357.

1 Ante, § 573.

2 Whart. Preced. 2d ed. pl. 1157.

[423]
§ 586 SOME SPECIFIC ISSUES. [BOOK V.

It is not easy to say, in the present state of the authorities,
how minute such a plea should be. The author would how-
ever suggest, that, in those States in which the courts hold
the jeopardy to attach as soon as the jury is impanelled and
all other things of record are fully ready for the trial,’ the
following form should perhaps be deemed adequate : —

“« And now the said A, having heard the said indictment read, and, pro-
testing that he is not guilty in manner and form as therein charged against
him, saith, that the said Commonwealth ought not further to prosecute the
said indictment against the said A; because he saith, that, at a
court, begun and holden at, &c., the jurors of, &c., [set out the indictment
in full] to which said indictment the said A pleaded that he was not guilty
of the offence therein charged against him ; and thereof he put himself upon
the country, and the said Commonwealth did the like; and thereupon, at,
&e., on, &c., a jury was duly impanelled to try the said issue, and thereby
he was put in jeopardy under the said indictment ; as by the record thereof
more fully and at large appears. And the said A further saith, that, though
no verdict was reached in said case, the failure thereof was not owing to
any consent by him the said A made or given, or any interposition of Prov-
idence, or any other thing which in law should subject the said A to be
again put in jeopardy ; and the record of said former jeopardy still remains,
and is in no way reversed or made void. And the said A further saith,
that he and the said A mentioned in the said former indictment are one
and the same person, and not other; and that the said offence for which he
now stands indicted is the same offence mentioned in the said former indict-
ment, and not other. And this he is ready to verify. Wherefore he prays
judgment, and that by the court here he may be dismissed and discharged
from the said premises in the present indictment specified.”

 

The reader will bear in mind, however, that this plea is
drawn upon a theory of the law which appears not to be ac-
cepted in all our tribunals.

§ 586. There is also another view, namely, that, where the
jeopardy has attached, and there is no conviction, the defend-
ant is entitled to have a judgment of acquittal entered, even
though there should be no verdict reached.2 Also that, in
this case, his remedy is to demand such a judgment to be en-
tered of record; and, if the court refuses, and is an inferior
court, to proceed by mandamus or otherwise to compel it.
Then, it may be supposed, this record will be a sufficient one

1 Crim. Law, I. § 858. 3 Ante, § 581.
2 See Crim. Law, I. § 858.

[424]
CHAP. XXXVI] § 587
to sustain the plea of autrefois acquit. The tendency of de-
cision in this country is, to permit a wide scope to defend-
ants, and not to restrict them to one of two methods which
may be equally available on the general principles of the
law.

§ 587. If the court, notwithstanding the jeopardy, insists
upon trying the prisoner on the same indictment, instead
of discharging him, there are precedents for a plea, analogous
to that of former acquittal, to be tendered in the same case.!
The prisoner, however, is entitled to his discharge, by order
of the court, without bringing forward this plea; for the
jeopardy, without a verdict, is a legal equivalent to a verdict
of acquittal.? If, still, the court refuses, a writ of habeas cor-
pus will not lie ;* neither, in some localities at least, will an
appeal, for an appeal is taken only from a final judgment.*

FORMER JEOPARDY.

1 Grant v. People, 4 Parker C. C.
527; Atkins v. The State, 16 Ark. 568 ;
Wilson v. The State, 16 Ark. 601. See
Klock v. People, 2 Parker C. C. 676;
McCreary v. Commonwealth, 5 Casey,
323,

2 Wright v. The State, 7 Ind. 324 ;
Reese v. The State, 8 Ind. 416 ; Mor-
gan v. The State, 13 Ind. 215; Mg-

36 *

Corkle v. The State, 14 Ind. 39 ; Peo-
ple v. Barrett, 2 Caines, 304; Ned ».
The State, 7 Port. 187. See The State
v. Nelson, 7 Ala. 610; Williams v. Com-
monwealth, 2 Grat. 567; Dye v. Com-
monwealth, 7 Grat. 662.

8 Wright v. The State, supra; Ex
parte Ruthven, 17 Misso. 541.

4 Miller v. The State, 8 Ind. 325.

[425]

.
§ 590 SOME SPECIFIC ISSUES. [BOOK V.

CHAPTER XXXVII.

THE PLEA OF PARDON.

§ 588. THe methods by which a person who has been par-
doned, is to avail himself of the pardon, have not been much
illustrated in our American practice. The old law, on this
subject, is well stated by Hawkins ;1 and we cannot do bet-
ter than call to mind its teachings, in his own words, accom-
panied by such expansions as the present state of the adjudi-
cations permits us to make.

§ 589. “TJ take it to be agreed,”’ he says, “that a general
pardon by parliament cannot be waived ; because no one by
his admittance can give a court a power to proceed against
him, when it appears there is no law to punish him. But it is
certain that a man may waive the benefit of a pardon under
the great seal; as, where one who has such a pardon doth not
plead it, but takes the general issue, after which he shall not
resort to the pardon.”

§ 590. There are two kinds of pardon, therefore, to be con-
sidered ; the one, given by legislative act ; the other, by ex-
ecutive warrant. As to the former, Hagin says: “ It seems
agreed, that, if any persons are excepted out of it, the court:
is not bound, and some have holden that it hath no power in
discretion, to give any person the benefit of it, unless it be
pleaded. Also it seems generally agreed, that, if the body of
such a pardon either excepts divers particular persons by
name, or excepts all those who come under a general descrip-
tion, —as, ‘all those who adhered to J. S.,’ &c., — no one
can demand the benefit of it, without expressly showing, in
the first case, that he is not one of the persons excepted ; and,
in the latter case, that he is not included in such description.
And if he happen to be of the same name with one of the per-

1 2 Hawk. P. C. c. 37, § 58 et seq.
: [426]
CHAP. XXXVI. ] PARDON. § 593

sons excepted by name, it is said that it will not be sufficient
for him to aver, that he was none of the persons excepted,
without adding, that he is a different person from such other
of the same name. Which how it can be tried, unless it ap-
pear by some additions to the name in the statute, may
deserve to be considered. ,

§ 591. “But,” he continues, “if the body of a statute be
general as to all persons whatsoever, and afterwards some are
excepted in the provisos, perhaps it may be sufficient to plead
such a pardon, without any averment that he who pleads it
is none of the persons so excepted ; it being a general rule,
that, where a man is within the general words of the body of
a record or deed which is qualified by subsequent provisos, it
is sufficient for him to bring his case within such general
words, and that the exceptions in such provisos ought to be
shown of the other side.

§ 592. “ Butit seems agreed, that the court is so far bound
to take notice ex officio of a general pardon by parliament,
which extends to all persons in general without exception,
that it cannot proceed against any person whatsoever as to
any of the offences pardoned, though he be so far from plead-
ing it, or praying the benefit of it, that he does all he can to
waiveit. Also, where a general act of pardon excepts certain
kinds of crimes, there is no need to aver that the crime where-
of a person is indicted is not one of such excepted crimes ;
but the court ought judicially to take notice whether it be ex-
cepted or not. Also, where such a statute excepts only one
particular person, it hath been said, that there is no need of
an averment that a person indicted is not such person ; but
that the court is to take notice whether he be or not.’’}

§ 593. Proceeding next to consider what is termed “a par-
ticular pardon under the great seal,” he makes the following
points: “ First, that it will be error to allow a man the ben-

1 It was once observed by Holt, C.J. compel us to do. And it is no con-
as follows: “ This court is not obliged sequence, that, because a man may give
to take notice of an act of: pardon, un- it in evidence upon the general issue
less the act compel this court to take pleaded, therefore this court shall take
notice of it (for an act of pardon is not notice of it in collateral cases.” In-
a general act), which this act does not gram v. Foote, 1 Ld. Raym. 708, 709.

[427]
§ 597 SOME SPECIFIC ISSUES. [BOOK v.

efit of such a pardon unless it be pleaded.” The same doc-
trine appears to be uniformly practised upon in the United
States.

§ 594. “Secondly. That he who pleads such a pardon
ought to produce it sub pede sigilli, though it be a plea in
bar; because it is presumed to be in his custody, and the
property of it belongs to him. Yet if a man plead such par-
don without producing it, it seems that the court may, in
discretion, indulge him a farther day to put in a better plea ;
and, at such day, he may perfect his plea by producing the
charter.

§ 595. “Thirdly. That, if there be a variance between the
record on which a man is convicted or attainted, and his
charter of pardon, yet, if there be no repugnancy to intend
that the same person or thing are meant in both, it may be
supplied by proper averments. And, therefore, if one be in-
dicted by the name of ‘J. S., yeoman,’ and pardoned by the
name of ‘J. §., gentleman’; or indicted by the name of ‘B,
the tasker,’ and pardoned by the name of ‘B, the son of W’;
he may make good the variance by averring, that he is the
same person intended in such indictment and pardon: or, if
in an indictment of the death of J. S., the stroke being sup-
posed to have been given ‘ on the first of August,’ and in the
pardon ‘on the third,’ the party may aver that the death of one
and the same J. S. are intended in both. And if such a va-
riant pardon be pleaded without any such averment, it seems
that the court may, in discretion, give the party a farther day
either to perfect his plea, or to purchase a better pardon.
And there are some instances, in old books, where, upon
such variance, the court took an inquest of office, whether
the same person were meant in both records.

§ 596. “Fourthly. That no such pardon can be pleaded
together with, or after, the general issue, unless it be of a date
subsequent to the time of the pleading such issue; because
otherwise it is waived by it.

§ 597. “Fifthly. That the party shall not be obliged to lay
the stress of his case on any particular words or clause in such
pardon, but may take advantage of the whole.

[428]
CHAP. XXXVIL] PARDON. § 602

§ 598. “ Sixthly. That, after an amerciament in the King’s
Bench hath been estreated into the Exchequer, and ‘the party,
being taken upon process from thence, hath insisted upon a
pardon, and been denied any benefit from it, yet he may be
brought by a habeas corpus cum causa to the King’s Bench ;
because the record remains there, and the transcript is only
sent into the Exchequer ; and may plead the same pardon in
the King’s Bench, and, if it be adjudged sufficient, may have a
supersedeas to the barons, &e.

§ 599. “ Seventhly. That, while the statute of 10 Edw. 8,
c. 2, stood in force (which required all persons pardoned for
felony to find sureties for their good behavior before the
sheriff and coroners within three months, &c.), no pardon of
felony could be allowed, without a writ out of chancery, com-
monly called a writ of allowance, testifying that the party had
found sureties, &c., according to that statute, unless it were
dispensed with by a special clause of non obstante, &c.

§ 600. “Highthly. That the judges may insist on the usual
fee of gloves to themselves and officers, before they allow a
pardon.

§ 601. “Ninthly. (Added by one of the editors of the origi-
nal work.) That the mode of taking advantage of a pardon
upon the circuits and at the Old Bailey is to procure the
king’s sign manual or privy seal signifying his Majesty’s in-
tention to afford a pardon to the prisoner, either absolutely
or conditionally as the case may be, and directing the justices
of the jail-delivery to bail him, on his entering into a recog-
nizance to appear and plead the next general pardon that
shall come out. This mandate the justices obey ; taking se-
curity, if the pardon is conditional, for the performance of the
stipulation upon which it is granted ; and afterwards issuing
their warrant to the jailer for his discharge.” 1

§ 602. When a defendant, therefore, would rely on an ex-
ecutive pardon, he should plead it promptly, so as not to lose
the advantage of it by the waiver which the law implies if
he pleads another plea in its stead. It may be pleaded, ac-

J 2 Hawk. P. C. c. 37, § 58 - 72.
[429]
§ 603 SOME SPECIFIC ISSUES. [BooK v

cording to the time when it is. issued and received, “in bar
to the indictment ; or, after verdict, in arrest of judgment ;
or, after judgment, in bar of execution.”1 The plea should
set out the pardon, with profert, and conclude, according to
the English form, thus: “ By reason of which said letters
patent, the said J. S. prays that by the court here he may be
dismissed and discharged from the said premises in the said
indictment specified.” 2 Of course, the warrant or letters of
pardon must be presented to the court on the hearing ; it not
being sufficient, when there is no loss of the document shown,
to present extracts from the governor’s minutes stating that
a pardon was granted.2 If the warrant of pardon appears
under the great seal of the State, it proves. itself, no other
evidence being necessary.*

§ 603." Perhaps a pardon may.be pleaded ore tenus,® espe-
cially if there is no objection made to this course ; but we
have elsewhere considered the matter of these oral pleas.®

1 Archb. Pl. & Ev. 13th Lond. ed. 4 1 Greenl. Ev. § 6, 503.

124. 5 Rex v. Garside, 4 Nev. & M. 33, 2
2 Th. p. 125. A. & E. 266.
§ Spalding v. Saxton, 6 Watts, 338. § Ante, § 474-476,

[430]
BOOK VI.

PRACTICE

CHAPTER XXXVIII.
THE PROCEEDING BY INFORMATION.

§ 604. Accorpine to the common law of England, as it
stood at the time when the body of the English common law
was by our ancestors brought over with them to this country,
the proceeding by criminal information is, in cases of misde-
meanor (with the exception of misprision of treason,! which
is a misdemeanor), a public remedy against the wrong-doer,
concurrent with the indictment ; subject, however, to practi-
cal exceptions and limitations. The matter is in an English
book 2 stated thus: “ An information for an offence is a sur-
mise or suggestion upon record, on behalf of the king (or
‘queen regent), to a court of criminal jurisdiction, and is, to
all intents and purposes, the king’s suit. It differs princi-
pally from an indictment in this, namely, that, in an indict-
ment, the facts constituting the offence are presented to the
court upon the oath of a grand jury ; whereas, in informa-
tions, the facts are presented by way of suggestion or infor-
mation to the court by some authorized public officer on be-
half of the crown.4 Criminal informations derive their origin
from the common law.6 ‘They may be filed by the Attorney-

1 Cole Crim. Inf. 9. 4 9 Hawk, P. C. c. 26, § 4.

2 Tb. 1 et seq. 5 Prynn’s case, 5 Mod. 459; 8. c.

3 Wilkes v. Rex, 4 Bro. P. C. 360. nom. Rex v. Berchet, 1 Show. 106.
[431]
§ 606 PRACTICE. ~ [BOOK VI.

General ex officio, upon his own discretion, without any leave
of the court. During the vacancy of that office they may be
filed by the Solicitor-General ; and, in such case, it is not
necessary in point of law to aver upon the record that the
attorney-general’s office is vacant.” ?

§ 605. According, therefore, to the strict law of England,
as it stood when the common law was brought over to this
country, the attorney-general, or, in the vacancy of his office,
the solicitor-general, may prosecute by information, without
leave of the court, any misdemeanor whatever, with the sin-
gle exception already mentioned.? And so absolute is his
power, that the court will never give him leave to file the in-
formation ; for the right is his without leave.* “ But,” says the
writer, just quoted, “ although the attorney-general may, if
he think fit, exhibit a criminal information ex officio for any
misdemeanor whatever ; yet, in practice, he seldom does so,
except when directed by the House of Lords, or the House
of Commons, or the Lords of the Treasury ; or the Commis-
sioners of some public department, for example, the Excise,
Customs, Stamps and Taxes, War Office, Admiralty, &c. ; or
where the case is of a very serious nature.” ©

§ 606. There is also, at the common law, another officer
who is authorized to file criminal informations. It is “ the
king’s coroner and attorney in the Court of King’s Bench, usu-
ally called the master of the crown office, who is for this pur-
pose the standing officer of the public.””® The informations
which he files, are presented by him on the prompting of
some private person, who is the prosecutor, — Blackstone says,
“at the relation of some private person or common inform-
er” ;" but the form of the information makes no mention
of this, or even of the prompting. It was in early times the
practice for this officer to present the information, as Lord
Mansfield has observed, “ upon any application, as a matter

1 Rex v. Phillips, 3 Bur. 1564 ; Rex * Rex v. Phillips, 4 Bur. 2089,
v. Plymouth, 4 Bur. 2089. 5 Cole Crim. Inf. 9, 10.
2 Wilkes v. Rex, 4 Bro. P. C. 360; 6 4 Bl. Com. 308.
Rex v. Wilkes, 4 Bur. 2527, 2553, 2577. 7 4 Bl. Com. 808,
3 Ante, § 604. 8 Cole Crim. Inf. 269 et seq.
[432]
CHAP. XXXVIII.] PROCEEDING BY INFORMATION. § 608

of course.” ! The consequence was, that, in 1692, as the
statute of 4 & 5 Will. & M. c. 18, of this date, recites in its
preamble, “ divers malicious and contentious persons have
more of late than in times past” procured informations to
be filed, and then withdrawn them after appearance and be-
fore trial ; to remedy which, this statute provided, that there-
after they should not be filed by this officer, except by leave
of court, and on the prosecutor’s giving security to the party
proceeded against for costs. It is doubtful to what extent
this statute may be deemed common law in this country ;?
but, it seems, that we have no such officer as this, consequent-
ly that the law of England respecting this kind of criminal
informations is not in practical force in the United States.

§ 607. In some of our States, criminal prosecutions are to
some extent conducted upon informations filed by the public
prosecuting officer, the same as in England by the attorney.
or solicitor-general, under a jurisdiction derived from the
common law or from statutes.? It was laid down in an early
Massachusetts case, that, as a general rule, all misdemeanors
which may be prosecuted by indictment, may be prosecuted
by information, unless by statute the proceeding is limited to
the indictment.* But this process, it was held in Virginia,
following the English doctrine, does not lie in a case of felo-
ny.© The filing of the information is the commencement of
the prosecution,® and no leave of court is required.”

§ 608. The Constitution of the United States provides,
that “no person shall be held to answer for a capital or oth-
erwise infamous crime, unless on presentment or indictment

_of a grand jury, except,” &c. ;® but this provision does not

1 Rex v. Robinson, 1 W. BI. 541, 542;
Rex ». Jolliffe, 4 T. R. 285, 290.

2 Kilty mentions it among the stat-
utes found applicable in Maryland, Kil-
ty Rep. Statutes, 180; Parsons, J. says
it ia not in force in Alabama, The State
v. Moore, 19 Ala. 514, 520,

8 Respublica »v. Griffiths, 2 Dall.
112; The State v. Ross, 14 La. An.
364; Cronkhite v. The State, 11 Ind.
807 ; Snodgrass v. The State, 13 Ind.

VOL. L 37

292; Whitney v. The State, 10 Ind.
404; McJunkins v. The State, 10 Ind.

140, ‘
* Commonwealth v. Waterborough,

5 Mass. 257, 259.

5 Commonwealth v. Barrett, 9 Leigh,
665.

6 Commonwealth v. Cheney, 6 Mass.
347,

7 The State v. Dover, 9 N. H. 468.

8 Const. U. S. Amend. art 5.

[433]
§ 610 PRACTICE. [Book vi.

bind the States.) In one or two or more of our States, there-
fore, informations are much more resorted to than they are
or ever were in England. This is particularly so in Connecti-
cut, where all criminal prosecutions are carried on by infor-
mation, presented either by the attorney for the State or by
a single grand juror, except where the punishment is either
death or imprisonment for life.?

§ 609. The following is the form of the English informa-

tion : —

“ Of Michaelmas Term in the fifth year of Queen Victoria:

“ Cambridgeshire, to wit: Be it remembered, that Sir Frederick Pollock,
Knight, Attorney-General of our present sovereign lady the Queen, who
for our said lady the Queen in this behalf prosecuteth, in his own proper
person cometh into the court of our said lady the Queen before the Queen
herself at Westminster, on Tuesday, the second day of November, in this same
term, and for our said lady the Queen giveth the court here to understand,
that, &c. [proceeding to set out the offence, in as many counts as the plead-
er chooses, precisely as in an indictment; and omitting nothing which the
indictment should contain, even to the conclusion. A new count is intro-
duced as follows: ‘ And the said Attorney-General of our said lady the
Queen, on behalf of our said lady the Queen further gives the court here
to understand and be informed, that,’ &c. The information then closes,
thus]: Whereupon the said Attorney-General of our said lady the Queen,
for our said lady the Queen, prays the consideration of the court here in
the premises, and that due process of law may be awarded against him the
said S. L. in this behalf, to make him answer to our said lady the Queen
touching and concerning the premises aforesaid.” ®

§ 610. It is perceived, therefore, that, with the exception
of merely formal parts, added at the beginning and close, the
information is in its structure precisely like an indictment.’
And many of the decisions referred to in the earlier sections

1 Noles v. The State, 24 Ala. 672,

2 9 Swift Dig. 370.

8 Cole Crim. Inf. 262-269. The
following, taken from 2 Swift Dig. new

the said E. F. is now at large. Where:
fore the said attorney prays, that a
bench warrant may issue against the.
said E. F., that he may be arrested
and brought before this court to answer

ed. 791, is the form used in Connecticut:

“To the Hon. —— Court for the
County of ——, now in session.

“ A.B. of —. Esquire, attorney for
the State in and for said County, here
in court informs, that, &ec., [setting out
the offence as in an indictment] and that

[434]

to: this information, and be dealt with
according to law.
“T., Attorney.”

£ The State v. Williams, 8 Texas,
255 ; People v. Higgins, 15 Ill. 110;
The State v. Miles, 4 Ind. 577.
CHAP. XXXVIII.] PROCEEDING BY INFORMATION. § 611

of this volume, to show the form of the indictment, were pro-
nounced in cases where the proceeding was by information.
§ 611. In matter of amendments, the information stands,
at the common law, on entirely different ground from the in-
dictment. The public officer by whom the information is
presented and prosecuted being always in court, it may be
amended, on his application, to any extent which the judge
deems to be consistent with the orderly conduct of judicial
business, with the public interests, and with private rights.
The application for the amendment may, indeed, be de-
nied ;? and, in Kentucky, it was held not to be amendable
by adding new charges.’ If the defendant has objected to
something by a plea in abatement, it may be amended to
cure the defect. “ After a record has been sealed up,”
said Holt, C. J., “I have known it amended, even just as it
was going to be tried.” The amendment, if ordered, may

1 Some formal matters are the follow-
ing: Information by State’s attorney
need not state that he informs under his
official oath. The State v. Sickle, Brayt.
132. In Indiana, under the Revised
Statutes of 1852, where an information
for larceny is filed without an affidavit
or other sworn charge, a motion in ar-
rest of judgment will be sustained. Bar-
amore v. The State, 4 Ind. 524. The
affidavit need not be to the commission
of the offence; it is enough if it is to
the affiant’s belief thereof. The State
v. Ellison, 14 Ind. 380. See also Broos-
ter v. The State, 15 Ind. 190. The af-
fidavit must show the commission of the
offence charged. “A defective affida-
vit is not cured by a sufficient informa-
tion.” The State v. Gartrell, 14 Ind.
280. Likewise, by construction of the
statute, the information must be based
on an affidavit first filed ; a mere verifi-
cation of the information is not suffi-
cient. Carpenter v. The State, 14 Ind.
109. The affidavit, in a case of mali-
cious injury, need not state the nature
of the injury maliciously inflicted. The
State v. Clevinger, 14 Ind. 366. A de-
fect in the title of the information is no

ground for quashing it. Malone v. The
State, 14 Ind. 219.

2 Anonymous, Comb. 45. See Rex
v. Goffe, 1 Lev. 189.

8 Commonwealth v. Rodes, 1 Dana,
595. And see Commonwealth v. Wil-
liamson, 4 Grat. 554. See also a sub-
sequent note to this section.

* Reg. v. Stedman, 2 Ld. Raym.
1307 ; Rex v. Seawood, 2 Ld. Raym.
1472, 2 Stra. 739.

5 Rex v. Harris, 1 Salk. 47; The
State v. Weare, 38 N.H. 314. Ina
Connecticut case it was observed : “ That
the public prosecutor may amend an
information, at any time before trial, is
too well settled to admit of dispute ;
and even during trial it has often been
done. And that he may amend by add-
ing » new count is equally indisputa-
ble. But whether he may add such
count, for the offence already charged,
after that offence is barred by the stat-
ute of limitations, presents a question
upon which there has not, perhaps, been
an entire uniformity of decision.” The
court, however, held, that there could be
no amendment in such a case ; because,
if the amendment were granted, there

[435]
§ 611 PRACTICE. [BOOK VI.

be accompanied by such terms as to the court may seem just ;
and, where it is a mere formal one, changing nothing of fact
or of substance, it may, even after issue joined, be permitted,
without giving either costs or continuance in compensation to
the defendant.! The court has refused to quash an informa-
tion, on the ground that it was amendable, and so the alleged
defect might be cured.”

might be a conviction upon the new which had really been barred. The
allegations, and these might constitute State v. Rowley, 12 Conn. 101, 106.

a new offence; and thus the defend- 1 Anonymous, 1 Salk. 50; Rex v.

ant, losing the protection of the stat- Charlesworth, 2 Stra. 871.
ute, would be convicted for an offence 2 Rex v. Nixon, 1 Stra. 185.

[436]
CHAP. XXXIx.] THE ARREST, ETC. § 618

CHAPTER XXXIX.
THE ARREST AND HOLDING FOR EXAMINATION OR TRIAL.

Secr. 612. Introduction.

613-620. Arrest, how made, and Rights of the Parties.
621-629. Without Warrant, by Unofficial Persons.
630-643. Same, by the Officers of the Law.
644-650. The Arrest under Warrant.

651-664. Breaking of Doors and the like.

665, 666. Under Search Warrants.

667-669. Seizing of Goods in other Arrests.

XN 670-675. Disposal of Arrested Person and Goods.

676-681. Fugitives from Justice.

§ 612. Tue subject of this chapter is one of considerable
delicacy, and not quite free from difficulty. Its leading doc-
trines are plain and well established ; but there are places at
which its minuter lines are indistinct and even uncertain.
Let us examine it in the following order: I. The Arrest, how
made, and the Rights of Persons arrested and arresting ; II.
The Arrest, without Warrant, by Unofficial Persons; III.
The Arrest, without Warrant, by the Officers of the Law;
IV. The Arrest under Warrant; V. The breaking of Doors,

"and the like, to make an Arrest; VI. The Arrest of Persons
and Goods under Search Warrants; VII. The seizing of
Goods in other Cases of the Arrest of the Person ; VIII. The
Disposal of the Arrested Person and Goods ; IX. Fugitives
from Justice.

I. The Arrest, how made, and the Rights of Persons arrested
and arresting’.

§ 618. In an old book of considerable value, we have the
following definition of arrest: “‘ An arrest (from arrester,
French, to stop or stay) is the taking, attaching, or seizing a
person or thing, either by a public officer in execution of the
command of some court or minister of justice, or by a private

37 * [437]
§ 615 PRACTICE. [BOOK VL

person, according to the command or permission of the law ;
or, it is the staying a judgment given by a court.” 1 Arrest,
in the sense of the latter branch of this definition, will form
the subject of a chapter further on.?

§ 614. To constitute an arrest, it is not ordinarily suffi-
cient that words of arrest be spoken; there must be some-
thing done by way of actual physical restraint, though it is
enough if the party arresting touch the other, “ even with the
end of his finger.” So “ if a bailiff comes into a room, and
tells the defendant he arrests him, and locks the door, that
is an arrest; for he is in custody of the officer.”’* Like-
wise, if there is neither a touching of the person, nor other
force employed in the first instance, yet, if the party to be
arrested submits on being informed of the intended arrest,
nothing more is required to make the arrest complete. Thus,
“if the bailiff, who has a process against one, says to him -
when he is on horseback or in a coach, ‘ You are my prison-
er, I have a writ against you,’ upon which he submits, turns
back, or goes with him, though the bailiff never touched
him, yet it is an arrest, because he submitted to the process ;
but, if instead of going with the bailiff he had gone or fled
from him, it could be no arrest unless the bailiff laid hold of
him.”

§ 615. On the other hand, restraint, it is presumed, does
not alone constitute an arrest. At all events, it is the duty
of one seeking to arrest another to. make this his purpose
known ;® unless, what will probably answer instead of any
express announcement, the circumstances are such as to ren-
der the purpose obvious.’ Indeed it has been expressly laid
down, in respect even to an arrest by a private person without
a warrant, that, where the circumstances are such as to make

1 The Law of Arrests, London, 1742, 5 1 Salk. 6th ed. 79 note, referring to

p. 1. Horner v. Battyn, Bull, N. P. 62. 8. P.
2 Post, c. xlvi. Russen v. Lucas, 1 Car. & P. 153;
8 Genner v. Sparks, 6 Mod. 173, 1 George v. Radford, 3 Car. & P. 464,

Salk. 79. Moody & M. 244; Berry v. Adamson, 6

* Lord Hardwicke, C.J.,in Williams B. & C, 528, 2 Car. & P. 503; Crim.
». Jones, Cas, temp. Hardw. 298, 301. Law, II. § 49.
And see Grainger v. Hill, 4 Bing. N. R. & Mackalley’s case, 9 Co. 65 a.
212, 5 Scott, 561. 7 Rex v. Davis, 7 Car. & P. 785,

[488]
CHAP. XXXIX.] THE ARREST, ETC. § 617

the intention to apprehend plain to the mind of him who is to
be apprehended, he need not be told this ; and the arrest will
be legal, and the resistance of the arrested person illegal, the
same as if the purpose had been in words announced.! -The
question of an officer’s duty to make known his official char-
acter, or to exhibit his warrant, or to mention why he arrests
the person, belongs to other parts of this chapter.”

§ 616. A person making an arrest should not use unneces-

sary violence.? Especially he should not needlessly kill the
other, instead of arresting him, even though the wrong-doer
is in the act of committing a felony. But, upon this point,
the following distinction exists: If a man is committing a
felony, and an officer, for instance, attempts to arrest him,
yet he runs away, and the officer calls on him to stop, then, if
he. will not stop, the officer is justified in shooting at him to
compel him to stop ; but, if the offence is a misdemeanor, he
has no right to take this extreme measure.
' §617. The distinction thus mentioned refers to a case in
which there is no manual touch or otherwise any arrest, but
the criminal flies to prevent contact with the arresting per-
son. If, instead of flying, he stands and resists, then the
party having the right to arrest may press forward in his
purpose, even though the case be not one of felony ; and, if,
not desisting but still pressing forward, he is obliged to take
the life of the other as in self defence, he will be justified.®

1 Rex v. Howarth, 1 Moody, 207.
And see Rex v. Payne, 1 Moody, 378 ;
Pew’s case, Cro. Car. 183, 537, 538.
And see 9 Co. 65 6.

2 See post, § 646 - 650.

8 The State v. Mahon, 3 Harring.
Del. 568.

* Reg. v. Murphy, 1 Crawf. & Dix
C. C. 20; Gardiner v. Thibodeau, 14
Ta. An. 732.

5 Reg. v. Dodson, 2 Den. C. C. 35,
and compare with Crim. Law, I. § 528,
II. § 600. See also The State v. Roane,
2 Dev. 58 ; Dill v. The State, 25 Ala.
15; Brady o. Price, 19 Texas, 285.

6 Morton v. Bradley, 30 Ala, 683 ;

The State v. Roane, 2 Dev. 58; Arthur
v. Wells, 2 Mill, 314 ; The State v. Ma-
hon, 3 Harring. Del. 568. Mr. East
says : “It may be premised generally,
that, where persons having authority
to arrest or imprison, or otherwise to
‘advance or execute the public justice of
the kingdom, and using the proper
means for that purpose, are resisted in
so doing, and the party resisting is kil]-
.ed in the struggle, such homicide is jus-
tifiable. And, on the other hand, if the
party having such authority, and ex-
ecuting it properly, happen to be kill-
ed, it will be murder in all who take a
part in such resistance ; this being con-

[439]
§ 620 [BOOK VI

PRACTICE.

§ 618. When the arrest has been actually made, whether
for felony or misdemeanor ; then, if the arrested person at-
tempts to break away, he may be killed to prevent it, provid-
ed this extreme measure is necessary.}

§ 619. Where an attempt at unlawful arrest is made, —
as, for instance, where an officer undertakes to arrest, with-
out a warrant, and not on fresh pursuit, one whose crime is
no more than misdemeanor, — the person on whom the at-
tempt is made may lawfully resist, though not to the taking
of life ;? and, if in such resistance he takes the officer’s life,
his crime will be only manslaughter.2 So the person thus
unlawfully arrested is justified in escaping if he can ;* and
an attempt to rearrest him will be equally unlawful with the
first arrest.6 Such is the general rule; but there are cir-
cumstances in which, if the person arrested submits, he waives
an objection which he might have taken ; and, in these cir-
cumstances, he has no right afterward to escape.®

§ 620. One having custody of an arrested person should
treat him kindly ; but, as we have seen,’ he may even inflict
death to prevent his escape, where no other means are avail-
able. A fortiori, an officer who has a prisoner under arrest
may tie him, if this is necessary ; and it is laid down, that,
where the officer acts honestly and from pure motives, he is
to be himself the sole judge of the necessity of such a measure
as this. If, then, having arrested the prisonér lawfully, the
latter breaks away, he may retake him, without any fresh
warrant ;° and this has been held to be so even where the
officer has consented to the escape.!

sidered by the law as one of the strong-
est indications of malice, an outrage
of the highest enormity, committed in
defiance of public justice, against those
who are under its special’ protection.” 1
East P. C. 295.

1 Crim. Law, IT. § 600. ,

2 Crim. Law, IT. § 656.

8 Commonwealth v. Carey, 12 Cush.
246.

* The State v. Ward, 5 Harring. Del.
496,

[440]

5 Rex v. Curvan, 1 Moody, 132.

6 The State v. Phinney, 42 Maine,
384 ; Wood v. Kinsman, 5 Vt. 588.

7 Ante, § 618.

8 The State v. Stalcup, 2 Ire. 50.

® Cooper v. Adams, 2 Blackf. 294.

10 Commonwealth v. Sheriff, 1 Grant,
Pa, 187. Chitty, treating of this mat-
ter, says : “ It is clearly agreed by all the
books, that an officer, making a fresh
pursuit after a prisoner who has been
arrested, and has escaped, through his
CHAP. XXXIX.]

THE ARREST, ETC.  § 622

Il. The Arrest, without Warrant, by Unofficial Persons.

§ 621. We saw, in the work on the Criminal Law,} that,
ifa man sees a treason or felony committed, and does not
endeavor to arrest the offender or bring him to justice, he
commits thereby the crime of misprision of treason or felony.
This crime is a misdemeanor. In the language of an old
book: “All persons whatsoever, who are present when a
felony is committed, or a dangerous wound given [which, if
the wounded person dies, will amount to a felony], are
obliged to apprehend the offender ; otherwise they are liable
to be fined and imprisoned for the neglect, unless they were
under age at that time.” 2

§ 622. Of course, therefore, the duty carries with it the
right, and any one who is present in such circumstances may
make the arrest.? It is also a duty of precisely the same na-
ture, the neglect of which is attended by the same conse-
quences, to interfere to prevent the commission of a felony
or treason ;* and this duty, in like manner, carries with it
the right. Consequently, though an attempt to commit a

negligence, may retake him at any time,
whether he find him in the same ora
different county, without raising hue
and cry; because, as the liberty obtain-
ed by the prisoner is wholly owing to
his own wrong, ther is no reason why
he should be allowed to derive any ad-
vantage from it. But where the officer
has voluntarily suffered a prisoner to
escape, it is said by some that he can
no more justify the retaking him than
if he had never had him in custody
before ; because by his own consent
he has admitted that he has nothing
more to do with him. It should seem,
however, that the misconduct of the of-
ficer ought not to prevent a second ar-
rest, in order that the offender may be
brought to justice; and, where a per-
son has been convicted of a crime,
and committed in execution until he
pay the fine, and is suffered by the offi-
cer to escape, the officer is bound to re-
take him.’? 1 Chit. Crim. Law, 61.
When we look at this question as one

of principle, we see that the warrant
of arrest authorizes the officer to do two
things ; first, to take the prisoner into
custody ; secondly, to hold him until he
is lawfully discharged. Now, if, after
an arrest, the officer consents to let the
prisoner go, this is not a lawful dis-
charge, and he and the prisoner alike
commit each an offence against the crim-
inal law, if he goes. The warrant has
not spent itself, the prisoner is not law-
fully released from its restraining pow-
er ; and, though the officer has commit-
ted an offence, it is a rule in the crim-
inal law that the guilt of one person
does not take away the guilt of another,
or confer privileges on the other.

1 Crim. Law, I. § 652 et seq.

2 Law of Arrests, 200. And see 1
Chit. Crim. Law, 16.

8 Phillips v. Trull, 11 Johns. 486 ;
Keenan v. The State, 8 Wis. 132;
Long v. The State, 12 Ga. 293.

* Crim. Law, I. § 652 et seq.

[441]
§ 623 PRACTICE. [BOOK VI.

felony is misdemeanor, and not felony, yet, if a man finds
another attempting to commit a felony, he may arrest him.}
§ 623. This is probably as far as duty, in the strictest sense
of the word, compels private persons to make arrests without
warrants. In these circumstances, where they are indictable
if they do not act, they have rights, not easily defined, ex-
ceeding those which attend them when the law merely per-
mits the arrest. But, using the word duty in the milder
sense, “it is the duty of every good citizen to endeavor to
suppress a riot; and, when he finds a mistaken multitude
engaged in treasonable practices, to the subversion of all
peace and good order, he is protected by law in coming for-
ward with other well-disposed characters, to repel them by
force.” 2 Wherefore a rising to quell a treasonable riot is
lawful.2 Moreover, in the words of Blackstone, “ Affrays
may be suppressed by any private person present, who is jus-
tifiable in endeavoring to part the combatants, whatever con-
sequence may ensue. But more especially the constable, or
other similar officer, however denominated, is bound to keep
the peace; and, to that purpose, may break open doors to sup-
press an affray, or apprehend the affrayers; and may either
carry them before a justice, or imprison them by his own au-
thority for a convenient space till the heat is over ; and may
then perhaps also make them find sureties for the peace.” 4
The obvious propriety of things, and the circumstances of
most cases, practically preclude the action of mere individuals
for the suppression of this class of disorders; for ordinarily
some officer of the law will lend counsel and direction, and, as
far as the law permits, protection, to what is done by mere
private individuals. Still the law is, that “any person what-
ever, if an affray be made to the breach of the peace, may,
without a warrant from a magistrate, restrain any of the of-
fenders, in order to preserve the peace ; but, after there is an
end of the affray, they cannot be arrested without a warrant.”
And although such restraint will not always be by way of

1 Rex v. Hunt, 1 Moody, 93, 3 Rex v. Wigan, 1 W. Bl. 47.
2 Respublica v. Montgomery, 1 £4 Bl. Com. 145.
Yeates, 419, 421. 5 Phillips ». Trull, 11 Johns, 486.

[442]
CHAP. XXXIX.] THE ARREST, ETC. § 626

an actual arrest, and the taking of the offender to prison or
into the presence of the magistrate; yet it may be, and in
some cases ought to be. A plea of justification, in such a
case, where the party arresting is sued for the arrest, must
contain a direct averment that there was an affray or breach
of the peace continuing at the time of the arrest; or, if it had
subsided, that there was a well-founded apprehension of its
renewal.?

§ 624. And the rule which controls the matter of arrest,
by private persons, in cases of affray and the like, applies
also, in one respect, in all other misdemeanors ; namely, that
a private person (and the same is true of an officer), acting
without a warrant,? cannot make the arrest for a misdemean-
or committed on an occasion which has already passed.?

§ 625. In felonies and in treason, however, the rule is dif-
ferent ; and it is, that, if the offence has been in fact commit-
ted, and the private person has reasonable cause to suspect 4
particular person to be guilty of its commission, he may, act-
ing in good faith, arrest such person; and he will not be liable,
either in a civil or criminal prosecution, should the suspicion
prove unfounded.* But ifthe offence has not in fact been
committed by any one, he may be compelled, on a civil suit,
to pay damages to the party arrested, however strong or rea-
sonable may have been his suspicions.’ Yet possibly such a
matter may be shown in mitigation of damages.* The doctrine
of this section extends to all felonies, even to petit larceny.7

§ 626. The remaining question under this sub-title is,
whether the same right which private persons have to arrest

1 Price v, Seeley, 10 Cl. & F. 28.
Arid see Knot v. Gay, 1 Root, 66.

2 Ante, § 619.

3 Fox v. Gaunt, 3 B. & Ad. 798. See
Mathews v. Biddulph, 4 Scott, N. R.
54,1 Dowl. wn. 8.216; Butler v. Tur-
ley, 2 Car. & P. 585.

4 Ledwith v. Catchpole, Cald. 291 ;
Brockway v. Crawford, 3 Jones, N. C.
483; Holley v. Mix, 3 Wend. 350;
Wakely v. Hart, 6 Binn. 316; Com-
monwealth v. Deacon, 8 S, & R. 47 ;.
Wrexford v. Smith, 2 Root, 171; Ash-

ley’s case, 12 Co. 90; Long ». The
State, 12 Ga. 293 ; The State v. Roane,
2 Dev. 58. See post, § 638.

5 Holley v. Mix, supra; Wakely v.
Hart, supra; Findlay v. Bruitt, 9 Port.
195 ; Adams »v. Moore, 2 Selw. N. P.
934; Allen v. Wright, 8 Car. & P. 522;
Davis v. Russell, 2 Moore & P. 590, 5
Bing. 354; Cowles v. Dunbar, 2 Car.
& P. 565.

8 Sugg v. Pool, 2 Stew. & P. 196 ;
Rogers v. Wilson, Minor, 407.

7 People v. Adler, 3 Parker C. C. 249.

[443]
§ 627 PRACTICE. [BOOK VI.

those who are engaged in affrays and riots, extends also to
other misdemeanors, or to what others; the arrests being
made while the offenders are in the actual perpetration of
crime. When the crime is a felony, we should remember,
the law casts upon all persons present the duty to make the
arrest, and punishes the neglect of this duty by fine and im-
prisonment.1_ No one supposes this duty extends to cases of
misdemeanor ; therefore we are now inquiring after the mere
right. In the old book on “ The Law of Arrests,” from
which we have made some previous quotations,? we read as
follows: “Any private person may arrest a common notorious
cheat, going about in the country with false dice, and being
actually caught playing with them, in order to have him be-
fore a justice of the peace ; for, as the discouragement of such
offenders is for the public good, the restraining private per-
sons from arresting them without a warrant from a magis-
trate would be consequently prejudicial, because it would
give them an opportunity of escaping, and continuing their
offences without punishment. And for the same reason an
arrest of an offender by a private person, for any crime preju-
dicial to the public, seems to be justifiable.’? And Haw-
kins says: “It is holden by some, that any private person
may lawfully arrest a suspicious night-walker, and detain him
till he make it appear that he is a person of good reputation.
Also it hath been adjudged,” &c., repeating the statement of
the law substantially as it is given in the above quotation.‘

§ 627. Likewise it has been adjudged, that, if a person com-
mits a forcible entry amounting to a breach of the peace, in
the presence of a constable, he may be taken into custody by
the latter without a warrant ; and he cannot maintain an ac-
tion against a bystander for directing the constable to per-
form his duty. But the right of the bystander, where there
is no officer of the law present, may not necessarily be the
same.® And in other classes of cases there is still wider room
for doubt. :

1 Ante, § 621. 4 2 Hawk. P. C. vu. 12, § 20.
2 See ante, § 613, note. 5 Dearcourt v. Corbishley, 5 Ellis &
3 Law of Arrests, 204, 205. B. 188, 32 Eng. L. & Eq. 186. And

© [444]
CHAP. XXXIX.] THE ARREST, ETC. § 630

§ 628. Looking, then, at the reason of the law, where we
find it imperfectly settled and somewhat uncertain in author-
ity, we have the following. Ifa person is present when an-
other is committing a crime, it is incumbent on him to do
something to prevent the crime, and, failing in this, to bring
the criminal to justice. When the crime is felony or treason,
the duty, as we have seen, is accompanied with the penalty of
fine and imprisonment for its neglect. But when the crime
is of a lower grade, and, in one sense, the duty is a mere
moral one, the reason of the thing would seem to be, that the
law will permit the person, if he is disposed, to discharge this
moral duty, by interfering to prevent the commission of the
crime, or to arrest the criminal, or both. Yet the law might
not allow this duty to be carried to all lengths. If the thing
done was merely malum prohibitum, not being malum in se,
or was of a nature not immediately disturbing the public re-
pose, and not offending public morals, or the like, so injudi-
cious would it be to make the arrest without a warrant, by a
private person, when no perceptible harm would come from
the delay necessary to call in public authority, that the courts
could hardly be expected to sanction such an arrest. Indeed,
it is very uncertain how far the courts would go, in the midst
of any facts standing on this shadowy ground of legal doubt.

§ 629. The right and duty of private persons to assist offi-
cers in making arrests is matter to be considered, in connec-
tion with our discussion of arrests by officers, under succeed-
ing sub-titles.

Ill. The Arrest, without Warrant, by the Officers of the Law.

§ 630. The most obvious proposition under this sub-title
is, that, whenever the circumstances of a case would justify
a private person in making an arrest without a warrant, they
will equally justify a constable, sheriff, or watchman.1 How

see, in connection with this case, and as Noden ». Johnson, 16 Q. B. 218, 2 Eng.
perhaps shedding some light on this L. & Eq. 201; Mackaley’s case, Cro.
matter, Wheeler ’v. Whiting, 9 Car & Jac. 279; Spalding v. Preston, 21 Vt.
P. 262 ; Cowardv Baddeley,4H.&N. 9; Rex v. Curran, 3 Car. & P. 397.
478; Reg. v. Phelps, Car. & M.180; 1 2 Hawk. P.C. ¢. 13, § 1.

voL 38 [445]
§ 631 PRACTICE, [BOOK VI.

much further the right of these officers goes we shall consider
after we have taken a view of the law relating to the office of —

§ 631. Justice of the Peace. In very ancient times, in
England, there were, in every county, chosen by the people,-
conservators of the peace, whose office it was, as Lord Coke.
observes,! “ to conserve the king’s peace, and to protect the
obedient and innocent subjects from force and violence.”
This was. by the common law ; and, upog this state of things
came, in 1327, Stat. 1 Edw. 3, c. 16, as follows: “For the
better keeping and maintenance-of the peace, the king will,
that in every county good men and lawful, which be no main-
tainers of evil, or barrators in the county, shall be assigned to
keep the peace.” “From which act,” it is said in Burn’s
Justice,? “ we are to date that final alteration in our consti-
tution, whereby the election of conservators of the peace was
taken from the people, and translated to the assignment of
the king. By this statute, however, at first, no other power
was given but that of keeping the peace; the more honorable
title of justices even was not conferred, the parties elected
being still only called conservators, wardens, or keepers of
the peace. But the very next year, the form of the com-
mission was enlarged, and continued still further to be en-
larged, both in that king’s reign, and in the reign of al-
most every other succeeding prince, until the thirtieth year
of the reign of Queen Elizabeth, when, by the number
of the statutes particularly given in charge therein to the
justices, many of which, nevertheless, had been a good while
before repealed, and, by much vain repetition and other cor-
Tuptions that had crept into it, partly by the miswriting of
clerks, and partly by the untoward huddling of things togeth-
er, it was become so cumbersome and foully blemished that
of necessity it ought to be redressed. Which imperfections
being made known to Sir Charles Wrey, then Lord Chief Jus-
tice of the King’s Bench, he communicated the same with
the other judges and barons, so as, by a general conference
had amongst them, the commission was carefully refined in

1 2 Inst. 558. 2 Burn Just. tit. Justices of the Peace.
[446].
CHAP. XXXIX.] THE ARREST, ETC. § 633

the Michaelmas term, 1590; and, being then also presented
to the Lord Chancellor, he accepted thereof, and commanded
the same to be used; which continues with very little altera-
tion to this day.”

§ 632. Reading on in this place we have the following:
“This commission consists of two parts, or two different as-
signments. By the first assignment, any one or more justi-
ces have, not only all the ancient power touching the peace,
which the conservators of the peace had at the common law,
but also that whole authority which the statutes have since
added'thereto. The second assignment defines their powers
in Sessions.” 2

§ 633. The result of all this is, that, when our forefathers
came to this country, bringing with them so much of the law
of England, statutory and common, as was adapted to their
new situation and circumstances, they made the law of Eng-
land, as thus stated, a part of their unwritten law.2 At the
same time, it is believed that the judges in many of our States
look chiefly to their own statutes to determine the authority
of justices of the peace ; while, on principle, and according to
the practice in other States, the statutory enumeration should
not be held to exclude the common-law powers, except in so far
as it is repugnant to them. In Massachusetts, in accordance
with a rule of statutory interpretation which may be deemed
local to this and a few other of the States,? Sewall, J. ob-
served: “The statutes which, since the present constitution,
have been enacted on this subject, have enumerated very:
particularly the powers and duties of justices of the peace,
both in civil and criminal matters. And this enumeration is
so complete as to leave very little, if any, occasion of recur-
ring to the ancient English statutes, for the powers of this
office ; and perhaps the enumeration itself may be construed
to preclude such recurrence for the purpose of inferring any
power not enumerated.” 4

1 See also 4 Inst. 171. The reader 3 Crim. Law, I. § 197 - 200.
will find the commission in full in Burn 4 Commonwealth v. Foster, 1 Mass.
‘Just. tit. Justices of the Peace. 488, 490.

2 Commonwealth v. Leach, 1 Mass. 59.

[447]
§ 635 PRACTICE. [BOOK VI.

§ 634. There are in the books passages which seem to im-
ply, that a justice of the peace may arrest, by his own manual
force, offenders against the laws, under circumstances in which
the arrest could not be made by a private individual! Per-
haps this may have been so anciently, before the office of a
justice became so far judicial as it is at present ; and possibly
it is so even now. But justices of the peace are now pro-
vided with under officers whom they are to command, and
their regular course of proceeding is to issue their verbal or-
der or their warrant, and not to serve as servant to them-
selves. Therefore “it is a general rule, that, where any stat-
ute gives a justice of the peace jurisdiction over any offence,
or power to require a person to do a certain thing men-
tioned in the statute, by implication it gives a power to the

“justice to grant his warrant to bring the person accused of

. such offence, or the person that is compellable to do the thing
ordained by the statute. For to what purpose would it be, to
give the justice authority to require any person to do a thing,
if he had not power to compel the person to come before him,
in order to proceed therein ?” 2

§ 685. When, therefore, a justice of the peace is command-
ed by statute to keep the peace, by construction he is author-
ized to call upon his officers and upon private individuals for
such assistance as a consideration of his office renders it in-
cumbent on them to perform. And Hawkins says: “It
seems that any such justice may lawfully, by word of mouth,
authorize any one to arrest another, who shall be guilty of
any actual breach of the peace in his presence, or shall be
engaged in a riot in his absence.”? As to the last point,
while, in England, under the ancient law, a justice of the
peace may direct his warrant to a private individual who is
thus authorized to serve it, in many of our States he cannot,
though in others he can ;* and it is not probable the courts
would hold, that he can verbally empower one to go and ar-

1 See Law of Arrests, 171; Holcomb 8 9 Hawk. P. C. e. 13, § 14.
v. Cornish, 8 Conn. 375. 4 See post, § 645,

2 Law of Arrests, 172. And see ;
Crim. Law, I. § 138, 186 and note.

[448]
CHAP. XXXIX.] THE ARREST, ETC. § 638

rest another, when he could not confer the power by written
warrant. . :

§ 636. If an offence is committed in the court of a magis-
trate, in his presence, he may verbally authorize the attend-
ing officer to take the offender into custody; no warrant
being necessary in the first instance.1 Likewise, if an arrest
is made without warrant, in a case where such an arrest
is lawful, and the offender is brought before a magistrate,
the latter may take jurisdiction and proceed to judgment
without issuing a warrant of arrest. For ‘why issue a war-
rant for the apprehension of a party already in custody ?” #
But a written complaint or information against the party,
setting out his offence, is as necessary in such a case as in
any other.3 —

§ 687. This view of the matter leaves it still uncertain to
precisely what extent justices of the peace can authorize ar-
rests without warrant. This and some other like questions
will in some States be found answered on consulting the stat-
utes ; and, where the question depends upon the common
law, the practical difficulties will be found to be less than the,
theoretical.

§ 638. Sheriffs, Constables, Police officers, and the like.
The sheriff is, ex officio, a conservator of the peace.* So, in
a measure, are constables, watchmen, and other like officers.
There may be some difference in the powers of these several
officers to make arrests ; if so, the differences are not very
distinctly laid down in the common law. On this subject, as

1 Lancaster v. Lane, 19 Ill. 242. In court. It would have been a useless

this case, an assault had been commit-
ted in the presence of a justice of the
peace, in open court. A statute provid-
ed, that, “in all cases of assault and
battery, and frays, any justice of the
peace may, upon his own knowledge,
or upon the oath of any competent per-
son, issue his warrant to any constable
of the county. for the arrest of every
person charged with either of said of-
fences,” &c. And Breese, J. said : “ The
offendér was in court, and therefore no
warrant was necessary to bring him into

38 *

act to have issued a warrant. The mag-
istrate had the right to order him in-
stantly into custody, and not give him
a chance to escape while. he is making
out a warrant. The office of a warrant
is to do that which was already done.”
p- 245. And see O’Brian v. The State,
12 Ind. 369; Holcomb v. Cornish, 8
Conn. 375.

2 Hoggatt v. Bigley, 6 Humph. 236,

8 Tracy v. Williams, 4 Conn. 107.

* Coyles v. Hurtin, 10 Johns. 85.

[449]
§ 639 PRACTICE. [BOOK VI.

on the powers of justices of the peace, it is well that the read-
er should consult the statutes of his own State. None of
these officers can lawfully make an arrest, without a warrant,
for a past offence of a grade lower than a felony.’ If the of-
fence is a past one, and amounts to felony or treason, the
difference between the power of a sheriff or constable or other
peace officer, on the one hand, and a private person, on the
other hand, to make the arrest, is this: if it turns out that
the person arrested is not guilty, the private person is not
justified unless the offence had been committed by some one;
while the officer is justified though no offence had been com-
mitted ; yet both must have had reasonable cause to suspect
the person apprehended.2 For when a charge of this high
nature is made to an officer of this sort, he is bound to act
upon it, and pursue and arrest the suspected person at once ;?
and it would block the wheels of justice if the officer of
the law could not do his official duty, without being answer-
able in damages to the party should the event prove that
the reasonable suspicion could not be made good by evi-
dence.

§ 639. What is a reasonable and proper cause to suspect
the person who is to be arrested, is, in exact language, a ques-
tion of law, and it is a question of fact whether or not the
circumstances constituting such cause exist; therefore, on the
trial of an officer at the suit of the arrested party, the ques-
tion is ordinarily to be submitted to the jury as a mixed one
of law and fact. A proclamation by the governor, published
in pursuance of law, announcing the commission of a felony,
is a sufficient justification for a peace officer, who arrests the
suspected felon.6 And watchmen and beadles have authori-
ty at the common law to arrest and detain in prison, for ex-

1 Commonwealth v, Carey,12 Cush. v. Hedger, 3 Taunt. 14; Samuel v.
246; Commonwealth ». McLaughlin, Payne, 1 Doug. 359 ; Ledwith v. Catch-
12 Cush. 615. pole, Cald. 291 ; Rex v, Woolmer, 1

2 Ante, § 624; Davis v. Russell, 2 Moody, 334; Nicholson v. Hardwick,
Moore & P. 590, 5 Bing. 354; Hanes v. 5 Car, & P. 495.

The State, 6 Humph. 53; Rohan »v. 8 Cowles v. Dunbar, 2 Car. & P. 565.
Sawin, 5 Cush. 281 ; Beckwith v. Phil- 4 Davis v. Russell, 2 Moore & P. 590,

by, 6B. & C. 635, 9 D.& R.487; Hobbs 5 Bing. 354.
v. Branscomb, 3 Camp. 420; Lawrence 5 Eanes v. The State, 6 Humph. 53.

[450]
CHAP. XXXIX.] THE ARREST, ETC. § 640

amination, persons walking the streets at night, whom there
is reasonable ground to suspect of felony, although there is
no proof of a felony having been committed.}

§ 640. Bearing in mind now, that, for a past offence below
a felony, these officers of the peace cannot, more than private
persons, arrest the offenders without a warrant, let us consid-
er what they can do when the criminal act is being committed
in their presence. It is plain that they can do in this way
what we have seen private persons can ;? yet it is not clear
precisely how much further they can go. For instance, “from
time immemorial constables and watchmen had authority,
without warrant, to arrest those whom they saw engaged in
an affray or breach of the peace, and to detain them until
they should find proper sureties.” ® And it has been laid
down in broad terms, that the officers of the government have
authority, derived from the general rights of the government,
without any statute whatever on the subject, to exercise all
necessary force for the prevention of crime, either by the ar-
rest of individuals, or by the seizure and detention of the in-
struments of crime.* This proposition, if it is accepted as
sound in law, cannot apply to every officer, but only to such
as are charged with duties of this general kind; for example,
to sheriffs, constables, and the like. And it is not safe to ac-
cept this proposition without limiting it still further. Thus
it was laid down in New Hampshire, that constables and po-
lice officers have power to arrest in many cases, upon their
own view of an offence committed, — as, at common law, for
breaches of the peace, and, by statute, for the breach of police
regulations, — but they have no such power in a case of
placing a nuisance, not specified in the police law, in a high-
way.5 Yet, on the other hand, it can hardly be doubted that
there may be circumstances in which the persistent conduct
of placing and continuing to place nuisances in a public and
thronged street would justify the police officers of the law in

1 Lawrence v. Hedger, 3 Taunt. 14. Deacon, 8S. & R. 47; The State wv
~ 2 Ante, § 623, 626 - 628. Brown, 5 Harring. Del. 505.
8 City Council v. Payne, 2 Nott & 4 Spalding v. Preston, 21 Vt. 9.
McC. 475, 478; Commonwealth v. 5 Donovan v. Jones, 36 N. H. 246.
[451]
§ 641

PRACTICE.

[BOOK VI.

interfering, by arresting the wrong-doer, without waiting to
obtain a warrant from a magistrate.

§ 641. The right of arrest by the officers of the peace is
more or less enlarged by statutory regulations in the several
States, as well as, of late, in England; or, if not enlarged,
defined. A digest of some cases, both under statutes and at

the common law, is appended in a note.!

1 If a person, playing music in a pub-
lic thoroughfare, collects thereby a crowd
of people, a policeman is justified in
desiring him to go on, and in laying his
hand on him, and slightly pushing him
to give effect to his remonstrance ; and,
if the person, on so small a provocation,
strikes the policeman with a dangerous
weapon, and kills him, it will be mur-
der ; but otherwise, if the policeman
gives him a blow and knocks him down.
Reg. v. Hagan, 8 Car. & P. 167. And
see Hardy v. Murphy, | Esp. 294. A
was indicted for assaulting a policeman
in the execution of his duty. It ap-
peared that the policeman had gone into
a public house where the defendant was
having high words with the landlady.
The defendant tried to go into a room
in the house in which a guest was, and
the policeman, without being desired to
do so, collared him, and prevented him
from going into the room, and A struck
the policeman, and several blows passed
on both sides. It was thereupon held,
that, if the jury were satisfied no breach
of the peace was likely to be committed
by the defendant on the guest in the
room, it was no part of the policeman’s
duty to prevent the defendant from en-
tering it; but, assuming this to be so,
if the defendant used more violence than
was necessary to repel the assault com-
mitted on him by the policeman, the de-
fendant would be liable to be convicted
of a common assault. Reg. v, Mabel, 9
Car. & P. 474. A person went to u
house at night, demanding to see the
servant. He was told to depart, and
would not. A constable was sent for,
and the person went from the house to

[452]

The reader should

the garden. When the constable ar-
rived, the former said, that, if a light
appeared at the windows, he would
break them; upon which the constable
took him into custody. This arrest
was held not to be justifiable. ‘‘ There
was,” said the judge, “no breach of the
peace, when the prisoner was taken into
custody. If death had ensued from the
prisoner’s resistance, it would not have
been murder, but manslaughter.” Rex
v. Bright, 4 Car. & P. 387. A police
officer hearing a noise in a public house
at one o’clock in the night, entered the
house, the door being open ; and it was
held that he was justifiable. ‘‘ This is
not like the case of a private house. It
being a public house, he had a right to
enter.” Rex v. Smith, 6 Car. & P. 186.
One of the marshals of the city of Lon-
don, whose duty it was on the day of a
public meeting at Guildhall to see that
a passage was kept for the transit of the
members of the corporation and others
to their carriages, directed a person in
the front of a crowd at the entrance to
stand back ; and, on being told by him
that he could not, by reason of those
behind, immediately struck him in
the face, saying he would make him.
It was held that the marshal, in so
doing, exceeded his authority, and that
he should have confined himself to the
use of pressure, and should ‘have waited
a shbrt time to afford an opportunity
for removing the party in a more peace-
able way. ‘“ Undoubtedly,” said Tin-
dal, C. J. ‘ the defendant would be jus-
tified in using a moderate degree of
pressure to remove » person opposing
those for whom he was bound in the
CHAP. XXXIX. ]

THE ARREST, ETC.

§ 641

carefully examine questions of this sort in connection with
the statute book of his own State.

discharge of his duty to make a passage.
Or, if any resistance occurred, then a
more violent degree of pressure might
be used.” Imason v. Cope, 5 Car. & P.
193. If apolice constable, on being sent
for at a late hour of the night to clear
a beer-house, does so; and one of the
persons, on the rest leaving the house,
and being told to go away, refuses,
and uses threatening language, the po-
lice constable is justified in laying hands
on him toremovehim. And Williams,
J. said to the jury in this case: “If a
policeman is called upon to send guests
away from a public house, who may be
disorderly or unwilling to go, if he does
send them away, he is doing nothing
but what is within the line of his duty,
and what is perfectly necessary for the
‘preservation of order. Twenty minutes
to twelve o’clock at night is a time at
which it is convenient and right that a
public house should be cleared ; conse-
quently, if a policeman had -heard any
noise there, he would have acted within
the line of his duty if he had gone in
and insisted that the house should be
cleared ; and much more so, if he was
required by the landlady. ... . And if
anything was saying or doing, likely to
lead to a breach of the peace, the po-
liceman was not only bound to inter-
fere, but it would have been a breach of
his duty if he had not done so. One
great use of these police constables is
to prevent mischief in the bud, and to
interfere as early as possible before it
breaks out; and, if in so doing he or-
dered the people to go away, and any
one was unwilling, and defied the po-
liceman, and used threatening language,
the policeman was perfectly justified in
insisting upon that person going off.
And if he had warned him several times,
and he would not go away, and used
threatening language, if any one ven-
tured to touch him, the policeman was
entirely justified in using a degree of

violence to push him from the place, in
order to get him to go home.” Rex v.
Hems, 7 Car. & P. 812, 313. A police
constable is not justified under Stat. 10
Geo. 4, c. 44, § 7, in laying hold of,
pushing along the highway, and order-
ing to be off, a person found by him
conversing in a crowd with another,
merely because the person with whom
he happens to be conversing is known
to be a reputed thief. Stocken v. Car-
ter, 4 Car.& P. 477. The English stat-
ute 7 & 8 Geo. 4, cv. 30, relative to ma-
licious injuries to property, provided,
§ 38, “that any person found commit-
ting any offence against this act, wheth-
er the same be punishable upon indict-
ment or upon summary conviction, may
be immediately apprehended without a
warrant by any peace officer,” &c. And
it was held, that, to justify the arrest,
the offender must be taken in the fact,
or on quick pursuit. Hanway v. Boult-
bee, 4 Car. & P. 350, 1 Moody & R. 15,
A constable is not justified in taking a
person into custody for mere assault,
unless he is present at the time. “ But
I should hold,” said Eyre, C. J. “that, if
an affray has happened, and a blow or
wound has been received likely to end
in a felony, that will authorize the con-
stable to take the party into custody
without any warrant.” Coupey v. Hen-
ley, 2 Esp. 540, When a policeman
saw a man assault but not beat his
wife, the policeman was held to be jus-
tified in arresting the man after he had
left the house in which the assault took
place. Reg. v. Light, Dears. & B. 332,
7 Cox C.C. 389. In New York it was
held, that a constable may, ex officio,
and without warrant, arrest a breaker
of the peace who commits the act in his
presence, and bring him before a justice
of the peace; yet, it seems, this should
be done within a reasonable time af-
ter the affray. And Marcy, J. said :
“ The power with which the constable

[453]
§ 642

PRACTICE.

[BOOK VI

§ 642. “ But,” says Hawkins, “the chief difference be-
tween the power and duty of a constable and a private per-

is invested is not merely to put an end
to the affray, but he is to make the ar-
rest as the means of procuring surety
of the offender to keep the peace. To
do this, he must be allotved a reason-
able time and a fit opportunity.” Tay-
lor ‘v. Strong, 3 Wend. 384, 386. In
England, the prosecutor, a sergeant of
police, was assaulted by the prisoner ;
and, about two hours afterward, having
obtained assistance, attempted, without
having any warrant, to take the pris-
oner into custody, when he was again
violently assaulted and wounded by the
prisoner. Held, that the apprehension
was not lawful; and, therefore, that the
prisoner was improperly convicted of
* wounding to prevent his lawful ap-
prehension.” Said Pollock, C. B.:
“ There was no continued pursuit of the
prisoner, and the interference of the
prosecutor was not for the purpose of
preventing an affray, nor of arresting
& person whom he had seen committing
an assault.” And Parke, B. observed :
“The officer might arrest if there was
danger of an affray being renewed.”
Reg. v. Walker, Dears. 358, 6 Cox C.
C. 371, 25 Eng. L. & Eq. 589. An ar-
rest of a person asa vagrant may be
made without a warrant under the ordi-
nance of the city of St. Louis. But
where one charged as a vagrant is re-
leased on condition that he shall leave
the place within a time specified, a po-
lice officer, finding him after the lapse
of this time, has no right to arrest him
then, for the mere breach of the condi-
tion, if he has no warrant of arrest.
This decision was put upon the follow-
ing ground: “It is quite apparent that
the breach of promise by the defend-
ant did not of itself warrant the ar-
rest. The agreement between the city
authorities and the defendant was not
authorized by any law or ordinance,
and was void, and a breach of it was
no offence.” Roberts v. The State, 14

[454]

Misso. 138. In another case, A was ar-
rested under the city ordinance as a va-
grant, and confined in the calaboose ;
but he was liberated upon his promise
to leave the city within a stipulated
time, which promise he did not fulfil,
and his redtrest was ordered by the city
marshal. In attempting his rearrest
without a warrant, B, a watchman (and
a member of the police), was killed, and
A was indicted for murder. Held, that
the breach of his promise, by A,. consti-
tuted no legal grounds for his rearrest.
Also it was held not to be necessary to
aver in the indictment, that A was a
vagrant, or that B was a police officer,
as it would be in an indictment for re-
sisting an officer in the discharge of his
duty. The State v. Roberts, 15 Misso.
28. In England, in trespass by A
against B for false imprisonment, B
justified on the ground of A having
wilfully and without excuse, within view
of the constable who apprehended her,
annoyed and disturbed the defendant
and his family by knocking and ringing
athisdoor. It was held, that, to support
this plea, under sects. 54 and 63 of the 2 &
3 Vict. c. 47 (Metropolitan Police Act),
it was necessary to prove the offence
to have been committed within view
of the constable. Moreover the plea
was held to afford no justification under
§ 66 of that act; inasmuch as it did not
allege that A was found committing
the offence at the time of apprehension,
or that B was the owner of the prop-
erty on or with respect to which the of-
fence was committed. Simmons ». Mil-
lingen, 2C. B. 524. A statute author-
ized the officer of the peace to “ take
into custody, without warrant, all loose,
idle, disorderly persons, whom he shall
find disturbing the ‘public peace, or
whom he shall have good cause to sus-
pect of having committed or intending
to commit any felony, misdemeanor, or
breach of the peace, and all persons
CHAP. XXXIX.] THE ARREST, ETC. § 642

son, in respect of such arrests, seems to be this, that the for-
mer has the greater authority to demand the assistance of
others, and is liable to the severer fine for any neglect of this
kind, and has no sure way to discharge himself of the arrest
of any person apprehended by him for felony, without bring-
ing him before a justice of peace in order to be examined ;
whereas a private person, having made such an arrest, needs
only to deliver his prisoner into the hands of the constable.” 2
Accordingly it is in the power of an officer making an arrest,
though without a warrant, to call in the aid of the bystand-
ers; and a bystander, refusing, is indictable at the common
law for the refusal. Not technically, indeed, are this right
and obligation limited to the bystanders ; for the expression
in the books is broad, that, for instance, the sheriff may call
out the power of the county ; or, in other words, the officer
may command the inhabitants of his precinct. And this doc-
trine of the law extends, not merely to the arrest, but equally
to the detaining of the prisoner after the arrest is made. It
extends also and equally to arrests made by virtue of a war-
rant; likewise to preserving the peace in cases of affrays and
the like.? Moreover, if any one obstructs the officer in the
performance of these duties, he may take into custody the
person obstructing ; though he is not justified in needlessly
giving him a blow, or beating him.? This doctrine applies

whom he shall find, between sunset and
the hour of eight in the forenoon, lying
in any highway,” &c. And it was held,
that a police constable has no power,
under this act, to take a person into
custody without a warrant, merely on
suspicion of his having committed a
misdemeanor. Bowditch v. Balchin, 5
Exch. 378. Statutes in restraint of per-

whom they have reason to believe en-
gaged in the insurrection; and may
order a house to be forcibly entered and
searched, when there are reasonable
grounds for supposing he may be there
concealed : but they are not authorized
to use more force than is necessary to
accomplish the object, and will be liable
for any oppressive abuse of power, and

sonal liberty are to be strictly constru-
ed, and with reference to the judicial de-
cisions and practice prevalent at the time
of and before their adoption. Ram-
sey v. Foy, 10 Ind. 493. Where mar-
tial law is declared by a State, for the
purpose of putting down an insurrec-
tion, the officers engaged in its military
service may lawfully arrest any one

wilful injury to person or property.
Luther v. Borden, 7 How. U. S. 1.
1 2 Hawk. P. C. c. 13, § 7.

.2 The State v. Shaw, 3 Ire. 20;
Coyles v. Hurtin, 10 Johns. 85 ; Mitch-
ell v. The State, 7 Eng. 50.

8 Levy v. Edwards, 1 Car. & P. 40 ;
Anonymous, | East P. C. 305 ; Coyles
v. Hurtin, supra.

[455]
§ 643 PRACTICE. [BOOK Vv

also where one encourages a person arrested, or being arrest-
ed, to resist ; for such interference the former may be taken
into custody.!

§ 648. To justify persons acting under an officer, -as thus
pointed out, he must be in some sense present with and com-
manding them. There is no precise distance which he and
his assistants may be apart; but, where a sheriff is endeav-
oring to make an arrest, or preserve the peace, and he has
called in others to assist him, he is, though absent from the
particular place occupied by them, to be deemed constructive-
ly present, within this rule, if his absence is in furtherance
of the common design. ‘ The sheriff,” said Kent, C. J. “is,
gquodam modo, present by ‘his authority, if he be actually en-
gaged in efforts to arrest, dum fervet opus,and has commanded
and is continuing to command and procure assistance. When
he is calling on the power of the county, or a requisite por-
tion of it, to enable him to overcome resistance, it would be
impossible that he should be actually present in every place
where power might be wanting. The law is not so unreason-
able as to require the officer to be an eye or ear witness of
what passes, and to render all his authority null and void, ex-
cept when he is so present.” In this case, the sheriff’s ab-
sence was to procure more assistance ; and the court held,
that those whom he left behind to guard a house in which
were assembled the persons who were to be arrested, could
not lawfully, during this his temporary absence, permit them
to escape.2, What notification the officer must give the person
whom he is arresting, has been partly considered,? and it will
further appear under our next sub-title.

1 White v. Edmunds, Peake, 89.

2 Coyles v. Hurtin, 10 Johns. 85, Spen-
cer, J. dissenting. And see, to the like
effect, Commonwealth v. Field, 13 Mass.
321. A constable, having a warrant to
arrest a person, gave it to his son, who
executed it while his father the constable
was in sight, half a mile off ; and it was
held, that the arrest was illegal. Rex
v. Patience, 7 Car. & P. 775. A sheriff

[456]

cannot constitute a deputy for a partic-
ular act, except by warrant in writing ;
and the arrest on a bench warrant, di-
rected to the sheriff, of a person indict-
ed, and under recognizance to appear,
by one‘having only verbal authority
from the sheriff, is illegal, and does not
discharge the recognizance. People v.
Moore, 2 Doug. Mich. 1.
5 Ante, § 615.
CHAP. XXXIX.] THE ARREST, ETC. § 645

IV. The Arrest under Warrant.

§ 644. It does not belong to this place to inquire by whom
the warrant may be issued, or what is its proper form. Where
a warrant in due form is put into the hand of an officer to
whom it is addressed, he is justified in executing it, if the
magistrate who issued it had jurisdiction over the cause,
even though it was improperly or unlawfully obtained. But
it is otherwise if the warrant is illegal on its face, or if the
magistrate had no jurisdiction, which question of jurisdic-
tion the officer must decide at his peril. And if, in a civil
case, an arrest is made after the process is returnable, the offi-
cer becomes thereby a trespasser.2 Where the process under
which an officer makes an arrest is voidable, by reason of
some irregularity or mistake, he is justified, though he is not
so when it is void.’

§ 645. Hawkins says that the warrant of arrest issued by a
justice of the peace “ may be directed to the sheriff, bailiff,
constable ; or to any indifferent person by name, who is no
officer ; for that the justice may authorize any one to be his

1 Gramon v. Raymond, 1 Conn. 40 ;
The State v. Crow, 6 Eng. 642 ; Durr
v. Howard, 1 Eng. 461; Noles v. The
State, 24 Ala. 672; The State v. Mc-
Donald, 3 Dev. 468 ; Lampson v. Lan-
don, 5 Day; 506, 508 ; Griswold v. Sedg-
wick, 6 Cow. 456 ; Sanford v. Nichols,
13 Mass. 286 ; Reynolds v. Corp, 3
Caines, 267; Hall v. Howd, 10 Conn.
514; Welch v. Scott, 5 Ire. 72; Donahoe
v. Shed, 8 Met. 326; Rex v. Hood, 1
Moody, 281; People v. Koeber, 7 Hill,
N. Y. 39; Camp 2. Moseley, 2 Fla. 171;
Sleight v. Ogle, 4 E. D. Smith, 445 ;
Moore v. Watts, Breese, 18 ; Gurney v.
Tufts, 37 Maine, 130. It is the duty of
an officer intrusted with process which
is legal and regular upon its face, to
serve the same ; and he will be protected
in so doing, although he knew at the
time that the process was obtained for
an undue purpose. The Statev. Weed,
1 Fost. N. H. 262.

VOL. I. 39

2 Stoyel v. Lawrence, 3 Day, 1;
Prescott v. Wright, 6 Mass. 20.

3 Nichols », Thomas, 4 Mass. 232,
234; Pearce v. Atwood, 13 Mass. 324 ;
Sanford v. Nichols, 18 Mass. 286, 288 ;
Hoit v. Hook, 14 Mass. 210,218. And
see Boyd v. The State, 17 Ga. 194. Chit-
ty says: “If the warrant be, in itself,
defective; if it be not enforced by a
proper officer ; or, if it be executed out
of the jurisdiction, without being back-
ed by the magistrate; or the wrong per-
son be taken under it; the party may
legally resist the attempt to apprehend
him, and even third persons may law-
fully interfere to oppose it, doing no
more than is necessary for that purpose.
But if the process be legal and duly ex-
ecuted, resistance and interference are
illegal, and subject the parties to an in-
dictment or attachment.” 1 Chit. Crim.
Law, 60, 61.

[457]
§ 647 PRACTICE. [BOOK VI.

officer, whom he pleases to make such. Yet,” he adds, “ it
is most advisable to direct it to the constable of the precinct
wherein it is to be executed ; for that no other constable, and
a fortiori no private person, is compellable to serve it.”1 In
some of our States, the magistrate has power to direct his
warrant to a private person ;7 but, in others, this power either
exists not at all, or exists under restrictions.? In North Car-
olina it was held, that, where a person who is not a regular
officer, but is specially deputed under the statute to serve a
criminal warrant, makes an arrest, and returns the warrant to
a justice of the peace, who acts upon the case, his authority
is at an end ; and he is not indictable for permitting an escape,
because he neglected to commit the prisoner, after the justice
had by parole ordered him to make a commitment.*

§ 646. Chitty says: “ With respect to the person who may
execute the warrant, it seems that, if it be directed to the
sheriff, he may authorize others to execute it [not verbally,
however, for the deputy must be constituted such by a writ-
ten instrument]; but that, if it be given to an inferior officer,
he must personally put it in force, though any one may law-
fully assist him. And if a warrant were generally directed
to all constables, no one could act under it out of his own
precinct ; and, if he did, he would have been a trespasser.
But if it were directed to a particular constable by name, he
might execute it anywhere within the jurisdiction of the jus-
tice by whom it was granted; because, as we have seen, a
justice may direct his warrant to any person he may think
fit; in which case, by the express nomination of the party,
his authority becomes coextensive with that of the magis-
trate.” ®

§ 647. We have already considered, in a general way, how
an arrest should be made.’ Hawkins says: “A bailiff or a

12 Hawk. P.C. c 18, §27. “A 3 Conimonwealth v. Foster, 1 Mass.
justice of peace may direct his warrant 488; Noles v. The State, 24 Ala. 672.
to any person to execute it.” Holt, C. * The State v. Dean, 3 Jones, N. C.
J.in Kendal’s case, 5 Mod. 78, 81. 393.

2 Commonwealth v. Keeper of Prison, 5 Ante, § 648, note. |
1 Ashm. 183; Kelsey v. Parmelee, 15 6 1 Chit. Crim. Law, 48.

Conn, 260. 7 Ante, § 613 - 620.

[458]
CHAP. XXXIX.] THE ARREST, ETC. § 648

constable, if they be sworn, and commonly known to be of-
ficers, and act within their own precincts, need not show their
warrant to the party, notwithstanding he demand the sight of
it; but these and all other persons whatsoever, making an
arrest, ought to acquaint the party with the substance of their
warrants ; and all private persons to whom such warrants
shall be directed, and even officers if they be not sworn and
commonly known, and even these if they act out of their
precinct, must show their warrants, if demanded.” +

.§ 648. The doctrine thus stated by Hawkins continues to
be the law to the present day, and in the United States, with
perhaps the exception of a point now to be mentioned. Ina
case which came before the Court of King’s Bench in 1799,
Lord Kenyon, C. J. said by way of dictum: “If it be estab-
lished as law by the cases cited, that it is not necessary to
show the warrant to the party arrested who demands to see it,
I will not shake those authorities: but I cannot forbear observ-
ing, that, if it be so established, it is a most dangerous doc-
trine ; because it may affect the party criminally in case of
any resistance ; and, if homicide ensue, the legality of the
warrant enters materially into the merits of the question. I
do not think that a person is to take it for granted that an-
other, who says he has a warrant against him, without pro-
ducing it, speaks truth. It is very important, that, in all
cases where an arrest is made by virtue of a warrant, the
warrant, if demanded at least, should be produced.”? It has
on the other hand been considered, that the arrest, the ex-
planation, and the reading of the warrant when demanded,
“are obviously successive steps. They cannot all occur at the
same instant of time.’ And, in the case of a known officer,
“the explanation must follow the arrest ; and the exhibition
and perusal of the warrant must come after the authority of the
officer has been acknowledged, and his power over his prisoner
acquiesced in.” ? Where the officer is not known to be such,

1 2 Hawk. P. C. c. 18, § 28. 350, 356, 357, opinion by Merrick, J.
2 Hall v. Roche, 8 T. R. 187. And In a Delaware case, “the court said,
see 1 Chit. Crim. Law, 41; 1 Hayes that, with regard to a known public offi-
Dig. Crim. Stat. Law, 2d ed. 69. cer of the county, it was not necessary
8 Commonwealth v. Cooley, 6 Gray, for him either to produce his warrant or

[459]
§ 649 PRACTICE. [BOOK VI.

the doctrine seems everywhere to be, that he must show his
authority or his warrant before making the arrest.1. Undoubt-
edly, wearing the accustomed badge of office would be suffi-
cient in the case of a fresh incumbent ; and, if he were elected
by the people, that ought to be deemed a sufficient notice.
But the question of what notice is adequate is not clear in
the authorities.

§ 649. The principle underlying the various distinctions
upon this subject would seem to be the following. If a man
who is known to be an officer attempts to arrest another, the
latter is sure, at the outset, that, should he submit to the
arrest, he will not suffer wrong. The officer is not only a
responsible and known person, he is moreover under legal
liabilities by reason of his office, and is immediately control-
lable by the courts of justice. On the other hand, if one not
known to be an officer attempts to arrest a person, the latter
is put at once upon his apprehensions, and is instinctively
and most properly impelled to resist the indignity. We may
therefore concur in opinion with the majority of the English
judges who held, that, where a watchman, a person of known
official character, —“ dressed in a watchman’s coat, and had
his lantern,” — is proceeding without a warrant, he may ar-
rest a person really on a charge of robbery, without disclos-
ing to him the charge, though in fact the prisoner has done

nothing actually justifying the

state his character and authority before
making the arrest. The arrest itself is
laying hands on the defendant; and it
might be defeated by the ceremony of
producing and explaining a paper before
the arrest is made. It is quite time to
produce the authority on the demand of
the party arrested, and after the arrest.
Every one is bound to know the charac-
ter of an officer who is acting within his
proper jurisdiction, and every citizen
is bound to submit peaceably to such
officer, until he can demand and inves-
tigate the cause of his arrest. If the
officer have no proper warrant for the
arrest, he is liable to the defendant, who
can suffer no wrong from submitting to

[460]

arrest.” 2

the law ; but, if he resist before such
investigation, and the officer have au-
thority, he is indictable for obstructing
such officer in the discharge of his duty.”
The State v. Townsend, 5 Harring. Del.
487,488, This seems also to be the doc-
trine of other cases, and it may doubtless
be deemed the present American law.
Arnold v. Steeves, 10 Wend.514. And
see Kernan v. The State, 11 Ind. 471.

1 The State v. Curtis, 1 Hayw. 471;
Commonwealth v. Field, 13 Mass. 321 ;
Arnold v. Steeves, supra.

2 Rex v. Woolmer, 1 Moody, 334.
See also, Rex v. Gordon, 1 East P. C.
315, 352.
CHAP. XXXIX. ] THE ARREST, ETC. § 652

§ 650. If the officer does so incautious a thing as to per-
mit the prisoner to take the warrant into his hands to peruse,
then the latter refuses to return it, he may use “just so much
violence as is necessary to retake it, and no more.” !

V. The Breaking of Doors, and the like, to make an
Arrest.

§ 651. In the work on the Criminal Law, there are some
allusions made to the subject of this sub-title,as respects the
breaking of doors.2 Chitty has treated of it with much more
than his accustomed fulness and accuracy ; and we cannot
do better than to examine it in his own words, appending such
few references to subsequent and American authority as may
seem desirable.? “ We are now to inquire in what cases doors
may be broken, in furtherance of the purposes of justice, —a
subject of equal delicacy and importance, as it often becomes
material in cases of homicide; and as it affects the security
and peace of domestic habitations. As there is a consider-
able degree of intricacy and confusion in the authorities
which relate to this subject, we will investigate the law in the
following order: 1st. In what cases the house of the sus-
pected party may be broken open ; and, 2dly. When that of
a third person may be forced in order to advance the execu-
tion of justice. And in pursuing the first of these inquiries,
we will consider when the house of the party suspected may
be thus entered, — 1st, without warrant; 2dly, under a war-
rant to apprehend ; and, 3dly, under a warrant to search for
goods suspected to have been stolen.

§ 652. “ But first it may be proper to observe, that, in gen-
eral, a man’s own house is regarded as his castle, which is
only to be violated when absolute necessity compels the disre-
gard of smaller rights, in order to secure public benefit ; and,
therefore, in all cases where the law is silent, and express
principles do not apply, this extreme violence is illegal.*

1 Rex v. Milton, Moody & M. 107, 8 1 Chit. Crim. Law, 51— 59.
s.c. nom. Rex v. Mitton, 3 Car.& P. 31. * 3 Bl. Com. 288; 14 Hast, 79, 116-
2 Crim. Law, I.§ 307; II. § 653,654, 118, 154, 155; 5 Co. 91; Cowp. 1.
665, 727, 1228,
39 * [461]
§ 653 PRACTICE, [BOOK VI.

There seems some doubt as to the distinction which may exist
between the power of constables and private individuals in
this respect ; for it is said that the former, being enjoined by
law on a reasonable charge to apprehend the party suspected,
may be justified in breaking open doors to apprehend him on
mere suspicion of felony, and will be excused though it ap-
pear that the suspicion was groundless; but a private indi-
vidual acts at his own peril, and would, if the party were in-
nocent, be liable to an action of trespass for breaking open
doors without a warrant.1 But when it is certain that a trea-
son or felony has been committed, or a dangerous wound giv-
en, and the offender being pursued takes refuge in his own
house, either a constable or private individual, without dis-
tinction, may without any warrant break open his doors, after
proper demand of admittance.? And when an affray is made
in a house, in the view or hearing of a constable, he may
break open the outer door in order to suppress it.? So, in
some extreme cases, it has been holden lawful even for a pri-
vate individual to break and enter the house of another in
order to prevent him from murdering another who cries out
for assistance.*

§ 653. “ Authors, however, differ on the point whether the
same power be invested in the officer or private person when
felony is only suspected, and has not been committed within
the view of the party arresting. It is, indeed, certain that
a constable may break open doors, upon the positive informa-
tion of another who was actually a witness to the felony ;°
and one material distinction between the power of officers
and private individuals is, that the latter can act only on their
own knowledge, while the former may proceed on the infor-
mation of others.® [This distinction is frequently hinted at,
in more or less direct terms, in the older books ;7 but, to the

j} 2 Hale P. C. 82, 92; 2B. & P. 63; 2 Ib. e. 14; Dick. Just. Arrest,
260 ; Dick. Just. Arrest, IIT. III.

21 Hale P. C. 588, 589; 2 Hawk. P. *2B.&P. 260.
C. c. 14,§ 7; 4 BL Com. 292 ; 2 Hale 5 1 Hale P. C.589; 2 Ib. 92; Dick.
P. C. 82, 83, 88, 96; 14 East, 157, Just. Arrest, III.
158. 8 Cald. 291; Doug. 359.

3 9 Hale P.C. 95; 1 Hawk. P.C.c. 7 And see post, § 655.

[462]
CHAP. XXXIX. | THE ARREST, ETC. § 655

author of these volumes, it seems neither sound in itself, nor
harmonious with the current of modern adjudication. Un-
doubtedly, as some of the old books say, the private individu-
al who, on suspicion, makes an arrest of the suspected felon,
after a felony has been committed, must himself suspect the
person arrested to be the guilty one, in order to be justified
should the suspicion prove to have fallen on the wrong per-
son ; yet plainly it cannot be necessary, on any just principle,
that the eyes alone should be the channel through which the
suspicion flowed, and that nothing could be attended to, which
came through the ears.] We may, therefore, take it as set-
tled, that a private person may break doors, after a proper
demand and notice, where he is certain a felony has been com-
mitted ; and that a constable may do the same upon the in-
formation of the party in whom the knowledge or reasonable
suspicion exists.

§ 654. “ But it is clear, that, in the case of criminal pro-
cess for a misdemeanor, it is necessary to demand admittance
before the breaking open an outer door, even if it be not ne-
nessary in case of felony.}

§ 655. “ As to how far doors may be broken open, upon
suspicion of felony, Lord Coke? seems to imply that this may
be done by the party originally suspecting, but by no other
unless by the constable in his presence. And therefore he
contends that no justice can issue’a warrant before indict-
ment, unless the suspicion arise from himself, an idea which
constant usage has refuted. And Lord Hale positively lays
it down, that doors may be broken open, without warrant, on
suspicion of the felony.? This doctrine is as positively denied
by Foster, though his general leaning is against the protec-
tion of offenders by the sanctity of private dwellings. Ac-
cording to him, a bare suspicion will never authorize an ar-
rest, even though a felony has actually been committed.*
And this opinion is the stronger as it proceeds from one who
just before had declared, that ‘no regard ought to be paid to
the houses of malefactors, which were the dens of thieves and

12B.& Ald. 592 ; 14 East, 163. 8 1 Hale P. C. 583,

~ 24 Tnust. 117; 14 Hast, 155. * Foster, 321. [468]
§ 658 PRACTICE, [BOOK v1.

murderers.’ This opinion is followed by Hawkins, and adopt-
ed by Mr. Hast: the latter author, however, qualifies it by
observing, that at least the party arresting must prove, not
only that his suspicion was reasonable, but that the person
arrested was actually guilty.

§ 656. “Upon the whole, therefore, it seems to be the
better opinion that a private individual, in order to justify
breaking open doors without warrant, must in general prove
the actual guilt of the party arrested ; and that it will not
suffice to show that a felony has actually been committed by
another person, or that reasonable ground of suspicion exist-
ed; but that an officer, acting bona fide on the positive charge
of another, will be excused, and the party making the accu-
sation will alone be liable. But the breaking an outer door
is, in general, so violent, obnoxious, and dangerous a pro-
ceeding, that it should be adopted only in extreme cases,
where an immediate arrest is requisite.

§ 657. “ We have now to inquire in what cases doors may
be broken open, under the warrant of a justice of the peace.
Lord Coke seems to have thought, that no arrest could take
place under a warrant before indictment, by any other than
the accuser himself. But now it is clear, that, in all cases,
doors may be broken open, if the offender cannot otherwise
be taken, under warrant, for treason, felony, suspicion of fel-
ony, or actual breach of the peace, or to search for stolen
goods. In these cases, too, a warrant is a complete justifica-
tion to the person to whom it is directed, acting bona fide
under it, even though the party accused should prove his
innocence.5

§ 658. “ We have thus seen, that, on a warrant for trea-
son, felony, or breach of the peace, the doors of the party ac-
cused may be broken open, if admittance cannot otherwise be
obtained; but there seems no well-founded authority for

11 East P. C. 322; 2 Hawk. P,C. Hawk. P. C. c 14,§7;1 East P.C.

c. 14, § 7; Dalt. Just. c. 78. 822; 2 Hale P. C. 117; Dalt. Just.
2 Doug. 358; Dick. Just. Arrest, IIT. c¢. 151, 169 ; Dick. Just. Arrest, ITI.
8 4 Inst, 177. 5 24 Geo. 2, ¢. 44; 4 Bl. Com. 288;

4 Foster, 320; 1 HaloP. C. 588; 2 2 Hawk. P.C.c.18,§ 11; Cro. Eliz, 130"
[464]
CHAP. XXXIX.] THE ARREST, ETC. § 660

extending this right to misdemeanors unaccompanied by
violence.

§ 659. “ A contempt, however, of a court of justice, or of
either house of Parliament, will authorize this proceeding,
under a warrant from the speaker.! And it seems, that,
whenever the crime is of a public nature, this may be permit-
ted, though it is clearly unjustifiable upon mere civil pro-
cess. And if, in the attempt to execute civil process by such
forcible entry, the officer, being a known bailiff, be killed, it
will be manslaughter, and no more; manslaughter, because
he was known to be an officer, and no more, because his at-
tempt was illegal. And if he be no officer, or out of his
proper district, he may lawfully be killed to prevent his en-
try= It is, however, settled, that, in case of an actual affray
made in a house, within the view or hearing of a constable,
or where those who had made an affray in his presence fly to
a house and are pursued by him, he may break open the doors
to arrest the affrayers, or suppress the tumult.6 And it has
been decided, that, upon a violent cry of murder in a house,
any person may break open the door to prevent the commis-
sion of a felony, and may restrain the party threatening, till
he appear to have changed his purpose.’ And in all cases
whatever, at least of misdemeanors, it is absolutely neces-
sary that a demand of admittance should be made, and be
refused, before outer doors can be broken.®

§ 660. “Upon search warrants® regularly granted, and spe-
cifically directed, it seems to be settled, that, after the proper
precautions, the house to be searched may be broken open;
and, whether the property be found there or not, the officer
will be excused.!? A distinction seems to have been made,

1 14 East, 157,162; Burdett v. Ab- © 2 Hale P. C. 95; 2 Hawk P. C. cc.

bot, 5 Dow, 165, 4 Taunt. 401, 410. 14, § 8.
2 14 Kast, 116. 7 2B. & P, 260.
8 5 Co. 91; Foster, 319. 89 B.& Ald. 592; 14 East, 163;
#1 Hale P. C. 458; 1 East P.C. Foster, 329; 2 Hawk. P. C.c. 14,§1;
321. 3B. & P. 229; Barl. Just. Arrests ;

5 5 Co. 91 6. See, on this subject, Dick. Just. Arrest, III.
Crim. Law, II. § 653, 654, 665, 727, 9 See post, § 665.
1228, 10 2 Hale P. C. 151.

[465]
§ 661 PRACTICE. [BOOK VI.

though never distinctly recognized, as far as respects criminal
proceedings, that the officer would be justified, or not, accord-
ing to the event of his search. But as all persons who act
bona fide, under a warrant, are now protected from any lia-
bilities resulting from its having been improperly framed, this
idea could not now be supported! It appears, however, that
the party maliciously procuring a search warrant is answer-
able to the person aggrieved, in an action on the case.? As
warrants to search ‘all suspected places’ are illegal,? unless
when they are issued under the provision of particular stat-
utes, it seems that a constable, breaking open doors under
the color of their authority, cannot be justified.t The gen-
eral doctrine, therefore, to be adduced from all the books rel-
ative to search-warrants, is, that, if they are altogether illegal,
the officer cannot be justified ; but that, if they are legal in
form, though improperly granted, he may safely break open
the doors to execute them, whether his search succeed, or the
charge be malicious or mistaken.

§ 661. “The house of a third person, if the offender fly to
it for refuge, is not privileged, but may be broken open after
the usual demand ; for it may even be so upon civil process.
But then it is said, it is at the peril of the officer that the
party, against whom he has obtained the warrant, be found
there ; for otherwise he will be a trespasser.6 And this doc-
trine, as far as it respects civil process, has been recognized
in modern decisions.” It is necessary to observe, that all the
privileges attendant on private dwellings relate to arrests be-
fore indictment; and there is no question whatever, that, after
indictment found, a criminal of any degree may be arrested in

1 Quere, see 3 Esp. 185; 1 T. R. 8 2 Hale P. C. 117; 5 Co. 63 a;
532; 3B. & P. 223; 1 Marshall, 565. Johnson v. Leigh, 1 Marshall, 565, 6
29 Hale P.C. 151; 1 T. R. 535;3 Taunt. 246.
Esp. 185; 3 B. & P. 225; 1 Dowl. & 7 1 Marshall, 565; 3 B. & B. 223;

Ry. 97. Dick. Just. Arrest, III. See, as shed-
3 4 Bl. Com. 288; 10St. Tr. 426; 2 ding some light upon the American

Hawk. P. C. ¢. 135, § 10. ° law relating to these points, Oystead
* 2 Hawk. P. C. 18, § 10; 8 Bur. o, Shed, 13 Mass, 520; Allen v. Mar-

1767; Lofft, 18; 11 St. Tr. 312, tin, 10 Wend. 300; Hawkins ». Com-
55 Co. 91; 2 Hale P. C. 117. monwealth, 14 B. Monr. 395.

[466]
CHAP. XXXIX.] THE ARREST, ETC. § 663

any place, and no house is a sanctuary to him.1 So also upon
a capias from the King’s Bench or Chancery to compel a man
to find sureties for his good behavior, and even on a warrant
of a justice for that purpose, doors may be forced, if necessa-
ry.2. So also upon a capias utlagatum, or capias pro fine, in
any action whatever.2 So a constable or other officer, hav-
ing a warrant to levy the money adjudged by a justice to be
levied, by virtue of an act of parliament, which authorizes
him to convict in a penalty to a part of which the king is en-
titled, may break open doors in order to effect his purpose ;
though he is compelled first to show his warrant, if de-
manded.*

§ 662. “It is also to be observed, that, after a party has
been once actually arrested, and escaped from custody, any
door may be broken open to retake him, after proper demand
of admittance. And when the officer, after obtaining admit-
tance, is locked in, or otherwise prevented from retiring, he
may lawfully break out by any means in his power, whether
he be engaged in executing civil or criminal process; and
the sheriff may break open the door of a house to rescue his
bailiffs unlawfully detained within it.6 And when once the
officer has entered the house, either upon civil or criminal
process, he may, after ineffectually demanding entrance,
break open any inner door that obstructs his progress, though
the process be without ‘ non omitias’; and, if he be killed, it
will be murder.” 7

§ 663. Of the duty of an officer to whom a warrant of ar-
rest is given to be executed, Chitty, in another place,* says :
“ The officer should, as soon as he conveniently can, though
he may do so at any time afterwards until the object of the

1 12 Co. 131; 4 Inst. 131; 2 Hawk. 79; 1 Hale P. C. 459; 2 Hawk. P.C.
P. C. c. 14, § 3; Dick. Just. Arrest, III. ¢.14,§ 9; Dick. Just. Arrest, III.

2 9 Hawk. P. C. c. 14, § 33; Moore, 6 Cro. Jac. 555; Foster, 319; 6 Mod.
606, 668; Foster, 136 ; Dick. Just. Ar- 173; 2 Hawk. P.C.¢.14,§ 11; 1 Hale

rest, IIL P. C. 459; Dick. Just. Arrest, III.
8 9 Hawk. P. C. c. 14, § 4; Yelv. 71 Hale P. C. 459 ; Foster, 319; 3
28; Dick. Just, Arrest, III. i B. & P. 229. The foregoing is extract-
4 T. Jones, 233, 234; 2 Hawk. P.C. ed from 1 Chit. Crim. Law, 51-59.
ce. 14, § 5; Dick. Just. Arrest, III. 8 1 Chit. Crim. Law, 47, 48.

5 Foster, 320 ; 6 Mod. 178, 174 ; Salk.
[467]
§ 664 PRACTICE. [BOOK: VI.

warrant has been satisfied,! proceed with secrecy to find out
and actually arrest the party ;? not only in order to secure
him, but also to subject him and all other persons to the con-
sequences of escape or rescue. And if he refuse or neglect
to execute the warrant, he will be punishable for his disobe-
dience or neglect.2 But at some of the police offices, it is the
practice to deliver the warrants for common assaults to one
of the constables, who goes round to the parties accused, and
states the time when they must go before a magistrate, in or-
der that they may be provided with sureties.” Again:* “A
warrant directed to several, may be executed by one;° but it
is said, that, if it direct four, jointly and not severally, to ar-
rest, then they must all be present.” ©

§ 664. In England it was provided by Stat. 29 Car. 2, c.
7, for the observance of the Lord’s day, § 6, “ That no per-
son or persons upon the Lord’s day shall serve or execute,
or cause to be served or executed, any writ, process, warrant,
order, judgment, or decree (except in cases of treason, felo-
ny, or breach of the peace); but that the service of every
such writ, process, warrant, order, judgment, or decree shall
be void to all intents and purposes whatsoever. And the
person or persons so serving or executing the same, shall be
as liable to the suit of the party grieved, and to answer dam-
ages to him for doing thereof, as if he or they had done the
same without any writ, process, warrant, order, judgment, or
decree at all.”” The date of this statute is 1676. Kilty men-
tions this sixth and last section as “in force’? in Maryland.”
The Pennsylvania judges, on the other hand, omit it from the
list of statutes of force in the latter State. It would not be
safe to say anything very positive on this point with respect
to most of the other States. The point is of but little prac-
tical consequence ; because, in most or all of the States, there
are statutes in like terms with this one. And it has been

1 Peake, 234. 25; Palm. 52; Dalt. Just. c. 169 ; Dick.
2 Dalt. Just. 169; Dick. Just. Ar- Just. Arrest, II.
rest, III. 6 2 Taunt. 161.
8 Cro. Eliz. 664; 1 Hale P.C. 581. 7 Kilty Rep. Stats. 242.
4 1 Chit. Crim. Law, 49. 8 Report of Judges, 3 Binn. 395.

5 1 Kast P. C. 320; Hut. 127 ; Yelv. ® See Crim. Law, I. § 946.
[468]
CHAP. XXxIx.] THE ARREST, ETC. § 665
held in England, that, under the exception of ‘“ treason, felo-
ny, or breach of the peace,” all indictable offences are com-
prehended. Thus.a person was on the Lord’s day arrested
for a criminal conspiracy ; and he contended, that, as this
offence was not treason or felony, so neither was it a “breach
of the peace,” but the court overruled the objection... And
such, it is presumed, is the American doctrine.2 Likewise

arrests may be made as well in the night as in the day.®

VI. The Arrest of Persons and Goods under Search-
Warrants.

§ 665. The form of the search-warrant is not to be consid-
ered in this place. As to the mode of executing it, Chitty
says:* “If the door be shut, and, upon demand, not opened,
it may be broken open ;° and so may boxes, after the keys
have been demanded ; and, though the goods be not found,
the officer will be excused. .... But the officer must strict-
ly observe the directions of the warrant ; and, if he be direct-
ed to seize only stolen sugar, and seize tea, he will be a tres-
passer.” 7? Thus, where a constable, having a warrant to
search for some specified goods alleged to be stolen, took away
not only these goods, which were mentioned in the warrant,
but also some other goods supposed to be stolen, yet not men-
tioned, he was held to be liable to respond in damages in an
action of trespass. It was, however, observed, by Abbott, C.
J.: “If those articles had, from their nature, been likely to
furnish evidence of the identity of the articles stolen and men-
tioned in the warrant, I should have been inclined to assent
to Mr. Reader’s argument, and to think that there might

1 Rawlins v. Ellis, 16 M. & W. 172.

-2 An arrest may be made for keeping
open a tippling house on the Lord’s
day, in violation of the ordinance of
the city of Chicago. Main v. McCar-
ty, 15 Tl, 441.

8 1 Chit. Crim. Law, 16; The State v.
Smith, 1 N. H. 346; Bell v. Clapp, 10
Johns. 263 ; The State v. Shaw, 1 Root,
184; Kelsy v. Wright, 1 Root, 83 ; The
State v. Brennan’s Liquors,25 Conn. 278.

VOL. I. 40

* 1 Chit. Crim. Law, 66.

5 See ante, § 660.

6 2 Hale P. C. 157; Doug. 359; 2
Wils. 284; 3 B.& P. 228. The de-
mand is necessary only when there is
some person present, of whom it can
be made. Androscoggin Railroad 2.
Richards, 41 Maine, 233.

72B.& P.158; 2M.&S5. 261; 2
Wils. 291, 292.

[469]
66 7 PRACTICE. [BOOK ‘VI.

have been reasonable ground for seizing them, though not
mentioned in the warrant.” But this qualification of the
doctrine comes from a special principle to be considered
under our next sub-title.

§ 666. A warrant, directing the search of the dwelling-
house of a person, authorizes the officer to search only the
house which he occupies; and, under it, a house owned by
him, but occupied by another person, cannot be lawfully
searched.?, Where the warrant required the officer to search
for some specified liquors “in a certain dwelling-house in said
city of Augusta, situate on Winter Street, so called, and being
the same premises occupied by said Jones” ; the court held,
that it did not justify the officer in making a forcible entry
into the barn of Jones, adjoining the dwelling-house. And
May, J. said: “The barn does not come within the terms
used as descriptive of the place to be searched. If the words
used in the warrant had been used in a deed of conveyance,
there is no evidence in the case tending to show that the barn
which was broken into was so connected with the dwelling-
house then occupied by the plaintiff, that it could with legal
propriety be regarded as passing to the grantee under such
description. The description of the place to be searched
should be as certain in a warrant as would be necessary in a
deed to convey such place.” 3

VII. The Seizing of Goods in other Cases of the Arrest of
the Person.

§ 667. There is but little to be found in the books, relating
to the matter of our present sub-title ; therefore there is the
greater need that the author should give it such illumination
as he may be able. In Hayes’s Digest of the Criminal Stat-
ute Law of Ireland, we have the following: “It is a very
common practice with police constables, upon an arrest, to
search the prisoner, and to take from him everything found
on his person. But it is very improper-to deprive the pris-

1 Crozier v. Cundy, 9D. & R. 224, 2 McGhinchy v. Barrows, 41 Maine, 74.
226. And see The State v. Brennan’s ° Jones v. Fletcher, 41 Maine, 254,
Liquors, 25 Conn. 278. 256.

[470]
CHAP. XXXIX.] THE ARREST, ETC. § 669

oner of his money, unless it be in some way connected with
the charge or proof against him, as he is thereby deprived of
the means of making his defence.” ! Thus, a police officer
who apprehended a person on a charge of rape, took from him
a watch and other articles ; but the court, on application, or-
dered this property to be restored to him, saying it should not
have been taken.?

§ 668. Though it is not easy to lay down a general doc-
trine on this subject, with any great assurance of its being
everywhere accepted as sound, an attempt will nevertheless
be made. The officer who arrests a man on a criminal charge
should consider the nature of the charge ; and, if he finds
about the prisoner’s person, or otherwise in his possession,
either goods or moneys which there is reason to believe are’
connected with the supposed crime as its fruits, or as the in-
struments with which it was committed, or as directly furnish-
ing evidence relating to the transaction, he may take the
same, and hold them to be disposed of as the court may direct.
Let the reader understand, that the author has before him no
case in which this exact proposition is stated; but it seems
rather to flow from the reason of the thing, from the general
principles of the criminal law relating to such subjects, and
from the few enunciations which we have in the books, than
from what has been before laid down in exact words.

§ 669. Said a learned Irish judge: “I wish it to be under-
stood, that, unless the party apprehended be charged with the
taking of money, or, at least, money’s worth, the police have
no right to take from him the money which he has on his per-
son. To take away the party’s money in such cases is to de-
prive him of the lawful means of defence.” ? And in Eng-
land, Patteson, J. observed: “ Generally speaking, it is not
right that a man’s money should be taken away from him,
unless it is connected in some way with the property stolen.
If it is connected with the robbery, it is quite proper that it

11 Hayes Dig. 70, referring to Rex v. 2 Rex v. Kinsey, supra.
Jones, 6 Car. & P. 343; Rex v. O’Don- 8 Perrin, J. in Reg. v. McKay, 3
nell, 7 Car. & P. 138; Rex v. Kinsey, Crawf. & Dix C. C. 205.
7 Car. & P. 447; Reg. v. Frost, 9 Car.
&P.129%

[471]
§ 670 PRACTICE. [BOOK VI.

should be taken. But unless it is, it is not a fair thing to
take away his money, which he might use for his defence. I
believe constables are too much in the habit of taking away
everything they find upon a prisoner, which is certainly not
right. And this is a rule which ought to be observed by all
policemen and other peace officers.” Yet in the case in
which these observations were made, being addressed to the
jury, the prisoner was indicted for stealing silver spoons and
other like articles, not for the stealing of money, and the of-
ficer arresting him took his money away; yet he seems to
have been indicted, tried, and convicted, without any resto-
ration being first made.! Still, if it appear on affidavits, that
the money which the officer has taken is not connected with
the offence, and is not material as evidence against the pris-
oner, the court, on his application, will order the officer to re-
store it to him. And if, for example, the charge on which
the officer arrests the prisoner is the stealing of a horse, and
the prisoner has the horse with him, the officer ought not to
take away any money which may be found about his person.’
But we may presume, that, if the horse is not found in the
prisoner’s possession, the officer may take his money; be-
cause, on the conviction of the prisoner, if this money should
appear to have been received by him on a sale of the horse,
the court would order it to be restored, not to the prisoner,
but to the owner of the horse.+

VIII. The Disposal of the Arrested Person.

§ 670. When a private person arrests a man without a
warrant, for treason or felony, he “ may,” says Chitty,® “ de-
liver the prisoner into the hands of a constable, or he may
carry him to any jail in the county. But the safer course
seems to be, to cause him, as soon as convenience will permit,
to be brought before some justice of the peace, by whom the
prisoner may be examined and bailed, or committed to prison.®

1 Rex v. O’Donnell, 7 Car. & P,138. Spalding v. Preston, 21 Vt. 9; ante,
° Rex v. Barnett, 3 Car. & P. 600. § 665.
3 Rex v. Jones, 6 Car. & P. 343. 5 1 Chit. Crim. Law, 20.

* 1 Chit. Crim, Law, 819. See also, 6 1 Hale P. C. 589 ; 21d. 77, 81; 2
on the subject of the foregoing sections, Hawk. P. C. c. 18, § 7, and c. 16, § 3.

[472]
CHAP. XXXIX.] THE ARREST, ETC. § 671

Where a private person has apprehended another assisting in
an affray, he may lawfully detain him till the heat is over,
and then deliver him to the constable.”! Probably, however,
the private person has the same authority, if he chooses to
exercise it, to deliver the arrested person to the keeping of
the jailer, or to take him before a magistrate, when the ar-
rest is for a breach of the peace committed in his presence,
as when it is for treason or felony.2- On the other hand, con-
sidering that with us all official business is intrusted as far
as possible to the officers of the law, we may doubt whether it
would not be practically the better way, in almost every case,
for the private person who has made an arrest, to deliver the
arrested person immediately to the proper peace officer ;
though the strict law is undoubtedly as already stated in this
section.

§ 671. “A constable, having arrested the offender,” says
Chitty,? “ may, in case of an affray, put him in the stocks, or
otherwise confine him, till the heat of his passion or intem-
perance is over, or till he can bring him before a justice of
the peace; and, in case of any offence for which the party
suspected may be apprehended, a constable may convey him
to the sheriff or jailer of the county or franchise ; but the
safest and best course is said to be, in all cases, to carry the:
offender before a justice of the peace, as soon as circumstan-
ces will permit.t But where the parish clerk refused to read
in church a notice presented him for that purpose, and the
person presenting it read it himself at a time when no part of
the church service was going on; it was held, that, though a
constable might be justified in removing him from the church,
and detaining him until the service was over, yet he could
not legally detain him afterwards to take him before a magis-
trate.6 Anda constable arresting a man on suspicion of fel-
ony, must take him before a justice to be examined, as soon
as he reasonably can ; and, it seems, a constable cannot jus-

1 2 Hawk. P. C. ¢. 18, § 8. 8 1 Chit. Crim. Law, 23, 24.

2 See the observations of Gibson, J. 4 2 Hale P.C. 951, &c. See Arnold
in Commonwealth v. Deacon, 8S. &R. v. Steeves, 10 Wend. 514.
47. 7 5 2B.& C. 699.

40 * [473]
§ 678 PRACTICE. [BOOK VI.

tify handcuffing a prisoner, unless it be necessary to prevent
his escape.” ! But the time during which the prisoner may
be detained is regulated by statute in some of our States.

§ 672. “ A watchman,” says Chitty,? ‘“ having apprehend-
ed a party, may discharge himself from liability for an escape,
by delivering him to a constable, or he may himself take him
before a magistrate.’® But the reader will find the duties
of watchman defined in the statutes of his own State.

§ 673. The foregoing sections refer to arrests made with-
out a warrant. Of arrests under warrant, Chitty says :4
“« When the officer has made his arrest, he is, as soon as pos-
sible, to bring the party to the jail or to’the justice, according
to the import of the warrant.” In some localities or circum-
stances, the party arrested must be taken before the justice
who issued the warrant.® The officer must follow the law on
this subject ;® or, the law permitting, he may, and indeed
must, follow the terms of the warrant. But, the law giving
the jurisdiction, if the warrant directs the officer to bring the
prisoner before the magistrate issuing it or any other justice
of the peace, the right to elect is in the officer.’ “If he be
guilty of unnecessary delay,” continues Chitty, “it is a breach

of duty.®

14B. &C. 596. In the case here
referred to by Chitty, Wright ». Court,
6D. & R. 693, 4B. & C. 596, it was
held, that the constable is not justified
in delaying for three days to take the
prisoner before a magistrate. ‘“ And,”
it was added, “even a magistrate is not
authorized by law, and much less is a
constable therefore, to detain a person
so arrested, except for a reasonable time,
and except for the purpose of his being
examined. The magistrate might have
been justified in ordering the plaintiff
to be detained until Clarke could bring
forward his evidence; but, without his
order, the defendants could not possibly
be justified in detaining him for any
such purpose.” See also Wheeler 2.
Nesbitt, 24 How. U. 8S. 544. See, as
to handcuffing, ante, § 620. “And see
Ex parte Taws, 2 Wash. C. C. 353.

[474]

But if the time be unseasonable, as in or near the

21 Chit. Crim. Law, 24.

5 Dalt. Just. c. 104.

41 Chit. Crim. Law, 59.

5 People v. Fuller, 17 Wend. 211.

® Stetson v. Packer, 7 Cush. 562.

7 Foster’s case, 5 Co. 59.

8 Fortes. 143; 2 Hale P.C.119. Ac-
cording to a New Hampshire case, an
officer who has arrested a prisoner at a
distance from the jail, it being his duty
to commit him, must be the judge of
the time when he will start for the jail,
and the state of the weather in which
he will go. He has a right to start at
any hour he may choose, or his business
requires, and in such weather as he may
find at the time, provided he does not
needlessly expose the prisoner’s health,
or do him a personal injury. Butler v.
Washburn, 5 Fost. N. H. 251.
CHAP. XXXIX.] .THE ARREST, ETC. § 675

night, whereby he cannot attend the justice ; or, if there be
danger of a rescue ; or the party be ill, and unable at present,
to be brought ; he may, as the case shall require, secure him
in the stocks ; or, in case the quality of the prisoner or his
indisposition so require, detain him in a house till the next
day, or until it may be reasonable to bring him.”’! In this
country there are generally provided places of temporary
security in which, in some of the circumstances thus men-
tioned by Chitty, the prisoner can be put if necessary.

§ 674. “ When the prisoner,” says Chitty, “is brought
before the justice, he is still considered to be in the custody
of the officer, until he has been either discharged, bailed, or
committed to prison. The officer may keep his warrant for
his own justification, and need only return to the justice what
he has done in pursuance of his commands.” #

§ 675. Speaking of the search-warrant, Chitty says: 5 ‘Tf,
on the return of the warrant before the justice, it appear thas
the goods were not stolen, they are to be restored to the pos-
sessor. Ifit appear they were stolen, they are not to be de-
livered to the proprietor, but deposited in the hand of the
sheriff or constable, in order that the party robbed may pro-
ceed, by indicting and convicting the offender, to have resti-
tution. The party who had the custody of the goods is to be
discharged if they were not stolen ; and, if they were, not by
him, but by another person, who sold or delivered them to
him, and it appear that he was ignorant of the mode in which
they were-procured, he may be discharged, but bound over to
give evidence as a witness against him that sold them. If it
appear that he knew them to be stolen, then he should be
bound to answer the felony ; for there is a probable cause of
suspicion, at least, that he was accessory after the fact.”
There is not much light to be found in the books, concerning
the custody of things which are taken from the prisoner on
his being arrested, as mentioned under our last sub-title ; but

1 2 Hale P. C. 95, 96, 119, 120. 4 9 Td, Raym. 1196 ; Dick. Just. Ar-
21 Chit. Crim. Law, 60. rest, IV.
3 2 Hale P. C. 120. 5 1 Chit. Crim. Law, 67.

6 2 Hale P. C. 151, 152.
[475]
§ 678 PRACTICE. [BOOK VI.

they appear to be left in the hands of the officers, who are
under the control of the courts, and are compellable to obey
any order made concerning their disposition.

IX. Fugitives from Justice.

§ 676. The general doctrine respecting the surrender of
fugitives from justice was stated in the work on the Criminal
Law.! The doctrine has two branches, namely, that of the
surrender as between our country and foreign countries ; and
that of the surrender as between the several States of our
Union, pursuant to a provision in the Constitution of the
United States. The one branch takes us into the field of the
law of nations; the other, into the equally complicated maze
of the powers of the several States and of the United States
under the United States Constitution. It would not comport
with the general character and purpose of this work to enter
upon the discussion of either branch of this subject, in any
full way. The latter branch comes within the scope of a
volume on the Conflict of Jurisdiction, already announced as
having been in substance made ready for the press by the au-
thor. <A few points will here be stated.

§ 677. The constitutional provision, by force of which fu-
gitives from justice are returned as between our several States,
is the following: “ A person charged in any State with trea-
son, felony, or other crime, who shall flee from justice, and
be found in another State, shall, on demand of the executive
authority of the State from which he fled, be» delivered
up, and be removed to the State having jurisdiction of the
crime.”2 In pursuance of this provision, Congress, on the
12th of February, 1793, passed an act which, so far as national
legislation is concerned, has governed the matter ever since.
It is as follows:

§ 678. “ Sec. 1. Whenever the executive authority of any
State in the Union, or of either of the territories northwest
or south of the river Ohio, shall demand any person as a fu-
gitive from justice, of the executive authority of any such
State or territory to which such person shall have fled, and

1 Crim. Law, I. § 103. 2 Const. U. S. art. 4, § 2.
[476]
CHAP. XXXIX.] THE ARREST, ETC. § 680

shall moreover produce the copy of an indictment found, or
an affidavit made before a magistrate of any State or territo-
ry as aforesaid, charging the person so demanded, with having
committed treason, felony, or other crime, certified as authen-
tic by the governor or chief magistrate of the State or terri-
tory from whence the person so charged fled, it shall be the
duty of the executive authority of the State or territory to
which such person shall have fled, to cause him or her to be
arrested and secured, and notice of the arrest to be given to
the executive authority making such demand, or to the agent
of such authority appointed to receive the fugitive, and to
cause the fugitive to be delivered to such agent when he shall
appear. But if no such agent shall appear withia six months
from the time of the arrest, the prisoner may be discharged.
And all costs or expenses incurred in the apprehending, se-
curing, and transmitting such fugitive to the State or territo-
ry making such demand, shall be paid by such State or terri-
tory.

§ 679. “Sec. 2. Any agent, appointed as aforesaid, who shall
receive the fugitive into his custody, shall be empowered to
transport him or her to the State or territory from which he
or she shall have fled. And if any person or persons shall
by force set at liberty, or rescue the fugitive from such agent,
while transporting as aforesaid, the person or persons so of-
fending shall, on conviction, be fined not exceeding five hun-
dred dollars, and be imprisoned not exceeding one year.” }

§ 680. In aid of this legislation of Congress, and for pur-
poses of domestic police, statutes have been enacted, in most
or all of the States, authorizing the arrest of persons on the
charge of being fugitives from the justice of other States, on
warrant issued by a magistrate, in advance of the executive de-
mand. The principle on which such statutes rest, was stated
by Shaw, C. J. to be the following: “A government is not
bound to wait till its own laws are violated. Reasonable ap-
prehension of danger is sufficient to justify a preliminary in-
terposition to prevent it. It is analogous to the case of per-

1 1 Stats. at Large, 302. Forthe prac- Brightly’s Digest, tit. Fugitives from
tice under this act, see the notes in Justice.

[477]
§ 681 PRACTICE. [BOOK VI.

sons, who, by their language or conduct, have shown them-
selves dangerous: they may be secured by bail, or by actual
imprisonment, to prevent mischief.’ ! How just this princi-
ple is, and whether this is the true one, the present pages are
not the place to consider.

§ 681. Under treaties with other nations for the mutual
surrender of fugitives from justice, Congress has provided
the necessary legislation, pursuant to which there may be
compliance with the treaties on our part.?- And in England
and other countries there is corresponding legislation. But
it is not in place to pursue either branch of this subject fur-
ther here.

1 Commonwealth v. Tracy, 5 Met. the practice under them, Brightly’s
536, 550. Digest, tit, Extradition, and notes,
2 See, for these treaties, statutes, and

[478]
CHAP. XL.] PRESENCE OF PRISONER IN COURT. § 684

CHAPTER XL.
THE PRESENCE OF THE PRISONER IN COURT.

§ 682. Iv is a principle pervading the entire law of proced-
ure in criminal causes, that, after indictment found, nothing
shall be done in the cause in the absence of the prisoner.
Yet the doctrine of waiver of rights, discussed in a previous
chapter,? may to some extent modify this principle so as to
allow of proceedings in the absence of the defendant, when he
does not choose to be present, and especially when his con-
venience is consulted by having the steps taken while he is
absent. Yet the right of waiver seems not to be carried very
far here. Let us look at some points which have been holden
upon the general subject of this chapter.

§ 683. The law of criminal procedure does not permit
the courts to summon in defendants, and then, if they do not
appear, to pronounce judgment on their default. “ In infor-
mations and indictments,” said Eyre, J., “no judgment can
be given unless the defendant appears. The defendant may,
indeed, have judgment of outlawry passed against him ; but
that is for his contempt in not appearing. And if the judges
of superior courts cannot proceed to judgment unless the de-
fendant appears, a fortiori justices of peace cannot. Some
acts of parliament indeed give justices of peace a power of
proceeding upon default; but exceptio probat regulam in re-
bus non exceptis.’’ 3

§ 684. And, as a general prepesition, the defendant must
present himself at the arraignments and plead personally to
the indictment; he cannot do it by attorney. The exception

1 Hooker v. Commonwealth, 13 Grat. 2 Ante, § 422 et seq.
763 ; Fight v, The State,7 Ohio, pt. 1,  * Reg. v. Simpson, 10 Mod. 248, 250.
180; Dunn v. Commonwealth, 6 Barr, And see Bigelow v. Stearns, 19 Johns.
384; The State v. Craton, 6 Ire. 164; 39.
Sneed v. The State, 5 Pike, 431.
[479]
§ 685 PRACTICE. [BOOK VI

is, that, for special cause shown, and as a favor to the defend-
ant, he will be permitted to plead by attorney in the case of
a misdemeanor punishable only by a fine, and not by impris-
onment; and, in such a case, the court may permit the trial
to go on in his absence.? :

§ 685. There are sometimes motions to be made to the
court, for orders in matters within the discretion of the pre-
siding judge; such, for example, as the continuance of the
cause after it has been set down for trial. If the prisoner is
defended by counsel who is present on such an occasion, must
he be personally present also, in order to justify the court in
hearing the motion? A motion for continuance, for exam-
ple, suppose it is made by the prosecuting attorney, will not
be heard, except on notice given the prisoner ? either directly
or to his counsel ; but that is another matter. On the ques-
tion whether a motion of this class can be proceeded in with-
out the prisoner’s personal presence, the books appear to be
nearly or quite silent; but, since the granting or refusing of
the motion itself is matter within the discretion of the presid-

1 Ex parte Tracy, 25 Vt. 98 ; War-
ren v. The State, 19 Ark. 214; United
States v. Leckie, Sprague, 227. In
California, there is a statute giving force
to this doctrine, and perhaps extending
it. People v. Thompson, 4 Cal. 238.
In a case before one of the circuit
courts of the United States, Curtis, J.
after conferring with the District Judge,
Sprague, stated the following as the
conclusion to which the two judges had
arrived on the subject of pleading, in
misdemeanors, by attorney :

“1. To save his recognizance, even
in case of a misdemeanor, the defendant
must appear personally.

“9. He is liable to be called on his
recognizance at any time, either on the
motion of the District Attorney, or by
the order of the court, on its own mo-
tion, if it sees cause to direct it.

“3. It is in the discretion of the
court to allow one indicted for a misde-
meanor to plead and defend in his ab-

[480]

sence, by attorney. This discretion will
be regulated by the following circum-
stances : ,

“1. That it is not an offence for
which imprisonment must be inflicted.

“2, The court must be satisfied, that
the nature of the case, and its cireum-
stances, are such that imprisonment
will not be inflicted.

‘3, The District Attorney must con-
sent, or it must appear to the court
that he unreasonably and improperly ~
witholds his consent.

“4, Sufficient cause must be shown,
on affidavit, to account for the absence
of the defendant.

“5. A special power of attorney, to
appear and plead and defend in his ab-
sence, must be executed by the defend-
ant, and filed in court by the attorney.”
United States v. Mayo, 1 Curt. C. C.
433, 434.

2 Wheeler v. The State, 14 Ind. 573 ;
1 Chit. Crim. Law, 492.
CHAP. XL.] | PRESENCE OF PRISONER IN COURT. § 686

ing judge, it seems to follow that the question of the personal
presence of the prisoner is so also. Probably, in cases of the
lower misdemeanors, where the defendants are out on bail, it
is the general practice of the courts not to require their pres-
ence while proceedings are going on, in which their counsel
participate, connected with motions of this sort. But it is
believed, that, when we ascend among the higher crimes, we
shall find the practice of the courts, in the different States,
to differ upon this question. The discussions in subsequent
sections of this chapter will shed upon it some further light.

§ 686. We have already seen, that, under some circum-
stances, the court will permit a defendant to be tried for one
of the lower misdemeanors, punishable only by a fine, when
he is personally absent.2- And in New York it has been laid
down, that no one can be tried for an offence, unless he is
either personally present in court, or present by attorney.
But the general authority of an attorney does not extend to
this ; there must be given him, before trial, a special authori-
ty and waiver.’ In felonies, it is not in the power of the pris-
oner, either by himself or by his counsel, to waive the right
to be personally present during the trial. Such was the doc-
trine laid down by the Pennsylvania court ; and, where a pris-
oner, indicted for burglary and larceny, waived, by his coun-
sel, the right to be present at the rendition of the verdict, and
a verdict was given against him in his absence, the judgment
thereon was reversed. “Jt would be contrary to the dictates
of humanity,” said Gibson, C. J., ‘to let him waive that ad-
vantage which a view of his sad plight might give him by in-
clining the hearts of the jurors to listen to his defence with
indulgence.” *

1 And see Kelly v. The State, 3 Sm.
& M. 518, 528; Jewell v. Common-
wealth, 10 Harris, Pa. 94, 101; People
v. Galvin, 9 Cal. 115.

2 Ante, § 684 and note.

8 People v. Petry, 2 Hilton, 523. In
Arkansas, it is provided by statute, that
“no indictment for felony shall be tried
unless the defendant be personally pres-
ent during the trial; nor shall any per-

VOL. I. 41

son, indicted for an offence less than fel-
ony, be tried unless he be present at the
trial, either personally or by his coun-
sel.” And it has been considered that
defendants may thus appear by counsel
in cases of slight misdemeanors, such,
for instance, as gaming. Sweeden ov.
The State, 19 Ark. 205.
4 Prine v, Commonwealth, 6 Harris,
Pa. 103, 104. See post, § 827.
[481]
§ 688 PRACTICE. [BOOK VI.

§ 687. In Ohio, where, during the progress of a trial for
counterfeiting, the prisoner, who was on bail, left the court
room ‘and went away, it was held that the cause might prop-
erly proceed to verdict. And Wood, J. observed: “If [the.
prisoner is] on bail, I apprehend neither the courts in Great
Britain nor the United States would proceed to impanel a
jury, in a trial for felony, unless the accused were present,
to look to his challenges. If the trial, however, is once com-
menced, and the prisoner, in his own wrong, leaves the court,
abandons his case to the management of counsel, and runs
away, I can find no adjudged case to sustain the position,
that, in England, the proceedings would be stayed. Sucha
case must form an exception to the general rule, and the ver-
dict may be legally received in the absence of the accused.
The prisoner cannot be deprived of his right to be present at
all stages of his trial; but that he must be, under all circum-
stances, or the proceedings will be erroneous, cannot, we
think, be sustained.” ! :

§ 688. But subject to the exception thus stated in the Ohio
case, if indeed this Ohio doctrine is to be received elsewhere,
the rule is very broad, that, in a case of felony or treason, the
prisoner must be present during the whole of the trial, in-
cluding the giving in of the evidence, and the rendition of
the verdict, else no valid judgment can be pronounced on the
verdict.2, How far this doctrine extends into the higher mis-

1 Fight v. The State, 7 Ohio, pt. 1,
180. In a Connecticut case of coun-
terfeiting, the defendant was out on bail
when the jury came in with their ver-
dict. The court said: ‘* The defendant
must appear, or there will be no pro-
priety in receiving the verdict”; and
thereupon declined to receive it in his
absence. The State v. Hurlbut, 1 Root,
90. To the like effect is Sneed v. The

' State, 5 Pike, 431. In Mississippi, in a
case of misdemeanor, a contrary doc-
trine was held, in accord with the Ohio
decision. Price v. The State, 36 Missis.
531.

2 Clark v. The State, 4 Humph. 254 ;
Andrews v. The State, 2 Sneed, 550 ;

[482]

The State v France, 1 Tenn. 434; Peo-
ple v. Perkins, 1 Wend. 91; The State
v, Cross, 27 Misso. 332; Nomaque
v. People, Breese, 109; The State v.
Hughes, 2 Ala. 102; The State ». Buck-
ner, 25 Misso. 167, decided, however,
on a statute ; People v. Kohler, 5 Cal.
72; Cole v. The State, 5 Eng. 318;
Sneed v. The State, 5 Pike, 431. In
Ohio, where the judge, presiding at the
trial of » prisoner for murder, sent to
the jury, on their request, in the absence
of the prisoner, a copy of the statutes
of the State, calling their attention to
the three sections relating to homicide;
this was held to be an exercise by the
judge of a discretion which did not
CHAP. XL.] PRESENCE OF PRISONER IN COURT.

§ 690

demeanors, punishable by imprisonment, is not quite clear; it
does not, we have seen,! extend at all into the lower, punish-
able merely by fine. Thus, in Vermont, it has been laid
down, that, in trials for the inferior misdemeanors, a verdict
may be given in the absence of the defendant; the jury not
being required to look upon the prisoner, as in cases of felo-
ny. After a verdict is thus rendered in such a trial before a
justice of the peace, the justice, if the defendant does not ap-
pear, may call him and his bail; or he may issue a warrant
to apprehend him, and bring him in to receive sentence.”

§ 689. In an English case at the assizes before Park, J., it
was held, that, if a prisoner is tried for a misdemeanor under
the commission of jail delivery, and during the trial becomes
ill, and is obliged to be assisted out of court, the judge will
discharge the jury, even though his counsel should consent to
going on in his absence. And if he recovers during the as-
size, he may then be tried; the proceedings connected with
the trial being commenced de novo. And this learned judge
said, that ‘the case could not go on in the absence of the pris-
oner without his consent; and he doubted whether the con-
sent of his counsel would be sufficient, this not being like the
case of a defendant who is absent when the judgment is given
on him in the Court of King’s Bench, as that is done with his
own consent, and generally on his own application.” ®

§ 690. Passing now to the sentence, we find the law to be
clear, that, if the offence is a misdemeanor of the lower kind
which is punishable merely by a fine ;¢ or if, though punish-

prejudice the prisoner, and to furnish
no ground for the reversal of judgment.
Gandolfo v. State, 11 Ohio State,
114. In another case; when the jury
went out, the court adjourned for din-
ner; announcing, before adjournment,
that as soon as the jury agreed the
court-house bell was to be rung, and the
court would then take the verdict. In
about half an hour the bell was rung,
the court assembled, the prisoner who
was on bail was present; and at his re-
quest the court sent for his counsel, and
waited for him for more than twenty

minutes, within which the counsel could
have come to the court from any place
in the village; and, the prisoner mak-

‘ing no objection, the court received the

verdict and polled the jury in the ab-
sence of the counsel. Held, that the
court had done all which was proper,
and the verdict was good. Crusen v.
The State, 10 Ohio State, 258.

1 Ante, § 686.
2 Sawyer v. Joiner, 16 Vt. 497. .

3 Rex v. Streek, 2 Car. & P. 413.
* Reg. v. Templeman, 1 Salk. 55 ;
Son ». People, 12 Wend. 344.

[483]
[BOOK VI.

§ 691 PRACTICE.

able by fine and imprisonment, a fine only is actually to be
imposed ;! it is not essential for the defendant to be present
at the rendition of judgment. But if imprisonment is to be
inflicted, or any other punishment higher than a fine, wheth-
er the crime is treason, felony, or misdemeanor, the defend-
ant must be personally present.2 In the language of Holt,
C. J.: “No judgment for corporal punishment can be pro-
nounced against a man in his absence; and no writ can be
granted to seize a man and set him in the pillory.”’ ?

§ 691. Between the verdict and sentence, it has been said
that it is not necessary, though it may be highly proper, for
the prisoner to be at any time personally present in court,
even where the offence of which he stands convicted is a cap-

ital one.

1 People v. Taylor, 3 Denio, 98, note ;
Commonwealth v. Crump, 1 Va. Cas.
172; People v. Clark, 1 Parker C.C. 360.
In an English case, the question being
upon the passing of sentence in the ab-
sence of the prisoner, says the report :
“The general doctrine, laid down by
the court, and agreed by the counsel on
both sides, was, that, though such a mo-
tion was subject to the discretion of the
court, either to grant or to refuse it,
where it was clear and certain that the
punishment would not be corporal, yet
it ought to be denied in every case where
it was either probable or possible that
the punishment would be corporal.”
Rex v. Hann, 8 Bur.1786. In a case of
libel,which was misdemeanor, where, af-
ter verdict, the defendant was in prison
awaiting his sentence, it was represent-
ed to the court, on his behalf, that the

prosecutor refused to bring him up for .

sentence, and that he was too poor him-
self to defray the charges of this pro-
ceeding ; whereupon, as a favor to him,
the court passed sentence in his absence.
But it does not appear from the case
what the sentence was. Rex v. Boltz, 8
D. & RB. 65, 5 B. & C. 334.

2 Hamilton v. Commonwealth, 4 Har-
ris, Pa. 129 ; Safford v. People, 1 Par-
ker C. C. 474; People v. Winchell, 7

[484]

“« His counsel,” it was added, “ may ask for a new

Cow. 525 and note ; Anonymous, Lofft,
400.

8 Rex v. Harris, 1 Ld. Raym. 267,
Comb. 447, 448, Holt, 399, Skin. 684;
Rex v. Harrison, 12 Mod.156. In an-
other case, this learned judge said ;
“Judgment cannot be given against
any man in his absence for a corporal
punishment ; he must be present when
it is done..... If we give judgment
that he shall be put in the pillory, it
might be demanded when, and the an-
swer would be, when they can catch him.
And there never was a writ to take a
man and put him in the pillory; it is
not like to a capias pro fine, which is to
bring him into court to pay the mon-
ey. A defendant may submit toa fine,
though absent, if he has a clerk in court
that will undertake for the fine.” Duke’s
case, Holt. 399. A justice of the peace,
convicted of a misdemeanor in his of-
fice, must be present at the praying of
judgment. Rex v. Harwood, 2 Stra.
1088. Still, upon affidavit of general
infirmity, the court will dispense with
his personal presence. Rex v. Constable,
7D. & R. 663, 3 B.& Ad. 659, note.
In Iowa, by statute, judgment in cases
of misdemeanor may be rendered in the
absence of the prisoner. Hughes v. The
State, 4 Iowa, 554.
CHAP. XL.] PRESENCE OF PRISONER IN COURT.

§ 692

trial in his absence.” ? It is difficult to accept this as the uni-
versal doctrine ; and. perhaps the law on this subject is not
held in all judicial localities alike. In cases of misdemean-
ors punishable only by fine, the law is indeed so: thus, in
England, where a defendant has been found guilty upon an
indictment for an offence which does not subject him to a
corporal punishment, he need not be present in court in or-
der to move by his counsel for a new trial.2, And where, in a
case of libel, there was a motion for a new trial in the ab-
sence of the prisoner, Abbott, C. J. said: “If the defendant is
in custody under a warrant of a judge of this court, as a
consequence of the conviction in this case, and he is not de-
tained in prison for any other cause, we think the motion for

a new trial may be made without his personal presence.”’ ®
§§92. There are some other cases, English and Amer-

1 Jewell v. Commonwealth, 10 Har-
ris, Pa. 94, 101, 102.

2 Reg. v. Parkinson, 2 Den. C. C.

- 459, 6 Eng. L. & Eq. 352, 15 Jur. 1011.

3 Rex v. Boltz, 8 D. & R. 65, 66.

* The following is a digest of some
of the cases: A defendant in the actual
custody of the marshal upon criminal
process, in consequence of an indict-
mentin the Court of King’s Bench, need
not be present when a motion for a new
trial is made on his behalf in the same
court. Rex. Hollingberry, 6 D. & R.
344, 4 B. & C. 329. All the defendants
convicted upon a criminal information
must be in court upon a motion on their
behalf for a new trial. Rex ». Scully,
1 Alcock & Napier, 262. Where a de-
fendant has been found guilty upon an
indictment for perjury, and sentenced
to transportation, but he is not in custo-
dy under the sentence, a motion for a
new trial cannot be made unless he is
present in court. And Lord Campbell,
C. J. observed: “I have thought it a
hardship that one of several defendants
could not move unless all were before
the court; but here there is only one
defendant; and it is peculiarly neces-
sary that he should be here, in order

41*

that he may be forthcoming to meet his
sentence.” Reg. v. Caudwell, 17 Q. B.
503, 2 Den. C. C. 372, note, 6 Eng. L.
& Eq. 352. Where, on an indictment
for conspiracy, the record of conviction,
after verdict and before sentence, had
been removed by certiorari into the Court
of King’s Bench, and the prisoners were
in custody, their counsel proposed to
move in arrest of judgment while they
were not present ; but the court refused
to hear the motion, saying, it was a
“ fixed and invariable rule of practice
in this court, that the defendants must,
after conviction of such an offence as
this, be present in court if they would
move in arrest of judgment.” The re-
porter, Burrow, who was himself con-
versant in such matters, adds the follow-
ing note: “ The case of a conviction
differs from that of a special verdict ;
where the presumption of innocence
may be supposed to continue, and there-
fore the personal presence of the de-
fendant is not necessary at the argument
of it.” In Blackstone’s report of this
case it is said to be “ the constant prac-
tice that the defendant should be per-
sonally present, whenever he moves to
arrest a judgment on a conviction re-

[485]
§ 692 PRACTICE. [BOOK VI.

ican, in which matters of this sort have been passed upon.
It is not easy to derive from them any exact and certain rules,
nor is it perhaps important. Yet it may be suggested, as a
general proposition, resting rather in the reason of the thing
than in any precise line of adjudication, that, if there is to be
agitated a mere matter of law before the court, there is no
reason why it should not be done by counsel in the absence
of the prisoner. But if any order is to be passed, such as
for an imprisonment, or perhaps ordinarily for a discharge
from custody, the prisoner should be personally present. If,
however, the prisoner has absconded, or is in any position
analogous to what is termed being in contempt, it will be
highly judicious for the court to decline hearing even a mere
legal argument in the case, except in his presence.

moved by certiorari ; because otherwise
it may be an expense to the prosecutor
afterwards to bring him up by habeas
corpus.” Rex v. Spragg, 2 Bur. 928, 1
‘W.BI. 209. One who, in Missouri, ap-
peals from a conviction and fine before
a justice, for an assault and battery, and
enters into the recognizance required by
statute, need not appear in person in the
appellate court, and it is error to affirm
the judgment upon his failure to do so.
The State v. Buhs, 18 Misso. 318. In
Maine, a defendant had been tried and
convicted upon an indictment for an ag-
gravated offence. He excepted ; and,
for want of sureties to appear at the
law term at which the exceptions were
to be heard, he was committed. Mean-
while he escaped. His counsel proposed
to argue the exceptions; but the court

declined to hear the case until the de-,

fendant should be again in custody.
[486]

Anonymous, 31 Maine, 592. On © is
to show cause, the defendant need not
appear in person, but may show cause
by affidavit. People v. Van Wyck, 2
Caines, 333. But the contrary seems
to be intimated in People v. Freer, 1
Caines, 485. Upon error, the personal
presence of the prisoner is not necessary
to give jurisdiction, nor is it a legal
right. He may assign errors by counsel,
and judgment be rendered in his ab-
sence. Donnelly v. The State, 2 Dutch-
er, 463, 601. To the like effect, see
People v. Clark, 1 Parker C. C. 360.
If the prisoner is absent only at the time
when sentence is pronounced, a new
trial will not be granted, but the appel-
late court will remand the case with di-
rections to the court below to render
judgment according to law. Cole v.
The State, 5 Eng. 318.
CHAP. XLI.] SURETIES TO APPEAR. § 695

CHAPTER XLI.
SURETIES FOR THE DEFENDANT'S APPEARANCE.

§ 693. THE amount of matter which presents itself for
consideration under this title is appalling. Should the au-
thor discuss every possible point, and cite every reported case,
this chapter alone would fill the remaining pages allotted to
the present volume. But of what use? The subject is spe-
cifically regulated by statutes in most of the States, perhaps
all of them; and, should we expand it greatly here, it would
lie upon the pages an unread and unconsulted mass. There
are some things, however, which it is important should be
here said.

§ 694. Hawkins says: “It seems that the words ‘ bail’ and
‘mainprise’ are often used promiscuously in our law books
and acts of parliament, as signifying one and the same
thing. And it is certain that bail and mainprise agree in
this notion, that they save a man from imprisonment in the
common jail, by his friends undertaking for him, before cer-
-tain persons for that purpose authorized, that he shall appear
at a certain day, and answer the crime with which he is charg-
ed, and be justified by law..... The chief, if not the only
difference between bail and mainprise seems to be this, that a
man’s mainpernors are barely his sureties, and cannot justify
the detaining or imprisoning of him themselves, in order to
secure his appearance ; but that a man’s bail are looked upon
as his jailers of his own choosing, and the person bailed is,
in the eye of the law, for many purposes, esteemed to be as
much in the prison of the court by which he is bailed, as if he
were in the actual custody of the proper jailer.” +

§ 695. In the United States, the thing which is thus point-
ed out, and signified by the word bail, exists; and what
Hawkins adds concerning it, is as true here as in England.

1 29 Hawk. P. C. ¢. 15, § 2, 3.
[487]
§ 696 PRACTICE. [BOOK VI

He says: “It seems certain, in every bailment, that, if the
party bailed be suspected by his bail as likely to deceive them,
he may be detained by them, and enforced to appear accord-
ing to the condition of the recognizance, or may be brought
by them before the justice of peace, by whom he shall be
committed unless he find new sureties.”! Thus it is held,
that a person who is bail may arrest his principal anywhere,
doing it peaceably unless resistance is made. He may also,
if he prefers, depute another person to make the arrest. But
the person thus deputed cannot substitute still another in his
place ; for the arrest must be made by such deputy personal-
ly, or by him in connection with others who are actually or
constructively in his presence.”

§ 696. So also the right of a man who is bail to surrender
his principal, and thus discharge himself, exists with us.? In
South Carolina it was held, that a surrender to a deputy
sheriff is not sufficient. The surrender, it was held in Ken-
tucky, may be made to the circuit court, if in session ; but, if
the term has not arrived, then it may be made to the tribunal

by which he was sent to the court for trial.

1 2 Hawk. P. C. c. 15, § 3.

2 The State v. Mahon, 3 Harring.
Del. 568. :

8 Harp v. Osgood, 2 Hill, N. ¥. 216;
The State v. Lazarre, 12 La. An. 166.

* The State v. Le Cerf, 1 Bailey, 410.
Richardson, J.in pronouncing the opin-
ion of the court in this case, said: “ Ad-
mitting that such a surrender to the
high sheriff would be sufficient, which
is by no means admitted, yet assuredly
a surrender to a mere ministerial sub-
officer is unauthorized. The surrender
of the principal, in such a case, must be
to some officer who may commit the
principal to jail, or admit him to bail ;
but the deputy sheriff can do neither.
He cannot require witnesses to at-
tend, nor the proceedings to be brought
before him. He would have no au-
thority, ex officio, to detain the prison-
er, and no specific warrant is in his
hands to justify the detention, A sur-

[488]

But the statutes,

render to a justice of the peace may be
legal. He has a discretionary power to
detain him in order to inquire into the
charge ; but his sub-officer, the constable,
would have no such right. It is unlike
the case of bail in civil actions. There
the sheriff holds the process in his own
hands, and merely receives the defend-
ant, whom he had before committed to
the friendly custody of his bail.” p. 411.

5 Commonwealth v. Bronson, 14 B.
Monr. 361. Said Simpson, J.: “ In
legal contemplation, a prisoner, notwith-
standing he is bailed, remains in the
custody of the persons who become his
bail, and they have a right, at any time,
to discharge themselves by a surrender
of their principal. If the circuit court
be in session, the surrender should be
made to it, as the sureties are bound
that the prisoner shall appear in that
court and answer to the prosecution
against him. If, however, they should
CHAP. XLI.] SURETIES TO APPEAR. § 697

in many of the States, particularly point out how the surren-
der is to be made.

§ 697. Those who take pains to consult the English books
— as, for instance, Hawkins’s Pleas of the Crown — will find
the history of this law of bail drawn out in full. It will be
best that here, instead of tracing the English doctrine from its
source, through multitudes of acts of parliament, and along
a line of winding and sometimes zig-zag judicial interpreta-
tion and practice, we give a digest of some American cases ; !

desire to make a surrender before the
commencement of the term of the circuit
court at which the prisoner is recogniz-
ed to appear, it should be made to the
same tribunal that sent him to the cir-
cuit court for further trial. Either of
the two justices that constituted the ex-
amining court should, upon application
by the bail to make a surrender of the
prisoner, procure the attendance of the
other justice, receive the surrendey, and
commit the prisoner to jail, unless he
gives other bail for his appearance at
the next: term of the circuit court.”
p. 362. See also, as to the mode of
making the surrender, Rountree v. Wad-
dill, 7 Jones, N. C. 309. In Kentucky,
a defendant charged with felony appear-
ed upon the day named in his recogni-
zance, and pleaded to the indictment.
He was thereupon put upon trial, and
by order of court was placed in the cus-
tody of the sheriff during the progress
of the trial; but, after the jury had re-
tired, and while they were considering
of their verdict, he made his escape from
the sheriff, and failed to appear for judg-
ment upon the verdict found by the jury.
It was thereupon held, that the sureties
in the recognizance were not liable for
his escape. Commonwealth v. Cole-
man, 2 Met. Ky. 382. Yet the mere
appearance of the defendant before the
tribunal, without any order of the court
taking charge of him, will not release
his sureties. Commonwealth v. Ray,
cited 2 Met. Ky. 386.

1 1, In South Carolina, the protection

of the habeas corpus act against unlawful
confinement goes no further than the
enlargement of the prisoner on bail, if
the offence is bailable. Independently
of this act, a judge at chambers may
let to bail for any offence whatever, and,
in making up his judgment in the case,
may look beyond the warrant of com-
mitment. But where the warrant con-
tains a specific charge of an offence not
bailable, the prisoner connot be discharg-
ed, under the act, either on bail or other-
wise. The State v. Everett, Dudley, S.
C. 295. The judges of the court of gen-
eral sessions, in South Carolina, like the
Court of King’s Bench, have the pow-
er at common law, which is not taken
away by the statute, of bailing in all
cases. The State v. Hill, 3 Brev. 89.
In Virginia, a justice of the peace can
only take the recognizance of bail after
the examining court has decided that
the prisoner is bailable, and fixed the
amount of bail. He has no general au-
thority to admit to bail, after an exam-
ining court has sent the prisoner to the
superior court for trial. Hamlett o.
Commonwealth, 3 Grat. 82. The gen-
eral court has original jurisdiction con-
current with the circuit superior court,
and with the judge thereof, in vacation,
to admit a prisoner to bail in criminal
cases, for good cause shown. Common-
wealth v, Semmes, 11 Leigh, 665. In
capital cases in a new State, before the
courts are fully organized or their terms
prescribed, and there is no jail or pris-
on where prisoners may be securely

[489]
§ 697

PRACTICE.

[BOOK V1.

then, after stating a few further points in our text, proceed

to the next chapter.

kept, the court will, in its discretion, ad-
mit prisoners to bail. People v. Smith,
1 Cal. 9. Judges of the superior courts
of Georgia have the discretionary pow-
er to bail in all cases. Such is tlie Eng-
lish law ; “nor will it be denied that a
judge of the superior court in Georgia
may exercise all the powers in relation
to bail which appertain to the Court of
King’s Bench in England, or to a judge
thereof in vacation.” The State v. Ab-
bot, R. M. Charl. 244. In New York,
the supreme court have authority to let
prisoners to bail in all criminal cases
whatever. Ex parte Tayloe, 5 Cow. 39.
The same power is also possessed by
the courts of oyer and terminer. It is
incident to their authority to hear and
determine the offence itself. People v.
Van Horne, 8 Barb. 158. The eighth
article of amendments of the constitu-
tion of the United States, prohibiting the
requiring of excessive bail, the imposing
of excessive fines, and the infliction of
cruel and unusual punishments, does not
apply to the State governments. Com-
monwealth v. Hitchings, 5 Gray, 482.
2. Let us now bring together some
points of a more miscellaneous kind.
In cases of felony the prisoner is not to
be let to bail, as matter of right, and
the court should not bail him unless it
appears, upon all the facts, that letting
to bail will, in all reasonable probabil-
ity, secure his forthcoming. Where the
probability of conviction is so strong as
to warrant the belief that the prisoner
would by flight, and at the expense of
any mere pecuniary forfeiture, seek to
evade trial and punishment, he should
not be bailed. People v. Dixon, 4 Par-
ker C. C. 651. In another New York
case, Paige, J. observed: “ The power
to bail, in cases of felony not capital,
has in this State been repeatedly exer-
cised, after indictment, by the court of
oyer and terminer and general sessions,
where there was no probability of flight

[490]

from justice, without reference to the
probable guilt of the accused. Where
the punishment is death, or a degrading
imprisonment, the presumption is strong
that the accused will attempt to elude
the demands of justice ; and, in admit-
ting to bail, regard should therefore be
had as well to the nature of the pun-
ishment as to the probable guilt of the
party. And the safest course, where the
guilt of the prisoner is clear, is to deny
bail. But where there is so great an ap-
proximation to certainty as to leave no
doubt in the minds of the court, that the
accused will not attempt to abscond from
justice, I will not say that there may
not be cases where it would be a proper
exercise of judicial discretion to admit
to bail, if the party can give in the
amount with the sureties required, even
if the question of guilt did not stand in-
different on the er parte evidence pro-
duced on the part of the people. For
allowing bail under such circumstances
would be in consonance with the princi-
ple, that the object of such imprison-
ment before trial is not the punishment
of the accused, but to secure his forth-
coming to stand his trial, and to abide
the punishment to be inflicted in case
he shall be convicted.” People 2
Van Horne, 8 Barb. 158, 165, 166. On
habeas corpus to reduce bail, if it ap-
pears that the defendant is unable to
give sufficient bail, the court will not re-
duce the amount, although too large,
since it would be mere form. People v.
Town, 3 Scam. 19. In Virginia, by
construction of the statute, a justice may
bail a prisoner charged with felony, if
only a slight suspicion of guilt attaches
to him. Tyler ». Greenlaw, 5 Rand.
711. It is not a matter of course to
admit to bail in case of manslaughter.
Ex parte Tayloe, 5 Cow. 89. The su-
perior court have power to bail in all
cases, and will ordinarily exercise it in
favor of the prisoner, in cases not cap-
CHAP. XLI.] SURETIES TO APPEAR. § 698

§ 698. The principles upon which bail is permitted to be
given in are not uniform in all judicial localities. In a late
English case, Earle, J. condensed the doctrine into the follow-
ing statement : “‘ Wherever the crime is of great magnitude,
the punishment of a high nature, and the evidence of crime
clear, then an application of this sort ought in my judgment
to be refused. But if any one of these requisites be wanting,
the court will exercise its discretion in the matter.”! Asa
branch of this doctrine, it seems to have been held, in some
localities, that, at common law, there can be no bail given af-
ter a conviction by the petit jury, though sentence has not
yet been passed. Thus, in a murder case, where the verdict
was doubtful, and the judges did not agree upon it; the court,
holding the matter in advisement, refused to bail the prisoner
in the mean time. And where there was a conviction for a
forcible entry, and proceedings for its reversal were pending,
the court refused to bail the defendant; “ being in execu-
tion for a fine, and having committed a very notorious breach
of the peace in the heart of the city; though a long vacation
was coming on.”? In another case of misdemeanor, when a
verdict had been rendered against the defendant, and the court
was taking time to consider whether the conviction was right
and what should be the sentence, “ Lord Kenyon said, that,
unless the prosecutor consented to the defendant’s remaining
out on bail, it wasa matter absolutely of course that he should
be committed: the court had no discretion to exercise, and
the practice was too well settled to admit of argument.” 4

ital. The State v McNab, 20 N. H.
160. Where several indictments were

“ A man convicted of felony is not bail-
able, for bail is allowed when it is in-

founded on one criminal transaction,
and might have been all included in one
indictment, though prosecuted as sev-
eral offences, and the prisoner was ac-
quitted in one case, it was held, that it
afforded such a presumption of his in-
nocence in the others as entitled him to
be bailed. Green v. Commonwealth, 11
Leigh, 677.
1 Reg. v. Barronet, Dears. 51, 60, I
Ellis & B. 1, 16 Eng. L. & Eq. 361.
* 2 Rex v. Morgan, 1 Bulst. 84, 88.

different or doubtful whether the person
accused be guilty or not ; but, as to him
who is convicted, two juries have pass-
ed upon him, and it is evident that he
is guilty.” Anonymous, Jenk. Cent.
219; 3 Dy.179, pl. 42. See also, Rex
v. Keat. 1 Salk. 103, 12 Mod. 102, 5
Mod. 288.
‘* Reg. v. Layton, 1 Salk. 106, Fortes.
39.
* Rex v, Waddington, 1 East, 143,

159.
[491]
PRACTICE. [BOOK VI.

§ 700

§ 699. Still, though the common-law doctrine seems thus
strong, the meaning appears simply to be, that the judicial
discretion must be strongly moved to induce it to allow bail
between the conviction and sentence, even in a case of mis-
demeanor. But, where one was convicted of a libel, and
was sick, the court said: “The offence is so great that an
adequate punishment may endanger his life, and to lessen
the judgment would be an ill precedent; therefore bail him
for the present, and we will give judgment when he is bet-
ter.’ And this is the doctrine which is accepted as the
sound law in the United States. Thus, in Mississippi, the
right of a prisoner to bail after a conviction is governed by
the rules and practice of the common law. The power thus,
to bail is possessed by the circuit courts; and it should be ex-
ercised, in cases not capital, whenever a sound discretion will
justify, yet with great caution.2, And in Georgia, the supe-
rior courts are held to have the same power, with respect to
bail, as the Court of King’s Bench in England ; therefore
they may permit bail to be given at any time down to the
final execution, — a discretion which is to be exercised ac-
cording to the circumstances of the particular case.? If the
reader will consult the statutes of his own State, he will prob-
ably find, what is true in most of the States, that the provis-
ions for bail after a conviction have been made by legislation
somewhat more liberal than they were at the common law.

§ 700. After sentence has been actually pronounced, and
the prisoner is taken in execution, it is plain that there can-
not in ordinary cases be any bail ; for, if there could be, the

1 Rex v. Bishop, 1 Stra. 9. This
doctrine prevails in England at the pres-
ent day. But where a case has been re-
served for the court of appeal upon a
conviction for an assault with an.intent
to commit a felony, the court will not
deem itself bound to admit the prison-
er to bail until the point reserved is
decided, even although the offence is
only a misdemeanor, and the prison-
er was admitted to bail of right pre-
viously to the trial. Reg. v. Bird, 5

[492]

Cox C. C. 11, 19, 2 Eng. L. & Eq. .
439,

2 Ex parte Dyson, 25 Missis. 356.

® Corbett v. The State, 24 Ga. 391.
In South Carolina, after conviction of
an infamous offence, a defendant will
not be admitted to bail on motion in ar-
rest of judgment, or for a new trial.
But it is otherwise in cases of assault
and battery, and misdemeanors punish-
able only by fine and imprisonment.
The State v. Connor, 2 Bay, 34.
SURETIES TO APPEAR.

CHAP. XLI.] § 701

punishment itself would fail. But there may be such pro-
ceedings taken for the reversal of the judgment, as, in matter
of abstract justice, should require bail to be accepted in the
mean time. In one case, “ the defendant was convicted for
keeping an alehouse without license, and was thereupon com-
mitted for a month as the act directs. After he had lain a
fortnight he brought a certiorari, and upon the return of it
he was admitted to bail; the court being of opinion, that, if
the conviction was confirmed, they could commit him in exe-
cution for the residue of the time.” 1 But when one in exe-
cution for the criminal offence gf usury brought a writ of
error, his application for bail “ was denied ; though there was
_an apparent error in the record, and though it was formerly
the practice to bail in such case ; for, per Curiam, we ought
not to enlarge a prisoner in execution.” ? Itis perhaps, there-
fore, to be accepted as the common-law doctrine, that, if the
case has gone to final sentence, and the prisoner is taken in
execution, he cannot have bail while he is pursuing measures
to have the judgment reversed. But this doctrine has been
changed, and bail is in proper cases allowed, in England, by
recent statutes ;2 and the same is probably true in many or
most of our States.‘

§ 701. The weight which is to be given to the question of
the probable guilt or innocence of the person accused de-
pends, in some localities and in some measure, upon whether
or not the offence is below the grade of felony. And, though
the books are not quite clear upon the point, we may, on the
whole, accept the following statement as being substantially

1 Rex v. Reader, 1 Stra. 531. Ade 2 Anonymous, 3 Salk. 58, Vent. 2, 1

fendant in execution for a fine, on con-
viction for a riot, was admitted to bail,
on recognizance to prosecute his writ of
error with effect or to pay his fine;
“though the court did all agree he
could not be taken in execution again ;
and here was cited the case of the King
v. Legier, where Lord Hale refused to
take bail, he being in execution, and
having brought his writ of error, unless
he brought the money into court.” Rex
». Saltash, 2 Show. 93.

VOL. I. 42

Sid. 286. And see Rex v. Brooke, 2
T. R. 190.

8 Stats. 8 & 9 Vict.c. 68,§1, and16 &
17 Vict. c. 32, § 1; Archb. Pl. & Ev.
13th Lond. ed. 169; Dugdale «. Reg.
Dears. 254, 2 Ellis & B. 129, 20 Eng. L.
& Eq. 86; Dugdale v. Reg. 24 Law J.
y. 8. M. C. 55, 29 Eng. L. & Eq.
134.

* See People v. Lohman, 2 Barb.
450.

[493]
PRACTICE. [Book VI.

§ 702
correct. When felony was punishable, as of course, by death,
if there was reason to believe the party seeking bail was guil-
ty, no bail whatever could be accepted for him ; because, in
the language of Scripture, “ all that a man hath will he give
for his life’ ; and to take bail, and let the felon escape, as it
was supposed he would do, would be in effect for the court
to overrule the law, and accept of a fine, instead of the life
of the offender, as punishment for the offence. Let us trace
this matter out a little way.

§ 702. By the common law, all offences, however high, in-
cluding murder and other felonies, and treason, were, and still
are, where the common-law rules prevail, bailable within the
judicial discretion ; though, in the case of these high crimes, not
of right. And under the common law as it used to be held,
in the case of these high crimes, if the court could see no
reasonable doubt of the defendant’s guilt, it would not admit
him to bail. And this, in some localities, is the doctrine now.?
Therefore in one case it was said: “Ifa man be found guil-
ty of murder by the coroner’s inquest, we sometimes bail him;

1 Reg. v. Barthelemy, Dears. 60, 61;
Rex v. Higgins, 4 0. 8., U. C.83; Har-
vey’s case, 10 Mod. 334; Danby’s case,
Skin. 56 ; Stafford’s case,T. Raym. 381 ;
United States v. Hamilton, 3 Dall. 17;
United States v. Stewart, 2 Dall. 343;
United States v. Burr, 1 Burr’s Trial,
806 - 312; Rex v. Wyndham, 1 Stra.
2; The State v. McNab, 20 N. H.
160; Rex v. Delamere, Comb. 6, 111;
Rex v. Pepper, Comb. 298; Rex ce.

Yates, 1 Show, 190; Watson’s case, 1°

Salk. 106; Farington’s case, T. Jones,
222 ; Anonymous, Lofft, 281 ; People
v. Hyler, 2 Parker C. C.570; Page ».
Price, 3 Salk. 57; The State v. Hill, 3
Brev. 89, 1 Tread. 242; The State v.
Rockafellow, 1 Halst. 332; Foley ».
People, Breese, 31; Ex parte Bryant,
34 Ala. 270; People v. Van Horne, 8
Barb. 158; Reg. v. Barronet, Dears.
51,1 Ellis & B. 1,16 Eng. L. & Kq.
361.

2 Ex parte Tayloe, 5 Cow. 39; Peo-
ple v. Lohman, 2 Barb. 450. In a late

[494]

English case it was held, that, where
a person has been committed upon a
charge of wilful murder, found by a
coroner’s jury, upon evidence sufficient
to support the finding, the court will not
admit him to bail, especially if he has
made a statement admitting his partici-
pation in the affair out of which the
charge of murder arises. And Lord
Campbell, C. J. said: “I am firmly
convinced, that, if any person in the
highest station in the realm had been
charged by the verdict of coroner's
jary with the crime of murder, and
had confessed that he was an acces-
sory in the duel with the deceased in
respect of which that verdict had heen
obtained, there is not any tribunal in
this country that would allow him to go
at large before trial. The court has to
see....the nature of the charge, the
evidence adduced in support of that
charge, and the punishment.” Reg. v.
Barronet, Dears. 51, 56, 57, 1 Ellis &
B. 1, 16 Eng. L. & Eq. 361.
CHAP. XLI.] SURETIES TO APPEAR. § 703

because the coroner proceeds upon depositions taken in writ-
ing, which we may look into. Otherwise, if a man be found
guilty of murder by a grand jury ; because the court cannot
take notice of their evidence, which they by their oath are
bound to conceal.” ?

§ 703. Consequently, in cases of felony and treason, if there
was an application to admit the prisoner to bail, the first and
most prominent inquiry related to the question, whether or
not he was probably guilty. With this view, as we have just
seen, the court would look into the depositions taken before
the coroner.? So also it would look into the depositions given
before the committing magistrate? And in Indiana, at the
present time, there is a habeas corpus statute by force of
which the court may inquire of witnesses, after indictment
found, though they should be the same witnesses who testi-
fied before the grand jury, what are the real facts of the case;
and, if thus it appears to be bailable, though according to the

indictment it is not, bail may be allowed.*

1 Mohun’s case, 1 Salk. 104. And
see the next section. Also see Rex ».
Magrath, 2 Stra. 1242; Rex v. Dalton,
2 Stra. 911; where the same distinction
is also drawn.

2 See also Rex v. Pepper, Comb. 298,
where it is said : ‘‘ We ought to have the
examinations [before the coroner’s in-
quest] before us ; and, if it appear to be
a case of hardship, we may bail.” See
also The State v. Dew, 1 Taylor, 142.

8 Rex v. Horner, Cald. 295, 1 Leach,
4th ed. 270. In this case, the court, ac-
cording to the report in Leach, observed
as follows: ‘‘ The court in such a case
never form any judgment whether the
facts amount to felony or not, but mere-
ly whether enough is charged to justify
a detainer of the prisoner and put him
upon his trial. The practice of this court
is, .... that, even where the commit-
ment is regular, the court will look into
the depositions to see if there be a suffi-
cient ground laid to detain the party in
custody ; and, if there be not, they will
bailhim. So, also, where the commit-

ment is irregular, if it appear that a se-
rious offence has been committed, they
will not discharge or bail the prisonér
without first looking into the depositions,
to see whether there is sufficient evidence
to detain him in custody.”

* Lumm ». The State, 3 Ind. 293.
In South Carolina, on a motion for leave
to give bail in a criminal case, the court
may hear and consider affidavits, al-
though they go to contradict the finding
of a jury. The State v. Hill, 1 Tread.
242. The same doctrine is held in New
York, as applying to cases where the
prisoner has been committed by a cor-
oner ; but this would be soeven in Eng-
land. People v. Beigler, 3 Parker C. C.
316. Still it was held, that, after indict-
ment found, the depositions taken be-
fore the committing magistrate cannot
be looked into. People v. Dixon, 4
Parker C. C. 651. And see People v.
Hyler, 2 Parker C. C. 570. Ifa pris-
oner, remanded for trial by the examin-
ing court, on a charge of felony, applies
to the higher court to be let to bail, on

[495]
§ 705 PRACTICE. [BOOK VI.

§ 704. Of kin to this question of guilt is another one, which
more often comes up in England where the criminal is pur-
sued by a private prosecutor, than in this country where pros-
ecutions are in the hands of a public officer. Thus, when
one was committed as an accessory after the fact in high
treason, he was bailed ; “ because,” in the particular case,
“ though the commitment was for high treason, yet there was
no prosecution, and a sessions was past.’”?} But in Georgia
it was held, that a mere omission to prosecute at the next
succeeding term, when the omission has not operated oppres-
sively, is not sufficient ground for allowing bail.? Likewise,
where the case is continued a term for the want of witnesses,
it does not follow that the prisoner will be bailed.®

§ 705. Though the prisoner is sick, yet, if the confinement
does not aggravate his sickness, bail will not therefore be al-
lowed him, especially in the case of a very high crime.* But
if his life is in danger from the imprisonment,’ or in some
cases if his health is poor or is injured thereby,® or if there is
a famine in the jail,’ this will furnish ground, more or less
strong according to the circumstances, for admitting the pris-

oner to bail.

the ground that there is only a slight
suspicion of his guilt, an indictment
found against him and the judgment of
the examining court are not conclusive
against the application. It is a ques-
tion for the sound discretion of the
court, and they will examine other evi-
dence. Commonwealth v. Rutherford,
5 Rand. 646; Ex parte Tayloe, 5
Cow. 39. But see Hight v. United
States, Morris, 407. Manslaughter is a
bailable offence ; and where, ona charge
of murder, there are circumstances fa-
vorable to the accused, and it appears
probable that he is guilty of manslaugh-
ter only, it is in the discretion of the
judge to allow bail. The State v.
Wicks, R. M. Charl. 139.

1 Fitzpatrick’s case, 1 Salk. 103. So,
where the party had lain in prison, with-
out prosecution, a year. Rex v. Wynd-
ham, 1 Stra. 2,4. Also, where he had

[496]

thus lain two terms. Crosby’s case, 12
Mod. 66. A woman under indictment
for the murder of her husband was ad-
mittted to bail, where it appeared by
the “affidavits of the fact, that it was a
malicious prosecution ; and there being
nothing done either upon the indictment
or coroner’s inquest, or at the assizes ;
and the man being dead above a year.”
Barney’s case, 5 Mod. 323. And see
The State v. Hill, 8 Brev. 89.

2 The State 7. Abbot, R. M. Charl.
244.

3 United States v. Jones, 8 Wash. C.
C. 224.

* Rex vo. Wyndham, 1 Stra. 2, 4.

5 Aylesbury’s case, 1 Salk. 103 ; Unit-
ed States v. Jones, 3 Wash. C. C. 224,

8 Rex v. Aylesbury, Holt, 84; Har-
vey’s case, 10 Mod. 334.

7 Herbert’s case, Latch, 12.
CHAP. XLI.]

SURETIES TO APPEAR. § 107

§ 706. Descending from treason and felony to misdemean-
or, the considerations, even at the common law, appear to
be somewhat different. In misdemeanor, it is, at least in or-
dinary cases, the right of the person to give bail.!’ It is man-
ifest, then, that a prisoner held to answer for a misdemeanor
may give bail equally whether he is guilty or not. And it
is of no consequence to consider the question of his probable
guilt, except as it affects the question of the amount of bail
necessary to make sure his appearance to take his trial. Still,
the fact, for instance, of a bill having been found against him,
is important in this aspect of the question.? So also, in these
cases, if sureties who are pecuniarily sufficient present them-
selves, the magistrate who sits to receive bail has no right to
reject them because he does not like their politics or their
personal character.?

§ 707. Now, it is important for the reader to observe, that,
in many and perhaps in most of our States, there are statuto-
ry or constitutional provisions expressly giving to prisoners,
when charged with certain crimes, which include the princi-
pal felonies, the right to put in bail. Thus, in Alabama, the
words of the constitution and the code are, “ entitled to bail
as a matter of right.” * And in Illinois, by statute, “ all per-

1 Reg. v. Badger, 4 Q. B. 468, 7 Jur.
216, 6 Jur. 994 ; People v. Kennedy, 2
Parker C. C. 312; People v. Johnson,
2 Parker C. C. 322. Persons commit-
ted for forcibly resisting custom-house
officers in the execution of their du-
ty, cannot demand to be bailed as of
right. Rex v. Dunn, 5 Bur. 2640.
Although it is not necessary to state in
a warrant of commitment on a charge
of felony that the act was done “ felo-
niously, ” yet, unless it sufficiently ap-
pears to the court that a felony has been
committed, they are bound to bail the
defendant. Rex v. Judd, 2 T. R. 255.
In this case, Ashhurst, J. said: “ How
ever improper the defendant’s conduct
appears to have been upon the proceed-
ings before the justices, yet, unless it
appears upon the face of the commit-

42 *

ment itself that the defendant is charg-
ed with a felony, we are bound by the
habeas corpus act to discharge him ; tak-
ing such bail for his appearance to take
his trial as we in our discretion shall
think fit, according to the circumstances
of the case.” p. 256, 8. c. 1 Leach, 4th
ed. 484, 2 Kast P. C. 1018.

2 Reg. v. Scaife, 9 Dowl. P. C. 553, 5
Jur. 700.

3 Reg. v. Badger, 4 Q. B. 468, Dav.
& M. 375.

* Ex parte Banks, 28 Ala. 89, ac-
cording to which case, a person in-
dicted for murder is entitled to bail as a
matter of right, unless the court is of
opinion, on the evidence adduced, that
he is guilty of murder in the first de-
gree. And if the circuit court refuses,
the evidence may be set out in excep-

[497]
§ 708 PRACTICE. [BOOK VI.

sons shall be bailable by sufficient sureties, unless for capital
offences, where the proof is evident, or the presumption
great.” 1 So by the constitution, in Mississippi, “ all prison-
ers shall, before conviction, be bailable by sufficient sureties,
except for capital offences, where the proof is evident or the
presumption great.” In Kentucky, the language of the con-
stitution is somewhat different; being ‘“ that all prisoners
shall be bailable, by sufficient sureties, unless for capital of-
fences, when the proof is evident or presumption great.” 3
And the constitutional provision in Missouri is similar to that
in Kentucky.* Perhaps the latter as well as the former class
of provisions make the reception of bail imperative in cases
not falling within the exception; at all events, the former
class leave the question of bail, in the higher crimes, quite
different from what it is at the common law.

§ 708. And it is the doctrine most prevailing in this coun-
try, that, since for other purposes a man charged with a crime
shall be presumed to be innocent, until tlie finding of a jury,
and the judgment of the court rendered upon the finding, fix
‘the alleged guilt legally upon him, the same presumption
shall prevail also when application is made to the judicial dis-
cretion for bail. If, therefore, it is sufficiently shown that

tions, and application be made to the
supreme court. See also ex parte Bry-
ant, 34 Ala. 270.

1 Foley v. People, Breese, 31, 32.

2 Ex parte Wray, 30 Missis. 673,
where it is held, that it is solely within
the discretion of the court to admit to
bail where the capital nature of the of-
fence is clearly shown or strongly pre-
sumed. But in all offences not capi-
tal, and in capital offences not clearly
shown or strongly presumed, bail may
be claimed as of right. And see Moore
v. The State, 36 Missis. 137. In Ohio,
on a provision in similar terms, an ap-
plication for bail is held to be always
addressed to the sound legal discretion
of the court; but, ifon a charge of mur-
der the evidence against the defendant
appears to be so weak that it would not

[498]

sustain a verdict of guilty, on a motion
for a new trial, the court would, under
this constitutional provision, adjudge the
prisoner bailable by sufficient sureties ;
and, where he is held on two several in-
dictments for the same act, an acquittal
on one will afford such a presumption
of innocence as to warrant the court in
bailing him on the other. The State v.
Summons, 19 Ohio, 139,

3 Ullery v. Commonwealth, 8 B.
Monr. 8, where it is held, that one .
charged with murder may be admitted
to bail, if the examining court shall
think the proof is not evident, or the
presumption great.

* Shore v. The State, 6 Misso. 640,
where it is held, that murder, except in
the first degree, is a bailable offence.
CHAP. XLI.] SURETIES TO APPEAR. § 710

the appearance of the defendant to answer to the demands of
the law can be made sure by bail, it is the more generally re-
ceived American doctrine that bail should be accepted ; thus
postponing, in effect as well as in name, the punishment until
the judgment of the court is formally rendered. .

§ 709. A refusal to grant bail is not such an adjudication
of the matter as absolutely precludes a second application.
Yet, after such refusal, it is within the discretion of the court,
in proper cases, to decline looking into the matter a second
time.! And in one case, the matter was held to be res adju-
dicata, and not examinable again.? So while the question is
pending before one competent tribunal, another should not
interfere.? ‘

§ 710. There are various other points, but it is deemed
best this chapter should close here. This subject of bail com-
plicates itself so much with particular statutory directions, that
it is scarcely possible a chapter should be written, intended for
use in all the States, wherein every practitioner will find all
the light for which he may be in search; while the statutes
themselves are not given, and they are almost infinite in num-
ber and variety. Still it is believed that this chapter will be
found very helpful.

1 Ex parte Campbell, 20 Ala. 89.
2 People v. Cunningham, 3 Parker C. C. 531.
8 Ex parte Kittrel, 20 Ark. 499.
[499]
§ 713 PRACTICE. [BOOK VI

CHAPTER XLII.

THE PRELIMINARY EXAMINATION AND HOLDING THE DEFENDANT
TO ANSWER TO THE CRIMINAL CHARGE.

§ 711. Tue subject of this chapter, like the last, brings to
the attention of the writer more matter, which might be
easily wrought into the chapter, than it will be practically
wise to use. Itis regulated by statutes in our States gener-
ally ; yet, for the understanding of the statutes, and of some
points which the statutes do not ordinarily embrace, it be-
comes desirable to pursue the discussion here a little way.

§ 712. We have already had occasion to call to mind some
things relating to the origin and nature of the office of justice
of the peace. An important part of the functions of this of-
ficer, in all our States, consists in the binding over or commit-
ment of persons suspected of crimes, to answer to the tribu-
nal having judicial cognizance of them. And there are, in
most of the States, books written for the use of justices, fur-
nishing them with the necessary forms, and with specific in-
structions how to proceed. Such a book it is presumed the
justice who reads this chapter has. No attempt, therefore, at
giving forms, will here be made.

§ 718. It has been much questioned whether or not the
warrant of the justice of the peace must, where the statute is.
silent on the point, be under seal. Chitty says?: “ It is gen-
erally laid down, that the warrant ought to be under the
hand and seal of the justice who makes it;® but it seems
sufficient if it be in writing, and signed by him, unless a seal
is expressly required by particular act of parliament.” 4 Ac-

1 Ante, § 631 et seq. C.¢.18, § 21; 4 Bl. Com. 290; 2 Saund.
2 1 Chit. Crim. Law, 38. - 805, note 13.
3 1 Hale P.C. 577; 2b. 111; Com. 4 Willes, 411; Bull. N. P. 83 ; Burn.
Dig. Imprisonment, H.7; 2 Hawk. P. Just. Warrant IV.; Dick. Just. War-
rant, III. ; Toone, 450.
[500]
CHAP. XLII]

PRELIMINARY EXAMINATION, ETC. § 718

cording to this view, a warrant of commitment has been held,
in South Carolina} and in New Hampshire,? to be sufficient
without seal. But in most or all the other localities in which
the question has arisen in the United States, a.seal has been
held to be necessary. It was so adjudged in North Carolina,
Ruffin, C. J. observing: “Though it seems recently to be
thought sufficient by some, if the warrant be in writing and
under the hand of the justice, yet so many of the older and
most respectable authorities lay it down positively, that a seal
is necessary to a warrant for a criminal charge, that we are
obliged to consider it established law, and do not feel at lib-
erty to say anything to unsettle it.”? And in Maine, where
the question was decided in the same way, Shepley, C.J. said
of the authorities: “‘ The cases deciding that a warrant may
be valid without a seal, do not appear to have been those au-
thorizing an arrest or imprisonment of a person.”* Yet a
wafer is, prima facie, a sufficient seal ; it being adequate if it
was adopted by the magistrate as such.2 What is a seal is a
question of law for the court; therefore the court, and not
the jury, determines whether a warrant is under seal or
not.§

1 The State ». Vaughn, Harper, 313.

2 Thompson ». Fellows, 1 Fost. N. H.
425; Davis v. Clements, 2 N. H. 390.

8 Welch v. Scott, 5 Ire. 72,75. To
the like effect see The State v. Caswell,
T. U. P. Charl. 280 ; Lough z. Millard,

Whenever it has been held, that a war-
rant issued in a criminal prosecution
might be valid without a seal, it is-ap-
parent that there has been a straining
of the law to support the proceedings.”
p. 369.

2.1. 436; and the remaining cases
cited to this section.

4 The State v. Drake, 36 Maine, 366,
868. This learned judge added: “If
a warrant issued without a seal in a
criminal prosecution, by a magistrate,
may be valid, it would seem that one
might be where so issued by any court
of justice; and yet all such precepts is-
suing from w# court having a seal, must
be issued under the sanction of that
seal. This appears to have been ad-
mitted by the Lord Chief Justice, in
his opinion- in the case of Padfield v.
Cabell, Willes, 411, when the pre-
cept issued from any court of record.

5 The State v. McNally, 34 Maine,
210.

6 The State v. Worley, 11 Ire, 242.
In Maine, a complaint, made before a
justice of the peace, and the justice’s
warrant, were on the same piece of pa-
per, and the only seal was at the right
hand of the justice’s signature to the
complaint; so that, in order to separate
the two, and leave the seal on the war-
rant, they must be divided by a crooked
line. Yet it was held, that there was a
sufficient seal to the warrant. Tenney,
J., speaking of the papers before the
court, on which this question arose, ob-
served: “The magistrate does not say,

[501]
§ 715 PRACTICE. [BOOK V1.

§ 714. The warrant of arrest must state for what offence
the arrest is to be made; though it need not descend into
the particulars of the charge, as the indictment does.!. The
same is true of the mittimus, under which the commitment
to prison is made.? Precisely how minute either the one or
the other must be, ig a question partly of local usage, upon
which the authorities are not quite harmonious ; as the read-
er will see on consulting the cases cited to this section.

§ 715. In England, the judges of the courts which are
“‘intrusted with the conservation of the peace’? are author-
ized to issue warrants of arrest, also to commit people already
before them, when the occasion for the commitment judicial-
ly appears. And the like power, in many of our States, is
held to belong as of right to our judges. Thus, if an indict-
ment is pronounced bad, the judge is not necessarily obliged
to let the defendant go; but he may commit him, or hold him
to bail, to answer to a fresh indictment ;® or he may order
the officer to take the prisoner before a justice of the peace to

be proceeded against on fresh complaint.’

that there was a seal on the complaint ;
but he does say, that the warrant was
under seal. Can the Court say that
they must necessarily be separated by a
straight line?”? The State v. Coyle,
33 Maine, 427.

1 In re Booth, 3 Wis.1; Caudle v.
Seymour, 1 Q. B. 889, 1 Gale & D. 454;
The State v. Rowe, 8 Rich. 17; The
State v. Everett, Dudley, S. C. 295;
Floyd v. The State, 7 Eng. 43.

2 Rex v. Judd, 2 T. R. 255, 1 Leach,
4th ed. 484, 2 East P. C.1018; The
State v. Bandy, 2 Ga. Decis. 40 ; Ex
parte Rohe, 5 Pike, 104; Ricker, pe-
titioner, 32 Maine, 87; Rex v. Kendal,
1 Ld. Raym. 65, 1 Salk. 347; Rex v.
Wyndham, 1 Stra. 2; Rex v. Marks, 3
East, 157; Day v. Day, 4 Md. 262;
Bennac v. People, 4 Barb. 31; Com-
monwealth v. Ward, 4 Mass. 497; Rex
v. Kendall, Skin. 596, 599.

3 1 Hale P. C. 578.

* Chitty says: “A warrant may be
granted in extraordinary cases by the

[502]

But if, in an ap-

privy council or secretaries of State ;
by the speaker of the House of Com-
mons or Lords; by justices of jail de-
livery, or oyer and terminer, justices at
sessions, or by a judge of the Court of
King’s Bench,” 1 Chit. Crim. Law, 34.
Lord Hale says of the last named judges,
that, “to avoid the trouble to the coun-
try of bringing up offenders, they usu-
ally direct their warrants to apprehend
the parties and bring them before some
justice of peace near adjoining, either to
be examined, or bound over to the
sessions, and farther to be proceeded
against according to law.” 1 Hale P.
C. 578. See also 1 Chit. Crim. Law,
5, 36, 107; 2 Hawk. P. C.c. 16, § 3, 4.

5 Consult Berry v. The State, Dud-
ley, S. C. 215; Commonwealth ». The
Jailer, 1 Grant, Pa. 218; The State >.
Thornton, 13 Ire. 256.

6 United States v. Townmaker, Hemp.
299.

7 Young v. Commonwealth, 1 Rob.
Va, 744. ,
CHAP. XLIL] | PRELIMINARY EXAMINATION, ETC. § 717

peal case, the indictment being found fatally defective, the
offence appears at the same time to be barred by the statute of
limitations, the appellate court will dismiss the case altogeth-
er. It must be observed, of the entire matter of this section,
that, however clear the English law may be, it is hardly safe
to speak of the American practice, further than the decisions
in a particular State have gone.

§ 716. Passing now over an immense number of points
which might be introduced into this chapter, we shall call
attention to a few American decisions relating to search-war-
rants. It was observed by Merrick, J., in a late Massachu-
setts case, as follows: “‘ Search warrants were never recog-
nized by the common law as processes which might be availed
of by individuals in the course of civil proceedings, or for the
maintenance of any mere private right; but their use was
confined to cases of public prosecutions, instituted and pur-
sued for the suppression of crime or the detection and punish-
ment of criminals. Even in those cases, if we may rely on the
authority of Lord Coke, their legality was formerly doubted ;
and Lord Camden said that they crept into the law by imper-
ceptible practice. But their legality has long been consider-
ed to be established, on the ground of public necessity ; be-
cause, without them, felons and other malefactors would
escape detection.” * While, therefore, search-warrants are
allowed in the United States, ii conformity to the English
practice, they are here guarded with particular care, to pre-
vent their becoming engines of wrong; even, in probably
most of the States, by express constitutional provisions.
Thus, in Massachusetts: “‘ Every subject has a right to be
secure from all unreasonable searches and seizures of his per-
son, his houses, his papers, and all his possessions; all warrants,
therefore, are contrary to this right, if the cause or founda-
tion of them be not previously supported by oath or affirma-
tion, &e.”’ 8
’ §T1T. And it was held in Massachusetts, that a statute

1 Redfield v. The State, 24 Texas, Howell St. Tr. 1029, 1067; 1 Chit.

133. Crim. Law, 64.
2 Robinson v. Richardson, 13 Gray, 8 Mass. Const. Bill of Rights, art.

454, 456, 457; Entick v. Carrington, 19 14. .
* [503]
§ 719 PRACTICE. [BOOK V1.

authorizing magistrates to issue warrants to search for and
seize lottery tickets, or materials for a lottery, made or pro-
cured contrary to the provisions of law, was not unconstitu-
tional, as being in conflict with this provision! And the
same was held of a statute authorizing the search for and
seizure of intoxicating liquors kept contrary to law.2 There
have been various decisions in this State as to the form of the
warrant. Thus, if the warrant and the complaint on which
it is issued are on the same paper, and the things to be
searched for are duly described in the complaint, then the
warrant directs the officer to search for the things “‘ mentioned
in the above complaint,” this is sufficient, without any further
specification of the things in the warrant.? If the precept
commands the officer to break and enter a dwelling-house, it
must state a sufficient cause. And there are various other
points adjudged, of a like nature.®

§ 718. In Kentucky the constitutional provision is, “ that
no warrant to search any place, or to seize any person or
things, shall issue without describing them as nearly as may
be.” And it is held, that, to use the language of the court,
“the place, the person, and the things should all be de-
scribed.” ®

§ 719. In the United States, many questions concerning
search-warrants have arisen of late, under statutes regulating
the sale of intoxicating liquor. It is not deemed best to con-
sider them here. It is hoped that this chapter will be found
useful, though the limits prescribed for the author would not
permit him to discuss any question at large, or even allude to
but few of the many questions which are embraced within
the general subject.

1 Commonwealth v. Dana, 2 Met. 5 Downing 2. Porter, 8 Gray, 539 ;

329. Allen v. Staples, 6 Gray, 491 ; Guen-
2 Allen v. Staples, 6 Gray, 491. ther v. Day, 6 Gray, 490 ; Common-
8 Commonwealth v. Dana, supra, wealth v. Lottery Tickets, 5 Cush. 369.
4 Sanford v. Nichols, 13 Mass. 286. ® Reed v. Rice, 2 J. J. Mar. 44.

[504]
CHAP. XLII] THE GRAND JURY, ETC. § 721

CHAPTER XLIII.
THE GRAND JURY AND ITS FINDING.

Sect. 720. Introduction.
721-730. Constitution and Organization of the Grand Jury.
731-734. The Presentment.
735-739. Procedure of the Grand Jury.
740-754. How to take advantage of its Errors.

§ 720. IN our chapters relating to the indictment, we con-
sidered most of the questions which would seem to be em-
braced within the broad title of this chapter. There remain
for examination the following: I. The Constitution and Or-
ganization of the Grand Jury; II. The Presentment; III.
Some further Questions relating to the Procedure of the
Grand Jury; IV. How to take Advantage of Errors in its
Doings.

4
I. The Constitution and Organization of the Grand Jury.

§ 721. The subject of this sub-title is so far regulated by
statutes in the several States that we shall not do well to dis-
cuss it very much at large here. Something, also, concern-
ing the organization of the grand jury was said in a previous
chapter of this volume.1| Hawkins says: “It seems clear
that by the common law every indictment must be found by
twelve men at the least, every one of whom ought to be of the
same county, and returned by the sheriff or other proper of-
ficer, without the nomination of any other person whatsoever ;
and ought also to be a freeman, and a lawful liege sub-

‘ject; and consequently neither under an attainder of any
treason or felony, nor a villein, nor alien, nor outlawed,
whether for a criminal matter, or, as some say, in a personal
action.”’?

1 Ante, § 136 et seq. 2 2 Hawk. P. C. c. 25, § 16.
VOL. L 43 [505]
§ 728

§ 722. In the United States, the qualifications of grand
jurors are, to a considerable extent, fixed by statutes. Thus,
according to the statutes prevailing in some localities, the
grand juror must be a freeholder or householder ;1 but the
want of this qualification is not, at the common law, any ob-
jection.2 With us, an alien has the common-law disqualifica-
tion ;® yet in Indiana it was held, under the statutes, that an
indictment cannot be objected to because one of the grand
jury who found it was an alien.*

§ 723. An Indiana judge observed: “ A grand jury is the
great inquest between the government and the citizen; an
institution that should be preserved in its purity; and no
person should ever be permitted to take a seat as a member
thereof, except such good and lawful men as will impartially
and faithfully carry the true objects of the institution into ef-
fect.” Therefore it was held, that a person who cannot con-
scientiously find a man guilty of an offence which will sub-
ject him to the penalty of death, is incompetent to serve on
the examination of a capital charge.6 So also it disqualifies
a grand juror that he has expressed an opinion as to the guilt
of a prisoner whose case is to be investigated. But the com-
petency of a grand juror is to be tried by the same rules as

PRACTICE. [Book VI

1 The State v. Rockafellow, 1 Halst.
332; The State v. Duncan, 7 Yerg.
271; Stanley v. The State, 16 Texas,
557; The State v. Herndon, 5 Blackf.
75; Jackson v. The State, 11 Texas,
261; The State v. Motley, 7 Rich. 327 ;
Barney v, The State, 12 Sm. & M. 68;
The State v, Middleton, 5 Port. 484;
The State v. Ligon, 7 Port. 167. A
person in possession of land under a
parol contract for the purchase of it, is a
freeholder such as is qualified to act as
grand juror in Virginia, though a writ
of right be pending against him at the
time to recover the land. Common-
wealth v. Cunningham, 6 Grat. 695. So
is one who is entitled to a share in the
reversion of land held and occupied
by a widow as her dower. Wysor ».
Commomwealth, 6 Grat.711. See fur-
ther as to what constitutes the freehold

[506]

qualification. Commonwealth v. Burch-
er, 2 Rob. Va, 826.

2 Anonymous, Russ. & Ry. 177. See
as to this, 1 Chit. Crim. Law, 308 ; 2
Hawk. P. C. c. 25, § 19.

8 Commonwealth v. Cherry, 2 Va.
Cas. 20.

* The State v. Taylor, 8 Blackf.178.

5 Jones v. The State, 2 Blackf. 475,
478, opinion by Stevens, J.; Gross v.
The State, 2 Ind. 329.

® People v. Jewett, 3 Wend. 314;
The State v. Gillick, 7 Jowa, 287. See
however, The State v. Clarissa, 11 Ala.
57. And see The State v. Hughes, 1 Ala.
655 ; post, § 746. The court will not
set aside a grand juror because he has
originated a prosecution for a crime
against a person whose case will come
under the consideration of the grand
jury. Tucker’s case, 8 Mass. 286.
CHAP. XLII]

THE GRAND JURY, ETC. § 724

that of a petit juror ;? therefore, upon this subject, the reader
will do well to consult the next chapter.

§ 724. The reader should distinguish between those impedi-
ments which disqualify the person from being a grand juror,
and of which, therefore, the parties can take advantage, and
those which may be brought forward merely by the juror
himself, to excuse him from serving. Thus, says Hawkins :
“Tt is enacted by the statute of Westm. 2, c. 28, ‘ that old
men above the age of seventy years, persons perpetually sick,
or infirm at the time of the summons, or not dwelling in the
county, shall not be put in juries, or lesser assizes.’ And the
equity thereof, and the reason of the thing, seem plainly so
far to extend to grand juries, that, if it shall appear that any
of the persons above mentioned be returned on a grand jury,
the court, into which they are returned, will easily excuse
their non-appearance. But it seems clear that any such
persons, being returned on a grand jury, may lawfully serve
upon it, if they think fit.”? And in accordance with this
doctrine it was laid down in Texas, that persons to be affect-
ed by the finding of the jurors may object to their fitness ; but
they have nothing to do with the question whether or not they
are exempt from serving, of which sort is the question of their
age.2 Irrespective, therefore, of the rights of the parties, ju-
rors often make application to the court to be excused from
serving ; and it is not generally supposed, that, when the
court excuses a juror for what the judge believes to be good
cause, a party can take any advantage of this.*

1 The State v. Gillick, 7 Iowa, 287.

2 2 Hawk. P. C. c. 25, § 20.

3 Breeding v. The State, 11 Texas,
257. To the same effect, see also The
State v. Brooks, 9 Ala. 9. Probably
the objection that the juror is not an in-
habitant of the county is one of which
the party can take advantage. Ante,
§ 721.

* Where the record shows that a
grand juror was excused by the court,
the excuse will be presumed to have
been sufficient, though the reason is not
set down. Cotton v. The State, 31

Missis. 504. But in another Mississip-
pi case it was considered to be irregu-
lar to discharge a grand juror after
the grand jury had been impanelled,
sworn, and charged, because of the sick-.
ness of his wife. If, however, the dis-
charge does take place, and a sufficient
number remain to do business, then,
should a defendant be indicted by the
remaining jurors, he has no cause to
complain. But if, in addition to this,
the court causes a substitute to be sworn
upon the panel and take the place of
the juror thus irregularly discharged,

[507]
§ 726 [BOOK VI.

’ PRACTICE.

§ 725. At common law, a grand jury for the transaction
of business must consist of not over twenty-three persons, and
not under twelve.! And this rule is followed, either by force
of the common law or by express statutes, in many or most
of our States.? Still, there are States in which it is varied by
statute ; thus, in Louisiana, the number is not to exceed six-
teen ;® in California, while it must not exceed twenty-three,
it is not to be less than seventeen ;* in Arkansas, it must not
be less than sixteen.5 Twelve jurors must, at common law,
concur in finding the indictment; and there need not be
more than twelve, either concurring, or actually present, or

even having’ a nominal existence on the panel.®
§ 726. We shall see, in the next chapter, that, where a
jury trial is secured to defendants by a constitutional provis-

the whole doings of the body thus cor-
rupted will be made void. The only
case in which the circuit courts possess
the authority to cause other grand ju-
rors to be sworn, after the original pan-
el has been sworn, are those in which
some grand juror, after he has been im-
panelled and sworn, has died, or is
sick, or absent. In such case, the court
may order substitutes to be summoned
from among the bystanders. Portis
». The State, 23 Missis. 578. See also
Box v. The State, 34 Missis. 614;
Baker v. The State, 23 Missis. 243;
Thompson v. The State, 9 Ga. 210. In
Virginia, on the first day of the term
of the circuit superior court, a grand
jury was impanelled and sworn, and
proceeded in the discharge of its duties.
On the next day it was discovered that
one of the grand jurors was disquali-
fied, whereupon the court discharged
him, and ordered another to be sworn.
And it was held, that this was regular,
and the grand jury was legally consti-
tuted. Commonwealth v. Burton, 4
Leigh, 645. And see Jetton v, The
State, Meigs, 192; Lowrance v. The
State, 4 Yerg. 145 ; Wadlin’s case, 11
Mass. 142; Findley v. People, 1 Mich.
234; The State v. Jacobs, 6 Texas, 99;
Baldwin’s case, 2 Tyler, 473.

[508]

11 Chit. Crim. Law, 311; Rex v.
Marsh, 1 Nev. & P. 187,6 A. & E. 236.

2 Commonwealth v. Wood, 2 Cush.
149 ; People v. Thurston, 5 Cal. 69,
where Murray, C. J. says: “The stat-
ute provides that twenty-four shall be
summoned, but limits the number of
those competent to act to twenty-three.”
Therefore it was held, that an indict-
ment found by a jury of twenty-four
persons is void. “If more than twenty-
three persons can hold an inquest of the
county, there would be no limit to the
number; and a party might be indicted
by less than a majority of the jury,
our statute having provided that twelve
grand jurors may present an indictment.”
p. 69. See also Leathers v. The State,
26 Missis. 73; Rex ». Marsh, supra.

8 The State v. Swift, 14 La. An. 827.

* People v. Roberts, 6 Cal. 214.

5 The State v. Hawkins, 5 Eng. 71.

6 Ante, § 721; The State v. Miller,
8 Ala. 343; Johnston v. The State, 7
Sm. & M. 58; Dowling v. The State,
5 Sm. & M.664; Hudson v. The State,
1 Blackf. 317; The State v. Davis, 2
Ire. 153 ; Commonwealth v. Sayers, 8
Leigh. 722; lLow’s case, 4 Greenl.
439 ; The State v. Clayton, 11 Rich.
581; The State v. Symonds, 36 Maine,
128 ; People v. Butler, 8 Cal. 435.
CHAP. XLII. ] THE GRAND JURY, ETC. § 728

ion, it is not competent for legislation to reduce the number
constituting the petit jury below twelve. So it is without
doubt incompetent for legislation to provide, that an indict-
ment may be found by a less number than twelve grand ju-
rors, in those cases in which prisoners have the constitutional
right to be tried on indictment. In Georgia, however, it was
held, consistently with this view, that, in the case of minor
misdemeanors, where there is no constitutional right to the
trial on indictment, a statute may well provide for a grand
jury of fifteen, nine only of whom need concur in the
finding.?

§ 727. The oath of the grand jury is probably, in most of
our States, the same, in substance, as it is in England.? The
English form is as follows :

“ Oath of the Foreman. Sir, you as foreman of this grand inquest, for our
Sovereign Lady the Queen and the body of this county, shall diligently
inquire, and true presentment make, of all such matters and things as shall
be given to you in charge, or shall otherwise come to your knowledge,
touching this present service ; the Queen’s counsel, your fellows’, and your
own, you shall keep secret ; you shall present no one through envy, hatred,
or malice, neither shall you leave any one unpresented through fear, fa-
vor, affection, gain, reward, or hope thereof, but you shall present all things
truly and indifferently as they shall come to your knowledge, according to
the best of your understanding. So help you God.

“ Oath to the other Jurymen, four at a time. The same oath that your
foreman hath taken on his part, you shall well and truly keep, and observe
on your respective parts. So help you God.”

§ 728. The reader perceives, that the oath contains a prom-
ise of secrecy. ‘There are, in some of our States, statutes al-
so, which, in terms more or less varying from one another
and from the common-law oath, enjoin substantially the same
thing. In Missouri, the provision is, that “no grand juror
shall disclose any evidence given before the grand jury.”
And the court has held, that one does not violate this provis-
ion when he mentions that a person, whom he names, testified

1 Thurman v. The State, 25 Ga. 220. ing it is purely a matter of practice,
2 The form of the oath administered and must of necessity be, governed by
to grand jurors is of ancient origin, circumstances.” Brown v. The State,
and should be substantially observed ; 5 Eng. 607.
“but the mode or order of administer. | * 2 Gude Crown Pract. 583.

43 * [509]
§ 729 PRACTICE. [BOOK VI.

before the grand jury, upon a subject-matter which he like-
wise names. It was deemed, that, though the making of such a
statement is contrary to the spirit of the statute, it is not con-
trary to its letter. This statute was, perhaps, afterward qual-
ified somewhat in its terms; but it.was held, that, in a civil
suit for malicious prosecution, a member of the grand jury
could not be compelled to disclose, as a witness, what took
place, material to the point in issue, in the grand jury room.?
There are States in which the grand jurors are not even sworn
to secrecy.?

§ 729. “But where the common-law oath and the common-
law rules prevail, it is sometimes a nice question to determine
how far, and under what circumstances, the.grand juror may
be either permitted or required to make known what occurred
in the course of the investigations. It is plain, on the one
hand, that there are circumstances in which the disclosure
may be made ; and, on the other hand, that there are those

in which it may not.

1 The State v. Brewer, 8 Misso. 373,

2 Beam v. Link, 27 Misso. 261.
Scott, J. said : “This case is like that
of Tindle v. Nichols, 20 Misso. 326, in
which it was held, that, in an action for
slander for charging one with having
been guilty of perjury in swearing before
a grand jury, the grand jurors would not
be permitted to testify as to what the
plaintiff swore in giving evidence be-
fore them. This opinion is founded on
the statute, and the statute itself has its
origin in principles of the common law.
Grand Jurors are now and have always
been sworn to secrecy. .... The 17th
section of the 3d article of the act reg-
ulating proceedings in criminal cases
(R. C. 1855, p. 1169) enacts, that no
member of a grand jury shall disclose
any evidence given before the grand ju-
ry, nor the name of any witness who
appeared before them, except when
lawfully required to testify thereto.
This section will be construed in refer-
ence to the 15th, which prescribes the
cases in which a grand juror may testi-

[510]

fy as to the matters that transpired be-
fore them.” p. 262.

8 Sands v. Robison, 12 Sm. & M.
704; Granger v. Warrington, 3. Gilman,
299,

* Ante, § 301, note. In a recent and
well-considered Massachusetts case, it
was held, that, for the purpose of im-
peaching a witness who has testified
against the defendant, he may call upon
a member of the grand jury to state
what the witness said on his examina-
tion in the ease before them. The court
deemed that the authorities on this
point were not uniform ; but, as to the
reason of the law, Bigelow, J. observ-
ed: “ After the indictment is found and
presented, and the accused is held to
answer, and the trial before the traverse
jury is begun, all the facts relative to
the crime charged and its prosecution
are necessarily opened ; and no harm
can arise to the cause of public jus-
tice by no longer withholding facts ma-
terial and relevant to the issue, mere-

‘ly because their disclosure may lead to

.
CHAP. XLII. ]

THE GRAND JURY, ETC.

§ 730

§ 730. If we look at the principle on which this matter
rests, we have the following. The reasons which require the

the development of some part of the
proceedings before the grand jury.”
Commonwealth v. Mead, 12 Gray, 167,
170. On a previous occasion it was
held by the same court, that a member
of the grand jury is a competent wit-
ness on the trial before the petit jury, to
prove that a particular person did not
testify before the former body. Com-
monwealth v. Hill, 11 Cush. 187. In
Indiana it was adjudged, that, after a
defendant has endeavored to impeach
the testimony of a witness by showing
contradictory statements to have been
made by him, the prosecuting officer
‘ may introduce a member of the grand
jury to state what the witness testified
to before that body, by way of confirm-
ing him. Perkins v. The State, 4 Ind.
222. And as a general proposition, the
oath of the grand juror does not pre-
vent his testifying to what was done be-
fore the grand jury, when public jus-
tice, or the judicial establishment of
private rights, requires. Burnham 2.
Hatfield, 5 Blackf.21. The North Car-
olina court also held, that, on the trial
of an indictment, grand jurors may be
required to testify what a witness stated
before them. Ruffin, C.J. said: “It
seems to us that the witness [who testi-
fied before the grand jury] has no priv-
ilege to have his testimony treated as a

confidential communication, but that he -

ought to be considered as deposing, un-
der all the obligations of an oath, in a
judicial proceeding ; and, therefore,
that the oath of the grand juror is no
legal or moral impediment to his solemn
examination under the direction of a
court, as to the evidence before him,
whenever it becomes material to the ad-
ministration of justice.” The State »v.
Broughton, 7 Ire. 96. In Mississippi,
no oath of secrecy is taken by the grand
jurors ; neither does the policy of the
law forbid them to testify, in an action
of slander, to matter which transpired

before them, material to this issue.
Sands v. Robison, 12 Sm. & M. 704.
In Arkansas, a deferidant on trial under
an indictment is not entitled to an ex-
hibit of the testimony taken before the
grand jury, made by one of that body,
and delivered to the attorney for the
State, under the provisions of the stat-
ute. Hofler v. The State, 16 Ark. 534.
According to a New York case, if there
is an indictment charging five offences
in as many different counts, a defendant
cannot be permitted to show, by the
testimony of a grand juror, that only
one offence was sworn to before the
grand jury. People v. Hulbut, 4 Denio,
1383. This New York doctrine is prob-
ably sound law everywhere ; it rests
upon reasons different from those which
govern the foregoing cases. The same
may be said of a decision in Connecti-
cut, which holds, that no evidence will
be received, for the purpose of vitiating
an indictment, either from the grand
jurors, or from the witnesses before
them, or from any other person requir-
ed by law to be present, as to the evi-
dence given on such inquiry. The fol-
lowing extract from what was said by
Williams, C. J. shows how different is
the Connecticut practice, in some re-
spects, from the practice in some of the
other States. “It is true,” he said,
“that, by the liberality of our practice,
a prisoner may be present during the
examination of witnesses before the
grand jury. But our constitution and
the oath of the grand jury recognize
presentments, as well as indictments by
the grand jury, in which case the ac-
cused would not be present; and the
accused is never present during the de-
liberations of the grand jury ; of course,
cannot know individual opinions.” ,Dhe
State v. Fasset, 16 Conn. 457, 469.
In England, if an attempt is made be-
fore the Court of Queen’s Bench to de-
stroy an indictment, the court will not

[511]
§ 731 PRACTICE. [BOOK VIL

secrecy are of a nature looking to the public good ;_ because,
if the grand jury could leave their room and disclose what
they are doing, defendants who had not been arrested could
make their escape ; and because, also, persons would be de-
terred from voluntarily going forward and informing of crime
before them. But when the reasons for keeping the matter
private have passed away, the obligation of secrecy would seem
to have ended also. Yet when, in addition to this, the claims
of public justice must go unsatisfied unless the disclosure is
made, the same reason which originally required secrecy re-
quires that the secret be no longer kept.

II. The Presentment.

§ 731. In what has gone before, no notice is taken of a
finding by the grand jury, which is known to the English
common law, and to the law of some of our States, as the
presentment. It is a sort of substitute for an indictment ;
and has its natural growth in the soil of that practice in which
the grand jury act upon bills previously drawn and prepared for
them ; instead of, as in some of our States, having the prosecut-
ing officer attend them and advise in their investigations, and
draw for the occasion such bills as they are prepared to find.
Chitty says:? “A presentment, in its limited sense, differs
only from an indictment, in being taken in the first instance
by the grand jury, of some offence within their own knowl-
edge, and into which it is their duty to inquire. After the
presentment has been delivered into court by the grand in-
quest, an indictment is framed upon it by the officer of the
court; for it is regarded merely as instructions for an indict-
ment, to which the party accused must answer.* When it is

receive the affidavit of a grand juror,
as to what passed in the grand jury
room, relating to the bill of indictment.
Rex v. Marsh, 1 Nev. & P. 187,6 A. &
E, 236,2 Har. & W. 366, 1 Jur. 38.
See also Reg. v. Hughes, 1 Car. & K.
519. Ihave not attempted in this note
to illustrate the English law; here is a
strong enrrent of American decisions,
all setting one way.

[512]

1 See ante, § 136, 137.

2 1 Chit. Crim. Law, 162.

8 4 Bl. Com. 301; Bac. Ab. Indict-
ment, A; 2 Inst. 739; Com. Dig. In-
dictment, B ; Burn Just. Presentment.

44 Bl. Com. 301; Burn Just. Pre-
sentment ; Bac. Ab. Indictment; Com.
Dig. Indictment, B ; 2 Inst. 739 ; Cro.
C. C. 82; Dick. Just. Presentment.
CHAP. XLIL] THE GRAND JURY, ETC. § 733

drawn up by jurors specially returned to inquire of that of-
fence only, it is called an Inquisition.” 2

§ 732. It is difficult to see why, in our own age, and ac-
cording to American legal usages, it is necessary that an in-
dictment should be drawn upon a presentment; for, if the
presentment is made out in due formal style, it is nothing else
than what in many of our States is called an indictment.
Anciently, in England, when the records of the court were
in Latin, and the jury brought in, as they always did, their
presentment in English, it must, of course, have been ren-
dered into Latin before the prisoner could be arraigned upon
it; and now, as well as then, in England, where all indict-
ments have to be engrossed upon parchment, and the present-
ment is given in by the grand jury on paper, the engrossment
must take place before there can be any proceedings upon it
against the defendant. But in our States, the records being
in English and on paper, it is difficult to see why a present-
ment, if it is full in form, is not itself an indictment ; though
there may be particular usages in some States making it oth-
erwise. Lord Coke says, that “every indictment is a present-
ment, but every presentment is not an indictment.”? From
this view perhaps it would follow, that, when a grand jury on
their own prompting bring in a written charge against a par-
ticular person, if the charge is formal and complete in its
parts, it is to be called an indictment ; if not, a presentment.
And sometimes our grand juries make a sort of general pre-
sentment of evils and evil things, which they mention, for the
purpose of calling the attention of the public, or of the offi-
cers of the law, to them; not intending thereby even to fur-
nish instructions for any specific indictments.

§ 733. In those States wherein it is the practice for the
grand jury sometimes to bring in a specific presentment, the
course of the proceeding is better understood by the local
profession, than it can be by another who writes a general
treatise. There appear to be no two of these States in which
the usage is precisely alike. In Virginia, it seems to be the

1 Bac. Ab. Indictment; Cro. C; C. 82; 2 Hawk. P. C. ¢. 25, § 1. °
2 2 Inst. 739.
[513]
§ 734 PRACTICE. [BOOK VI.

course of things (the author wishes to be understood as not
speaking positively on any such matter of local practice) for
the prosecuting officer, on the presentment being brought in,
to draw an information upon it, and for the prisoner to be
tried on it, in connection with the presentment ;! though there
may be a trial on the presentment without any information
filed.2 In Tennessee, “the practice,” said Turley, J., “has not
been to frame a bill of indictment upon the presentment [as
in England]; but to put the prisoner upon trial on the pre-
sentment, which is in form an indictment; except that, in-
stead of being signed by the attorney-general and foreman of
the grand jury, it is signed by the grand jurors individually ;

and this practice has been recognized by our courts.” ?
§ 734. In Georgia, an indictment founded on the present-
ment of a grand jury need not be sent to them for their ac-

tion upon it.

1 Bishop v. Commonwealth, 13 Grat.
785 ; Commonwealth v. Jones, 2 Grat.
555.

2 Commonwealth v. Towles, 5 Leigh,
743 ; Commonwealth v. Maddox, 2 Va.
Cas. 19. See also as to the presentment
in Virginia, Commonwealth v. Collins,
9 Leigh, 666 ; Word v. Commonwealth,
3 Leigh, 743; Myers v. Common-
wealth, 2 Va. Cas.160. There appears
to have grown up in Virginia, under
legislative and judicial sanction, a prac-
tice which gives to the presentment an
effect greater than it has in England,
and different. In some cases of misde-
meanor, a summons may issue and the
party be tried on the presentment, with-
out indictment, and without informa-
tion filed. Or the presentment may be
made the basis of an information to be
tendered by the prosecuting officer,
when the trial will be had on the in-
formation ; and, though the present-
ment is too informal to sustain the pros-
ecution directly, it may sustain the
information, and the information sus-
tain the prosecution. See Common-
wealth v. Christian, 7 Grat. 631,

[514]

This was understood to be the English prac-
tice, which the court followed.

Therefore, if the grand jury

3 Garret v. The State, 9 Yerg. 389,
390; s. Pp. Smith v. The State, 1 Humph,
396. In another Tennessee case, the
difference between an indictment and a
presentment was stated, in connection
with some other points, by the same
learned judge, as follows: “ We hold
that twelve good and lawful men con-
stitute a legal grand inquest, and that
indictments found by them are good
though there be a thirteenth man acting.
with them who is not of record a mem-
ber of that body; but that it is not so
with presentments; and this because
bills of indictment are founded upon
proof ; presentments, upon information
of some one of the grand jury. Twelve
men may legally find a true bill, upon
proof; but, in the case of presentments,
if there be one of the jury not legally
a member of the body, the presentment
is void, because it may have been found
upon his information, which would not
be under oath.” The State v. Baker, 4
Humph. 12. And see The State v.
Love, 4 Humph. 255; Glenn v, The
State, 1 Swan, Tenn. 19.

* Nunn v. The State, 1 Kelly, 248.
CHAP. XLII. ] THE GRAND JURY, ETC. § 736

find a presentment within the period prescribed by the stat-
ute of limitations for the prosecution of an offence, yet the
indictment is not drawn and filed till the statute has fully
run, the prosecution is commenced in season, and the defend-
ant may be convicted! It was said, in one of the United
States circuit courts, to be the practice in this country for the
court to take no notice of presentments on which the prose-
cuting officer does not think proper to institute proceedings.
_And where there is a presentment, and then the attorney for
the government draws a bill of indictment which the grand
jury find a true bill, and then at a subsequent term there:is a
nol. pros. entered on the indictment, the proceeding seems to
be at an end.”

III. Some further Questions relating to the Procedure of the
Grand Jury. :

§ 735. It is competent for a grand jury to find an indict-
ment upon their own knowledge, without superadded testi-
mony; and this they “were anciently in the habit of doing.” ®
If, therefore, a witness who testifies before them commits
perjury, they may, of their own motion and knowledge, in-
dict the witness therefor.*

§ 736. When, however, the testimony of witnesses is relied
on, the grand jury ought to be satisfied only with such as is
good in law, and sufficient to establish a prima facie case.5
In England, where in one instance a grand jury had come in
and stated to the court that they had thrown out a bill

1 Brock v. The State, 22 Ga. 98. Mc-
Donald, J. said: “The presentment is
the indictment. If the offence is charg-
ed by the grand jury in the presentment,
the indictment is then found; for the
duty of that, and all other grand juries,
is at an end on that accusation, unless
it is quashed, or a nolle prosequi be en-
tered. The charge is complete, and it
is sufficient, so far as the grand inquest
is concerned, to put the accused on his
trial before the jury.” p. 100. See
also, as to the presentment in Georgia,
Hatcher v. The State, 23 Ga. 307 ; Ivey

v. The State, 23 Ga. 576; Ex parte
Chauvin, T. U. P. Charl. 14.

2 United States v. Hill, 1 Brock. 156.
And see further as to presentments,
The State v. Mitchell, 1 Bay, 267; The
State v. Cain, 1 Hawks, 352; Rex v.
Winter, 13 East, 258.

8 Reg. v. Russell, Car. & M. 247.

4 The State v. Terry, 30 Misso. 368.

5 People v. Hyler, 2 Parker C. C.
570; 1,Chit. Crim. Law, 318, 319; The
State v. Cowan, 1 Head, 280. See post,
§ 740.

[515]
§ 738 PRACTICE. [BOOK VI.

against a woman for murder, because by the testimony of all
the witnesses it appeared she was insane, Alderson, B. said to
them: “Then, gentlemen, you did wrong; you ought not to
try that question. If you are of opinion that the acts done
by her were such as, if they had been done by a person of
sound mind, would have amounted to murder, it is your duty
to find the bill; otherwise you afford no security to the pub-
lic by the confinement of the insane person,” alluding to a
statute which provided for such confinement, if insanity ap-
peared at: the arraignment, or on the trial.

§ 737. Ifthe state of the English law was such that an in-
sane person, whose presence abroad was dangerous, could not
be confined unless the members of a grand jury, disregarding
their oath to make “ true presentment,” brought in an indict-
ment against one whom they knew to be innocent, the condi-
tion of our mother land was, as it is sometimes expressed,
“unhappy.” In our own States, the laws do not create any
such necessity. And although a grand jury should not, per-
haps, require quite the same satisfactory evidence as a petit
jury, or be deemed delinquent if they do not go out of their
way to find special defences for prisoners who are prima facie
guilty, plainly if a defence, however special, appears before
them, and they are fully satisfied of its sufficiency in matter
of proof and of law, they do not “ present all things truly”
unless they ignore the bill .of indictment.?

§ 738. Though the grand jury sit in a room separate from
the judge, they still constitute a part of the court, and are un-
der the judicial control.? Thus, for instance, a grand juror
may be fined for drunkenness, as for a contempt of court, and
may be discharged from the panel.* And a subpoena for a
witness directs him to appear, not before the grand jury, but
before the court to give evidence to the grand jury.® Ac-
cordingly the witnesses are sworn in what is called open

1 Reg. v. Hodges, 8 Car.& P.195. 317,318, and the books there referred
2 The matter of this section, how- to.
ever, is such as is a little uncertain in 8 The State v. Cowan, 1 Head, 280.
the authorities, and the reader will 4 In re Ellis, Hemp. 10.
do well to consult 1 Chit. Crim. Law, 5 The State v. Butler, 8 Yerg. 83.

[516]
CHAP. XLII. ] THE GRAND JURY, ETC. § 740

court, though not necessarily in the actual presence of the
judge ;* and if, by reason of some informality, the session or
term of the court has lapsed, the oath is a nullity, though ad-
ministered by the proper officer of the court.2 In Connecti-
cut, however, and perhaps in some of the other States, con-
trary to the English and general American practice, the wit-
nesses may be sworn in the grand jury room, by a magistrate,
instead of in open court. The practice, it was said in Con-
necticut, has grown up under the sanction of the tribunals,
and has become a part of the common law of the State.?

§ 739. We have already seen,‘ in some measure, how the
witness is to be dealt with by the grand jury or the judge, if
he refuses properly to conduct himself or to give testimony
before the grand jury.5 The practice, in a case of this sort,
is not quite uniform in the States; and it is deemed best to
drop here the discussion of this class of questions.

IV. How to take advantage of Errors in the Doings of the
Grand Jury.

§ 740. We come now to a class of questions which are not
surpassed by any others in point of practical difficulty. The
authorities appear, at the first impression, to be almost as
conflicting as the cases are numerous; and, when we seek to
reconcile or to choose between them by a recurrence to the
principles of the law, we find it difficult to say, that, in a mat-
ter of mere practice, principle points in one direction rather
than in another. There is one principle, however, which will
help us in the outset ; namely, that, where a wrong has been
done, the party who has suffered from it should be permitted
to find, in some way, redress; though, if the law lays down
for him one path to the remedy, it is under no obligation to
provide him more. Yet there are sometimes practical obsta-
cles lying even in the one path. Thus, though the indictment

1 Jetton v. The State, Meigs, 192; 5 See also, ex parte Rowe, 7 Cal.

United States v. Reed, 2 Blatch. 435, 175, 181; The State v. Parrish, 8
2 Middlesex Special Commission, 6 Humph. 80; The State v. Blocker, 14

Car. & P. 90. Ala. 450; Deshazo v. The State, 4
8 The State v. Fasset, 16 Conn. 457. Humph. 275; Doebler v. The State, 1
* Crim. Law, I. § 186 ; II. § 259. Swan. Tenn. 473.

VOL. I. 44 [517]
§ T41 PRACTICE. [BOOK VI.
should, as we have seen, be found on proper and legal testi-
mony; yet the fact that one of several witnesses who ap-
peared before the grand jury was incompetent, is not suffi-
cient to sustain a plea in abatement to it; since it cannot be
shown what weight, if any, the testimony of this one witness
had in the minds of the grand jury.? And it has even been
held generally, that the court cannot in any way look into
the question whether or not the finding of the grand jury was
founded on sufficient proof, or inquire into the mode in which
they examined the witnesses, for the purpose of invalidating the
indictment.’ So it is not permissible to show by evidence, that
the offence for which the prisoner is being tried, is not in fact
the same to which the evidence before the grand jury pointed.*

§ 741. Yet, if the witnesses before the grand jury were
not duly sworn before being introduced into the grand jury
room, there appears to be authority. for holding, that this
is a defect of which the defendant may practically avail him-

self.

But we are treading, both in this section and the last,

on shadowy ground. Since the proceedings before the grand

1 Ante, § 736.

2 Bloomer v. The State, 3 Sneed, 66.

8 United States ». Reed, 2 Blatch.
435 ; The State v. Boyd, 2 Hill, S. C.
* 288; Turk v. The State, 7 Ohio, pt. 2,
240; The State v. Burlingham, 15
Maine, 104; The State v. Dayton, 3
Zab. 49. “ But conceding,” said Green,
C. J. in the last cited case, “that the prop-
Osition is fully establlshed that there
was no legal and competent evidence
before the grand jury, does that afford
the subject-matter to sustain either a
motion to quash or a plea in abatement ?
Weare clearly of opinion, that, in this
State, at least, it does not. If the po-
sition be sound, that every indictment
not found upon the production of legal
and competent evidence before the grand
jury is essentially vicious, it follows
that, in. all cases where the witnesses
produced. before the grand jury are from
any cause legally disqualified or incom-
petent to testify, or where any essential
link in the chain of testimony is sus-

[518]

tained by evidence not in itself legal,
the indictment cannot be sustained, al-
though there be ample competent testi-
mony, not produced before the grand
jury, to sustain the charges of the in-
dictment.” p. 56.

* Spratt v. The State, 8 Misso. 247,
And see Rocco v. The State, 37 Missis.
357, 7

5 Middlesex Special Commission, 6
Car. & P. 90. Ina reserved case, be-
fore the English judges, where it ap-
peared that the witnesses went before
the grand jury without being sworn,
the judges “ considered, under these cir-
cumstances, that, as a matter of discre-
tion, it would be better to direct appli-
cation to be made for a pardon, without
deciding upon the validity of the objec-
tion.” Rex v. Dickinson, Russ. & Ry.
401. Ina jury case before Wightman,
J. it was considered, that, where the
grand jury have found a bill, the judges.
before ‘whom the case comes to be tried
ought not to inquire whether the wit-
CHAP. XLII] THE GRAND JURY, ETC. § 743

jury are, in their nature, secret, and are required by public
policy to be kept so, as a general rule, it is plain that what
is there done must ordinarily be presumed to be done cor-
rectly ; and, as a general rule, any supposed irregularity in
those proceedings cannot be inquired into. And it is only
what might be anticipated, that there should be, as in truth
there is, a diversity of opinion, with a wide margin of doubt,
upon the question how far this general doctrine can be broken
into in particular circumstances and cases.

§ 742. The following enumeration comprehends the lead-
ing methods by which objections of the kinds we are consid-
ering may be taken: First, By Challenge to the Jury or
particular Jurors; Secondly, By the Motion to quash the
Indictment ; Thirdly, By a Plea in Abatement; Fourthly,
By raising the Question orally at the Trial under the Plea of
Not Guilty ; Fifthly, By Motion in Arrest of Judgment. Let
us look at these several methods in their order.

. §743. First. By Challenge to the Jury or particular Jurors.
‘We have seen, that there are some grounds of excuse, which’
persons summoned to be grand jurors can avail themselves of,
to avoid being compelled to serve, while yet the objections are
not open to the parties who are to be or have been indicted.
In like manner there are, relating to the summoning of the
grand jury, and the like, some statutes which are construed
to be merely directory to the officers; therefore, if their pro-
visions are not followed, the parties cannot take the objection.
Of this latter class is the provision of the Mississippi statute,
that the grand jurors shall “‘ be summoned at least five days
before the first day of the court”; “‘and,” said Handy, J.,
“although it might be true that a juror could not be com-
pelled to attend unless so summoned, yet, if he thinks proper
to attend, and serve without such notice, it constitutes no ob-
jection to the regular organization of the grand jury.”? So
the Louisiana act of 1858, making it the duty of the district
nesses were’ properly sworn previously a bill upon their own knowledge only.
to going before the grand jury ; and, it Reg v. Russell, Car. & M. 247.

seéins, that an improper mode of swear- 1 Ante, § 724.

ing them will not vitiate the indictment, 2 Johnson v. The State, 33 Missis.

as the grand jury are at liberty to find 363, 364. And see The State v. Bleek-
[519]
PRACTICE. [BOOK VI.

§ 744

judge to impanel the grand jury on the first day of the term,
is merely directory ; and, if any sufficient obstacle exists to
prevent the impanelling on the first day, it may be done on a
subsequent day.

§ 744. Returning, now, to those objections of which de-
fendants are entitled to avail themselves, we may observe
that there are two kinds of challenge, — to the array, and to
the polls. The former is taken when there is some objection
affecting the legal constitution of the entire panel ; the lat-
ter, when there is some individual disqualification attaching
to the particular juror.2. Again, it must be observed, that in-
different third persons are not entitled to interfere in judicial
proceedings, however wrongly they may be in fact conduct-
ed. Therefore, unless a person is held to answer to an in-
dictment which the particular grand jury may find, he is not
entitled to interfere in the process of its organization.® It is
not necessary, in order to justify the grand jury in finding an
indictment, that the party indicted should have been bound
vover by a justice of the peace or by a coroner; if he is under
examination, the indictment may still be found against him,
and it will be good. And it will be the same if the person
indicted is at large, and no proceedings other than those in
the grand jury room have been commenced.’ Even if the
grand jury were impanelled before the commission of the
crime, they may still find the indictment.® If, therefore, it
should appear, that, after one who was rightfully refused per-
mission to interfere in the organization of the grand jury, was
by the same grand jury indicted, such indictment could not
make the original act of refusal wrong.’ A person, there-
fore, may be regularly indicted by an incompetent grand jury,

317,

ley, 18 Misso. 428 ; The State v. Brooks,
9 Ala. 9.

1 The State v. Davis, 14 La. An. 678.

2 Vanhook v. The State, 12 Texas,
252 ; Boles v, The State, 24 Missis. 445 ;
People v. Jewett, 3 Wend. 314; The
State v. Brooks, 9 Ala. 9; Bellair »v,
The State, 6 Blackf. 104.

8 Thayer v. People, 2 Doug. Mich.
417; Hudson v. The State, 1 Blackf.

[520]

Under some circumstances, the
court will listen to an objection made
by any person present, acting as amicus
curia, Commonwealth v. Smith, 9 Mass.
107.

* People v. Hyler, 2 Parker C. C. 566;
People v. Horton, 4 Parker C. C. 222.

5 The State v. Corson, 12 Misso. 404,

8 People »v. Beatty, 14 Cal. 566.

7 Thayer v. People, supra.
CHAP. XLII]

THE GRAND JURY, ETC. § 746

or by a grand jury some one or more of whose members are
incompetent, or are disqualified to act in the particular case ;
then, unless he can take the objection in some other way
than by challenge, he cannot take it at all.

§ 745. But when the case of one charged with crime is to
come before a particular grand jury, it is the general Ameri-
can doctrine, to which there may perhaps be exceptions in
some of the States, that he may be present at its organiza-
tion, and present challenges either to the array or to the
polls! Ifthe challenge is to the polls, it must be for cause ;
there are, in these cases, no peremptory challenges allowed.?

§ 746. If we descend to look into the particular causes of
challenge, we shall find them to be too numerous, and de-
pending too much upon statutes local to particular States, to
be here minutely examined. In a Pennsylvania case it was
laid down, that a challenge may be made by reason of the
grand juror’s having expressed an opinion concerning the guilt
of the prisoner. And perhaps this may be the doctrine pre-
vailing in some other localities.* But as our grand juries
are generally drawn and impanelled to serve in all cases which
may require this sort of investigation, during a specified pe-
riod of time; there are reasons, why this kind of challenge
should not be permitted, growing out of the inconvenience it
would produce ; and why, therefore, the objection should be
restricted to the plea in abatement, or even be disallowed
altogether.®

1 Commonwealth v. Clark, 2 Browne,
323 ; Hudson v. The State, 1 Blackf. 317;
The State v. Herndon, 5 Blackf. 75;
Commonwealth v. Smith, 9 Mass. 107;
People v. Roberts, 6 Cal. 214; Maher
v. The State, 3 Minn. 444; The State
o. White, 17 Texas, 242.

2 Jones v. The State, 2 Blackf. 475.

3 Commonwealth v. Clark, supra;
ante, § 723.

4 The State v. Hinkle, 6 Iowa, 380.

5 Thus it was held in Alabama, that
the grand jurors cannot be required to
expurgate themselves of any supposed
interest or bias, at the instance of one

44 *

who is in jail, awaiting their action in
his case. The objection must be taken
by plea in abatement, when the indict-
ment is brought in. And Ormond, J.
observed as follows: “In The State v.
Hughes, 1 Ala. 655, it was held, that
the grand jury could not be asked, be-
fore they were sworn, whether they had
not formed and expressed an opinion
as to the guilt or innocence of one
whose case they would probably have
to pass upov. Such was also the opin-
ion of the court in Tucker’s case, 8 Mass,
286, In Hughes’s case, supra, this
court intimated, that challenges for

[521]
§ 747 PRACTICE.

§ 747. Secondly. By the Motion to quash the Indictment.
The principles governing the motion to quash have already
been considered in these pages. It is, perhaps, sufficient to
say, that objections of the kind which we are considering in
this chapter may under some circumstances be taken advan-
tage of by this motion. But there have been developed in
this connection no such principles as demand a special dis-

[BOOK VI.

cussion here.”

causes not operating u universal dis-
qualification, might be made after the
jury was elected and sworn. It was not
intended by this suggestion, that the
grand jury should be called at the pleas-
ure of any one, expecting to have a
charge preferred against him, and com-
pelled to expurgate themselves of any
supposed bias; but that, after indict-
ment found, the objection might be
made. This was afterwards provided
for, in the penal code, by restricting a
plea in abatement to the array of the
grand jury, or to the disqualification of
any of its members, to the term at
which the indictment is found.” The
State v. Clarissa, 11 Ala. 57,61. And
see The State v. Cameron, 2 Chand.
172; Dowling v. The State, 5 Sm. & M.
664; Boyington v. The State, 2 Port.
100. According toa New York case,
the objections that a grand juror has
formed and expressed an opinion, and
that he has evinced hostility to the pris-
oner, not only may be made before in-
dictment found, but they must be ; for
they will not, under any circumstances,
be listened toafterward. Said Savage,
C.J.: “There are causes of challenge
to grand jurors, and these may be urged
by those accused, whether in prison or
out on recognizance; and it is even said,
that a person wholly disinterested may,
as amicus curie, suggest that a grand
juror is disqualified. But such objec-
tion, to be availing, must be made pre-
vious to the juror being impanelled
and sworn. It has been urged upon
us, that the defendant, not having been

[522]

apprised of any intended proceeding
against him, not having been arrested
on a criminal charge, or required to en-
ter into recognizance to appear at the
court where the bill of indictment was
found, had not an opportunity to make
his challenge; that now is his earliest
day in court, and that he ought there-
fore to be permitted to avail himself of
this defence. Although the force of this
appeal is felt, I cannot, yield to it, and
consent, that, after an indictment found,
the party charged may urge an objection
of this kind in avoidance of the indict-
ment.” People v. Jewett, 3 Wend. 314,
321. Compare these observations with
those of Kinsey, C. J. post, § 748, note.

1 Ante, § 443-455.

2 The State, v. Lightbody, 38 Maine,
200; Commonwealth v. Chauncey, 2
Ashm. 90 ; Thayer v. People, 2 Doug.
Mich. 417; Boles v. The State, 24
Missis. 445; The State v. Newfane, 12
Vt. 422; The State v. Norton, 3 Zab.
83; The State v. Baker, 20 Misso. 338 ;
Nicholls v. The State, 2 Southard, 539 ;
Commonwealth v. Williams, 5 Grat.
702; Thompson v. The State, 9 Ga.
210; People v. Harriot, 8 Parker C. C.
112; The State », Hensley, 7 Blackf.
824; The State v. Bolt, 7 Blackf. 19;
Jillard v. Commonwealth, 2 Casey,
169 ;. The State v. Foster, 9 Texas, 65;
Pierce v. The State, 12 Texas, 210;
The State v Dayton, 3 Zab. 49;
The State v. Burlingham, 15 Maine,
104; The State v. Loving, 16 Texas,
558; Low’s case, 4 Greenl. 439. If the
defendant is held to answer before the
CHAP. XLII]

THE GRAND JURY, ETC. § 749

§ 748. Thirdly. By a Plea in Abatement. The clear and
certain method by which, according to the doctrine which
most prevails in the United States, objections of the kind we
are considering in this chapter may be taken, is the plea in
abatement. Not every objection can be practically reached
in this way ; for some objections cannot, as we have seen,! be
reached in any way. And, according to opinions more or
less patent among our judicial authorities, there are, as we
have also seen,? objections which can be taken advantage of
only after the indictment has been found, especially where
the defendant is not under recognizance or in prison.®

§ 749. If any one of the grand jury is personally incompe-
tent to serve as such, —as, for instance, if he is an alien ; *
or if he is not a freeholder or householder,® where the stat-
ute law of the State requires such a qualification, — the pres-
ence of such a disqualified person serving as a grand juror
vitiates the whole finding, and the defendant may avail him-
self of the objection by a plea in abatement.6 In this way,

grand jury is impanelled, he must chal-
lenge the panel when first made ; if not
arrested until afterward, he may chal-
lenge it when arraigned on the indict-
ment. People v. Beatty, 14 Cal. 566.

1 Ante, § 740, 741.

2 Ante, § 743-746.

8 Dixon v. The State, 3 Iowa, 416;
The State v. Hinkle, 6 Iowa, 380;
Commonwealth v. Smith, 9 Mass. 107
(as to which see Commonwealth v. Par-
ker, 2 Pick. 550) ; People v. Roberts, 6
Cal. 214; Bellair v. The State, 6 Blackf.
104. In relation to this general ques-
tion, Kinsey, C. J., sitting in the New
Jersey court, once observed: “It fre-
quently occurs that the accused is alto-
gether ignorant of the complaint when
the grand jury is called; if he should
chance to be present, he cannot be as-
sured that the prosecution will proceed ;
and, at any rate, it would be most extra-
ordinary for him to make his challenges
when there is no certainty that his case
will come under their cognizance. In
most cases of a capital nature, the per-

son charged with the offence is actually
in confinement, and has not the physi-
cal capacity to make his challenges ;
he is never brought up, and confronted
with the grand jurors; nor is he served
with a list of the persons who are to
composeit.” Therefore it was held that
the objection could be taken by plea in
abatement. The State v. Rockafellow,
1 Halst. 332, 340. Compare these ob-
servations with those of Savage, C. J.
ante, § 746, note. And see Boyington
v. The State. 2 Port. 100; Common-
wealth v. Chauncey, 2 Ashm. 90.

* Ante, § 721.

5 Ante, § 722. ;

6 Vanhook v. The State, 12 Texas,
252; Jackson v. The State, 11 Texas,
261; Stanley v. The State, 16 Texas,
557 ; The State v. Rockafellow, 1 Halst.
332; The State v. Duncan, 7 Yerg. 271 ;
Commonwealth v. Long, 2 Va. Cas.
318; The State ». Ligon, 7 Port. 167 ;
The State v. Middleton, 5 Port. 484
(where see a form of the plea, &c.) ;
Barney v. The State, 12 Sm. & M. 68;

[523]
§ 751 [BOOK VI.

PRACTICE.

also, the defendant may bring forward the objection, equally
serviceable to him, that the grand jury finding the indict-
ment consisted of too many members,} or too few,? or that it
was otherwise incompetent.? So likewise may he, according
to the doctrine prevailing in some and perhaps in most of the
States, thus avail himself of an irregularity in the summon-
ing or impanelling of the grand jury ;* or show that the grand
jurors have not been selected according to the directions of
the statute.

§ 750. If the plea alleges matter contrary to the record, it
is bad.6 So the question whether the proper oath was admin-
istered to the grand jury cannot be raised by a plea in abate-
ment; for this is matter of record, and the record is before
the court, and the court and not the jury is to judge of it.”

§ 751. Fourthly. By raising the Question orally at the
Trial on the Plea of Not Guilty. There is no authority which
distinctly shows, that any objections of the class we are consid-
ering in the present chapter can be taken at this time and in

Day v. Commonwealth, 2 Grat. 562 ;
Moore ». Commonwealth, 9 Leigh, 639 ;
The State v. Brooks, 9 Ala. 9; Martin
v. The State, 22 Texas, 214.

1 Shropshire 7. The State, 7 Eng.
190. And see ante, § 725; Miller v.
The State, 33 Missis. 356. \

2 Doyle v. The State, 17 Ohio, 222.

8 McQuillen v. The State, 8 Sm. &
M. 587 ; Rawls v. The State, 8 Sm. &
M. 599.

* Brown v. The State, 18 Ark. 96;
Green v. The State, 28 Missis, 687 ;
Rawls v. The State, 8 Sm. & M. 599;
Baker v. The State, 23 Missis, 243 ;
The State v. Greenwood, 5 Port. 474 ;
The State v. Newer, 7 Blackf. 307;
Sayle v. The State, 8 Texas, 120;
Stokes v. The State, 24 Missis.°621;
The State v. Williams, 5 Port. 180,
Hopkins, C. J. saying: “ As to the
question, whether the plaintiff in error
ought not to have made his objection
to the jurors at the time they were im-
panelled, we are of opinion, that, where
men are without authority, no person

[524]

is bound to appear and except to their
want of authority to inquire into his
conduct.” p. 135.

5 Vattier v. The State, 4 Blackf. 73 ;
Barger v. The State, 6 Blackf. 188.

® Turk vo. The State, 7 Ohio, pt. 2,
240.

7 Smith v. The State, 28 Missis. 728.
According to a Tennessee case, a vari-
ance between the Christian name of a
grand juror, as signed to a presentment,
and as given in the entry upon the record
of the impanelling of the grand jury, was
not in this particular case available as
the subject-matter of a plea in abate-
ment to the indictment. ‘“ For,” said
the court, “if, contrary to our impres-
sion, such apparent variance could be
made available as the subject-matter of
a plea in abatement, it is enough to say
that the plea in this case is not so framed
as to present that question.” The State
v. Wills, 11 Humph. 222. See also,
as to similar points, The State v.
Brooks, 9 Ala. 9; The State vy, Mahan,
12 Texas, 283.
CHAP. XLII] THE GRAND JURY, ETC. § 753

this way. Ifthe grand jury has found an indictment which
does not correspond in form of allegation with the proofs to
be adduced at the trial, it is but common learning that the
prosecution will fail by reason of the variance.’ So, accord-
ing to the more prevalent doctrine, if the grand jury adopts a
form of allegation which is admissible only under certain cir-
cumstances, and the circumstances are not such in fact as
justify it; for example, if they allege that the name of a
third person is unknown, when they would have known the
name if they had asked it of the witness ;? here, as the in-
dictment is not what the law requires to meet the case which
is proved, the defect may be taken advantage of under the
general plea of not guilty; and, in the nature of things, it
cannot be reached in any other way.

§ 752. Fifthly. By Motion in Arrest of Judgment. As a
general proposition, none of the objections which we are con-
sidering in this chapter can be taken on motion in arrest of
judgment. Thus, after a party has pleaded to an indictment,
and been convicted, it is too late to object to the constitution
of the grand jury ;? or to the disqualification of any particu-
lar member,‘ more especially if it was known before. In
these cases, therefore, the motion in arrest of judgment will
not avail.

§:753. At the same time it should be observed, that, under
the circumstances mentioned in the last section, the objection
is not presumed to appear of record; and the motion in arrest
of judgment is based only on matter of record. Suppose,
however, the record shows a defect of, the kind we are consid-
ering, it may not be safe to say that the motion in arrest will
not be entertained. In Alabama, indeed, under the provis-
ions of the Code, it was held not. to be an objection which
could be well taken in the court of appeal, after verdict, that
the record does not show any of the grand jury to have been

1 Ante, § 228 et seq. People v. Robinson, 2 Parker C. Cc

2 Ante, § 300. 235.

8 Green v. The State, 28 Missis. 687 ; + Fenalty v. The State, 7 Eng. 630 ;
People v. Griffin, 2 Barb. 427; The The State v. Motley, 7 Rich, 327.
State v. Swift, 14 La. An. 827 ; Brant- 5 The State v. Rand, 33 N. H. 216.
ley v. The State, 13 Sm. & M. 468;

[525]
§ 754 PRACTICE. [BOOK VI.

sworn, except the foreman ;! but this was an omission in the
record, not a positive matter showing the proceedings to
have been wrong. So also, in the same State, it was held
to be no ground for a motion in arrest of judgment, that the
grand jury did not affirmatively appear by the record to have.
been drawn and summoned according to law.2 But in South
Carolina it was held, quite consistently with this doctrine,
that, where the writs of venire by which the grand and petit
jurors were summoned, were made parts of the record, and
they appeared to be void for the want of a seal, the defect
would sustain a. motion in arrest of judgment. One can
hardly resist ;the conviction, however, that, assuming this
want of a seal to be everywhere held sufficient to render the
writs void, still, in some of our other. courts, the writ would be
held to be immaterial after the panel had appeared and acted
under it without objection, therefore the motion would not be
suffered to prevail.® | me

§ 754. On the whole, it is plain that vere 4 is @ ee of:
cases in which, if the objection to the grand jury appears of
record, it can be taken after verdict, on ‘motion in arrest of
judgment. An illustration of this proposition occurs where,
by: the record, the grand jury appears affirmatively not to
have been a legal body, lawfully attached to the court. How
much further this doctrine can be carried, it is impossible to
say.

1 Floyd v. The State, 30 Ala. 511.

2 The State v. Pile, 5 Ala. 7235. P.
The State v. Vahl, 20 Texas, 779.

3 As to the necessity of a seal, see

ante, § 713. In Alabama, under the '

common law of the State, a seal is not
essential to the validity of such a writ.
Maher v. The State, 1 Port. 265. In
Maine, the seal is held to be requisite ;
and it has there also been held, that an
indictment found by a grand jury sum-
moned by a venire facias bearing no
seal, will be quashed’ on motion. On
the latter point, Tenney, J. observed as
follows: .‘In the case before the court,
the constable and the officers of the town,

in causing the grand jurors to be drawn |

[526]

and notified, acted without authority,
and the men who were thus called upon
were clothed with no powers as grand
jurors, though they passed through the
process of being impanelled and sworn.
And being in attendance upon court,
without authority, nothing done subse-
quently would confer upon them the
right to act. And the omission of the
defendant to suggest to the court. their
incompetency till after the indictment
was found and filed, could not give to it
-any validity.” In this case the motion,
which prevailed, was made before plea.
The State v. Lightbody, 38 Maine, 200.
4 The State v, Harden, 2 Rich. 533 ;
Miller v, The State, 833 Missis. 356.
CHAP. XLIV.] THE PETIT JURY, ETC. § 757

CHAPTER XLIV.

THE PETIT JURY AND ITS FINDING.

Sect. 755, 756. Introduction.
757-760. The Right of Jury Trial.
761-763. Number and Constitution of the Jury.
764-791, Qualifications of the Jurors.
792-806. The Impanelling of the Jury.
807-810. Subsequent Objections to Jurors or the Panel. '
811-817. Respective Provinces of Court and Jury.
818, 819. Weight of Evidence necessary to Convict.
820-843. Deliberations of the Jury and their Verdict.

§ 755. THE subject of this chapter is one of great impor-
tance. It has given rise to multitudes of discussions; and,
upon it, the cases are too numerous to be all cited. Let us,
then, travel through this ground with as much circumspection
as our space will permit ; remembering, that, should we ex-
pand our observations to the outer verge, no single volume
would be large enough to hold them.

§ 756. We shall divide what is to be said, as follows: I.
The Right of Jury Trial; II. The Number and Constitution
of the Jury; III. The Qualifications of the Jurors ; IV. The
Impanelling of the Jury ; V. Subsequent Objections to Jurors
or the Panel; VI. The respective Provinces of Court and
Jury; VII. The Weight of Evidence necessary to convict ;
VIII. The Deliberations of the Jury and their Verdict.

I. The Right of Jury Trial.

§ 757. Among the principles of liberty which our immedi-
ate ancestors brought from the mother-land to this, there is
no one more important for the protection of the citizen in
times of civil commotion or of public passion and prejudice,
than that which secures to men accused of crime an open trial
by a jury of their peers. The Constitution of the United
States contains this guaranty in at least three different

[527]
§ 758 ‘PRACTICE. [BOOK VI.

places. In the part of the instrument which was originally
adopted, it is as follows: “ The trial of all crimes, except in
cases of impeachment, shall be by jury.” Then in the
amendments it is provided, that “‘no person shall, &c., be
deprived of life, liberty, or property, without due process of
law,” 2—Aa provision taken from Magna Charta, and compre-
hending, in its meaning, a jury trial among the rest.2 But .
to make the matter explicit beyond question, it is added: ‘In
all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial by an impartial jury,” &c.4 These
provisions, however, are construed as binding, not the States,
but the United States only ;° and as extending only to judicial
matters, such as are properly determinable by the judicial
department of the national government.®

§ 758. In probably all the States, there are provisions in
the State constitutions, corresponding more or less in their
terms to those in the Constitution of the United States, bind-

ing the States as the others do the United States.’

1 Const. U.S. art. 8, § 2.

2 Const. U. 8. amend. art. 5.

8 See 2 Inst. 49 et seq.

* Const. U. S. amend. art. 6.

5 Boring v. Williams, 17 Ala. 510 ;
Murphy v. People, 2 Cow. 815, 818 ;
Jackson v. Wood, 2 Cow. 819, note.

6 Crim. Law, I. §57. As to the con-
struction of these provisions, see also
Hollingsworth v. Duane, Wallace, 77,
106 ; Rawson v. Brown, 18 Maine, 216.

7 It will be interesting to see, in this
note, the language in which some of
these provisions are expressed, together
with the interpretations judicially put
upon them. We should, however, bear
in mind, that the constitutions of the
States are constantly being revised and
amended ; therefore the words given in
this note may not be those which are
now in force in the States referred to.
In Alabama, the words are: ‘“ The right
of trial by jury shall remain inviolate.”
Thereupon it was held, that it is compe-
tent for the legislature to create an office,
not specially provided for in the constitu-
tion, and subject the incumbentto a trial

[528]

The read-

for his defaults in the office, withont
the intervention of a jury. Said Chil-
ton, J.: “The officer is not bound to
accept the office; and, if he does so, it

is upon the terms and conditions pre-

scribed by the statute creating it. It
was early determined by this court, that
a man by accepting an office might
waive a constitutional privilege.” Bor-
ing v. Williams, 17 Ala. 510. There
is ample authority to the point, that this
provision of constitutional law is one
which parties may waive the benefit of,
if they choose. United States ». Rath-
bone, 2 Paine, 578. But, by the com-
mon law, a man is indictable for not ac-
cepting the office. Crim. Law, I. § 543,
912. Does » man waive anything by
consenting to do what he is indictable for
refusing? And see People v. Good-
win,-5 Wend. 251. Or is it the law of
Alabama that such refusal is not there
indictable? In a subsequent Alabama
case, however, this doctrine was laid
down more broadly ; namely, that the
constitutional provision does not extend
its protection to new offices, subsequent-
CHAP. XLIV.]

THE PETIT JURY, ETC.

§ 758

er will see, in the note, some of these provisions and various

points of construction.

ly created by statute. Tims v. The
State, 26 Ala. 165. In Indiana, there is
the following constitutional provision :
‘No person shall be put to answer any
criminal charge, but by presentment, in-
dictment, or impeachment.”’ And the
court, said: “ But it is evident, from
the fifth section, that the framers of the
constitution did not consider a petit
misdemeanor to be a criminal charge.”
Therefore it was held to be constitu-
tional to provide by statute, that jus-
tices of the peace might punish trivial
breaches of the peace by fine not ex-
ceeding three dollars. The State v. Mc-
Cory, 2 Blackf. 5; Clark v. Ellis, 2
Blackf. 8. And see The State v. Hail-
stock, 2 Blackf. 257 ; The State v. Led-
ford, 3 Misso. 102; Commonwealth v.
Horton, 1 Va. Cas. 835 ; Frost v. Com-
monwealth, 9 B. Monr. 362; Cowles
v. Brittain, 2 Hawks, 204; Carson v.
Commonwealth, 1 A. K. Mar. 290 ; Dal-
gleish v. Grandy, Conference, 22°; Burk-
et v. Boude, 3 Dana, 209 ; Murphy ».
People, 2 Cow. 815. And in the same
State, the constitution further providing,
“that, in all criminal cases,exeept in petit
misdemeanors, &c., the right of trial by
jury shall remain inviolate” ; this was
held to be a right available to the State,
as well as to the accused party. There-
fore, if, without a jury, the prisoner is
tried by the court, and acquitted ; the
State, having objected to this proceed-
ing, may have the result reversed, and
try him again. The State v. Mead, 4
Blackf. 809. In Illinois, the provision
is the same asin Alabama, that “ the
right of trial by jury shall remain invi-
olate’; and this’was held to secure the
right only as it existed in the State at
the time when the constitution was
adopted. Ross .v. Irving, 14 Ill. 171.
And see Work v. The State, 2 Ohio
State, 296. In Georgia, the expression
is, that “trial by jury, as heretofore
used, shall remain inviolate”; and the

VOL. I. 45

meaning has been held to be, that it
shall not be taken away in cases in
which it existed at the time of the adop-
tion of the constitution. Flint River
Steamboat v. Foster, 5 Ga. 194. But in
cases in which it did not exist before, it
need not be instituted afterward. Har-
per v. Elberton, 238 Ga. 566. And
this provision does not prevent the en-
forcement of the by-laws of a munici-
pal corporation, without a jury tri-
al. Williams v. Augusta, 4 Ga. 509;
Floyd v. Eatonton, 14 Ga. 354. So it
was held that the term “ criminal cases,”
used in a constitutional provision giv-
ing jurisdiction to a particular court, ap-
plies only to violations of the public
laws of the State, not to violations of a
city ordinance. Williams v. Augusta,
supra. Where the constitution of Mich-
igan provided, that “no person shall be
held to answer for a criminal offence,
unless on presentment of a grand jury,
except,” &c.; the keeping of a house of
ill fame was adjudged to be a “ criminal
offence” within the provision, though
made punishable by a city by-law.
Therefore where the ordinance prescrib-
ed a mode of trial different from what
was thus pointed out, it was held to be
void. Slaughter v. People, 2 Doug.
Mich. 334, note. And see Barter v.
Commonwealth, 3 Pa. 253,260; Burns
v. La Grange, 17 Texas, 415. In Ver-
mont, the constitutional provision is:
“That, in all prosecutions for criminal
offences, a person hath a right to be
heard, by himself and counsel; to de-
mand the cause and nature of his accu-
sation; to be confronted with the wit-
nesses ; to call for evidence in his favor,
and a speedy public trial by an impar-
tial jury of the country, without the
unanimous consent of which jury he
cannot be found guilty; nor can he be
compelled to give evidence against him-
self; nor can any person be justly de-
prived of his liberty, except by the laws

[529]
§ 760 [BOOK VI.

§ 759. The right which is thus secured by constitutional
guaranty must, in its nature, be subject to legislative control ;
to an extent, perhaps, not easily definable in advance. If,
for instance, a statute provides for a trial to be conducted
without a jury, then authorizes an appeal and provides for a
jury trial of the cause upon the appeal, it does not violate the
constitution by reason of its merely erecting this vestibule
through which the parties may enter to find the jury beyond.!
So, a fortiori, if the accused has the option to have his case
submitted either to the judge or the jury, and he chooses the
former, or does not demand a jury trial, he has waived his
constitutional right ; and he cannot complain either of what
was done, or of the legislative enactment under which the
court proceeded.? At the same time, a judge has no author-
ity to serve in the double capacity of court and jury, and try
a prisoner without a jury, even with the consent of the par-

PRACTICE.

ties, unless expressly authorized by statute.®
§ 760. There is an extent beyond which legislative regula-

of the land, or the judgment of his
peers.” Const. Vt. part 1, art.10. And
it has been held, that this provision is
not intended to apply to small offences,
against the police regulations of the
State, such as a violation of the prohib-
itory liquor law. The State v. Collin,
27 Vt. 318 ; In re Dougherty, 27 Vt. 325.
In Delaware, the act is constitution-
al which gives jurisdiction to a mayor’s
court to try by information, and without
a jury, the offence of assault and bat-
tery. Gray v. The State, 2 Harring. Del.
76. In North Carolina, an act giving
to the intendant of police of a town
the power to try assaults and batteries
is held to be unconstitutional. The
State v. Moss, 2 Jones, N. C. 66. The
constitution of Arkansas provides, that
“no man shall be put to answer any
criminal charge, but by presentment,
indictment, or impeachment.” And it
is held, that one accused of the criminal
offence of assault and battery is entitled
to a jury trial, The State v. Cox, 3
Eng. 436. And see, as to Ohio, Work

[530]

v. The State, 2 Ohio State, 296. As to
New York, People v. Fisher, 20 Barb.
652, 2 Parker C. C. 402.

1 The State 7. Brennan’s Liquors,
25 Conn. 278; Steuart v. Baltimore,
7 Md. 500; Emerick v. Harris, 1 Binn.
416; Biddle v. Commonwealth, 13 S.
& R. 405; Keddie ». Moore, 2 Murph.
41; Wilson v. Simonton, 1 Hawks,
482; Morford v. Barnes, 8 Yerg. 444 ;
Beers v. Beers, 4 Conn. 535. See Pol-
lard v. Holeman, 4 Bibb, 416; Head
v. Hughs, 1 A. K. Mar. 372. But see
Singleton v. Madison, 1 Bibb, 342.

* Baurose v. The State, 1 Iowa, 374;
Dailey v. The State, 4 Ohio State, 57;
Dillingham v. The State, 5 Ohio State,
280. It is not essential to the validity
of a conviction in such a case, that the
court should apprise the prisoner of his
right to have a jury, or that he should
expressly waive the right. People v.
Goodwin, 5 Wend. 251.

3 The State v. Maine, 27 Conn. 281 ;
Neales v. The State, 10 Misso. 498.
See post, § 762.
CHAP. XLIV. ] THE PETIT JURY, ETC. § 760

tions of jury trials cannot go. For instance, if there is no
jury trial allowed in the lower court, but there is a provision
for an appeal to a court which sits with a jury, there may be
such a clogging of the right of appeal as shall amount to a
substantial denial ; in which case the statute will be uncon-
stitutional.2 Whether a statute authorizing a trial in a lower
court without a jury, yet being silent in respect to an appeal,
in a case wherein the defendant is entitled by the constitu-
tion to have a jury trial, and there is a jury in the upper
court, shall be so construed in connection with the constitu-
tion and the general laws of the State as to allow of the ap-
peal, or whether the statute shall in such a case be pronounced
void as depriving the party of the right to be tried by a jury,
—jis a question which seems not to have been much con-
sidered. All laws, statutory, common, and constitutional,
ought, when possible, to be so construed together as to give
each one its proper force, and render the whole a complete
and perfected system of jurisprudence ; and, while one law
will thus be limited and qualified by another one, none should
be struck out of existence, if any reasonable interpretation
can permit it to stand. Therefore, in Maine, the court has
held, that, in a case like this, the right of appeal comes from
the mere force of the constitutional provision authorizing a
jury trial.t This decision is worthy of especial commendation,
when we consider, that, in the stream of juridical wisdom, as
it flows at the present day through fields a little verdant,
there is, where the common law prevails, mirrored somewhat
less of the wide expanse over which the eye of the more per-
fect jurisprudence loves to rove, than of the adjacent tangle
which skirts and flouts its border.

1 See Colt v. Eves, 12 Conn. 243; Woodsum, 39 Maine, 258; Saco »v.
Alfred v. The State, 37 Missis. 296 ; Wentworth, 37 Maine, 165; East River
Perry v. The State, 9 Wis. 19. Steamboat v. Foster, 5 Ga. 194; Lit-

2 See and compare McDonald ». tlefield v. Peckham, 1 R. I. 500.
Schell, 6 S.& R. 240; Greene v. Briggs, 8 See Crim. Law, I. § 176, and many
1 Curt. C. C. 311; The State v. Bren- subsequent sections.
nan’s Liquors, 25 Conn. 278; People v. 4 Johnson’s case, 1 Greenl. 230.
Carroll, 3 Parker C. C. 22 ; Saco w.

[531]
§ 762 PRACTICE. [BOOK VI.

Il. The Number and Constitution of the Jury.

§ 761. From time immemorial a jury of trials has consist-
ed of twelve men. And it is a point upon which the authori-
ties agree, that, within the meaning of our oonstitutional pro-
visions, a jury of less than twelve men is not a jury; anda
statute authorizing a jury of less, in a case in which the con-
stitution guarantees a jury trial, is void.1 And the same con-
sequence comes, it appears, if the statute authorizes them to
find a verdict upon anything short of the unanimous consent
of the twelve jurors.? In cases, however, in which the con-
stitution gives no right to a jury trial, what are called juries
consisting of less numbers than twelve men may be, and some-
times are, provided by legislation.?

§ 762. Though, as we have seen,* the consent of parties
will not authorize the judge to act in the place of the jury in
a criminal case, unless a statute gives him this jurisdiction,
yet, if for some good reason the prisoner consents to be tried
by a jury of eleven, instead of a full jury, there is authority for

1 May v. Milwaukee and Mississippi
Railroad, 3 Wis. 219; Bowles v. The
State, 5 Sneed, 860; Dixon v. Rich-
ards, 2 How. Missis. 771; Carpenter v.
The State, 4 How. Missis. 163; The
State ». Burket, 2 Mill, 155; People a.
Kennedy, 2 Parker C. C. 312; Doebler
». Commonwealth, 3 8. & R. 237 ; The
State v. Cox, 3 Eng. 436; Jackson v.
The State, 6 Blackf. 461. As to wheth-
er it is competent for legislation to make
the number of jurors more than twelve,
see Anderson v. The State, 5 Pike, 444;
Tillman 2. Ailles, 5 Sm. & M. 373;
Wolfe v. Martin, 1 How. Missis. 30 ;
Bone v. McGinley, 7 How. Missis. 671.

? Work v. The State, 2 Ohio State,
296. The judges of New Hampshire
have laid down the doctrine in very broad
terms, that the constitutional guaranty
secures to parties a jury trial according
to what was understood to be such a trial
at the time when it was adopted. And
they add: “ A jury for the trial of a
cause was a body of twelve men, de-

[532]

scribed as upright, well qualified, and
lawful men, disinterested and impartial,
not of kin, nor personal dependents of
either of the parties, having their homes
within the jurisdictional limits of the
court, drawn and selected by officers free.
from all bias in favor of or against
either party, duly impanelled under the
direction of a competent court, sworn
to render a true verdict according to the
law and the evidence given them ; who,
after hearing the parties and their evi-
dence, and receiving the instructions of
the court relative to the law involved in
the trial, and deliberating when neces-
sary apart from all extraneous influén-
ces, must return their unanimous ver-
dict upon the issue submitted to them.”
Opinion of Justices, 41 N. H. 550, 551.

5 Bryan v. The State, 4 Iowa, 349 ;
Work v. The State, supra; People v.
Fisher, 20 Barb. 652, 2 Parker ©. C.
402.

* Ante, § 759.
CHAP. XLIV.] THE PETIT JURY, ETC. § 763

saying that the verdict will not afterward be set aside for ir-
regularity, especially in a case of misdemeanor.!_ On the other
hand, this doctrine is denied in New York, where it is held that
the consent is illegal, and the verdict rendered is a nullity.?
§ 763. The methods of selecting and bringing together the
jury differ in the different States. The subject is one of con-
siderable extent when examined upon the doctrines of the
common law ; but the common law in this matter has almost
faded away. It is not best, therefore, to discuss it in these

volumes.

1 Commonwealth v. Dailey, 12 Cush.
80. Said Shaw, C. J.: ‘But it is asked,
if consent will authorize a trial before
eleven jurors, why not before ten, or
six, or one? It appears to us that it
is a good answer to say, that no depart-
ure from established forms of trial in
criminal cases can take place without
permission of the judge, and no dis-
creet judge would permit any such ex-
travagant or wide departure from these
salutary forms as the question supposes,
nor any departure unless upon some
unforeseen or urgent exigency.” p. 83.
To the same effect, see Murphy v. Com-
monwealth, 1 Met. Ky. 365; Tyra v.
Commonwealth, 2 Met. Ky. 1.

2 Cancemi v. People, 18 N. Y. 128.
Strong, J. said: “There is obviously a
wide and important distinction between
civil and criminal prosecutions, as to the
legal right of a defendant to waive a
strict substantial adherence to the es-
tablished constitutional, statutory, and
common-law mode and rules of judicial
proceedings. This distinction arises
from the great difference in the nature
of such cases, in respect to the interests
involved and the objects to be accom-
plished. .... The right of a defend-
ant in a criminal prosecution to affect,
by consent, the conduct of the case,
should be much more limited than in
civil actions. It should not be permit-
ted to extend so far as to work radical
changes in great and leading provisions

45 *

as to the organization of the tribunals,
or the mode of proceeding prescribed
by the constitution and the laws. Effect
may justly and safely be given to such
consent in many particulars; and the
law does, in respect to various matters,
regard and act upon it as valid. Ob-
jections to jurors may be waived ; the
court may be substituted for triers to,
dispose of challenges to jurors ; second-
ary in place of primary evidence may
be received ; admissions of facts are al-
lowed ; and, in similar particulars, as
well as in relation to mere formal pro-
ceedings generally, consent will render
valid what without it would be errone-
ous. A plea of guilty to any indict-
ment, whatever may be the grade of the
crime, will be received and acted upon
if it is made clearly to appear that the
nature and effect of it are understood by
the accused. In such a case the pre-
liminary investigation of a grand jury,
with the admission of the accusation in
the indictment, is supposed to be a sufii-
cient safeguard to the public interests.
But where issue is joined upon an in-
dictment, the trial must be by the tribu-
nal and in the mode which the constitu-
tion and laws provide, without any es-
sential change. The public officer pros-
ecuting for the people has no authority
to consent to such a change, nor has
the defendant.” p. 185-138. See ante,
§ 422 et seq.

[533]
§ 765 PRACTICE. [BOOK VI.

Ill. The Qualifications of the Jurors.

§ 764. The law has provided what shall be the qualifica-
tions of jurors, as carefully as what shall be their number.
These qualifications are no more changeable by statute, in
cases where there is a jury trial guaranteed by the Constitu-
tion, than is the number of jurors who shall constitute the
panel. At the same time, qualifications are not measured so
easily and exactly as numbers are counted ; wherefore there
is more difficulty attending the practical administration of
the law of the present, sub-title than of the last. Let us, con-
sequently, travel over this ground as carefully as the space
allotted to the chapter will permit.

§ 765. The several qualifications will be discussed in their
order as follows : —

First. Freedom from the Bias which comes from near Rela-
tionship. ‘If, therefore,” says Chitty,! “ the juror is related
‘to either party, within the ninth degree, though it is only by
marriage, a principal challenge will be admitted.2 So also if
he has acted as godfather to a child of the prosecutor or de-
fendant, he may be challenged for that reason.” ? In this
matter, the relationship by affinity is the same as by consan-
guinity.* But affinity ceases with the dissolution, by the
death of one of the married parties, of the marriage by which
it was created ;> therefore, where it appeared that the wife of
the juror, who was challenged, was cousin to the prisoner’s
former wife, who was dead,-leaving no offspring, he was held
to be competent, because the affinity had ceased through the
‘dissolution of the marriage by death.6 And where, in a case
of murder, a person called as a juror stated, that the sons of

1 1 Chit. Crim. Law, 541.

2 Co. Lit. 157 a; Finch, 401; Bac.
Ab. Juries, E, 5; 3 Bl. Com. 363; Burn
Just. Jurors, IV. 1; Williams Just.
Jurors, V.; Dick. Sess 186; The State
v. Perry, Busbee, 330. In this case,
Nash, C. J. illustrates the doctrine thus:
“The great-grandmother of the juror
Ray was the sister of the grandmother
of the prisoner. .... From the grand-
mother were three degrees, and from

[534]

the great-grandmother four, making in
the whole seven degrees, which was a
cause of principal challenge on the part
of the State, and the juror was proper-
ly rejected.” p. 331.

8 Co. Lit. 157 a; Burn Just. Jurors,
IV. 1.

* The State v. Perry, supra.

5 1 Bishop, Mar. & Div. § 314.

® The State ». Shaw, 3 Ire. 532.
CHAP. XLIV.] THE PETIT JURY, ETC. § 767°

his wife by a former husband were second cousins to the des
ceased, and that his wife was still living, he was held to be
competent ; the court observing, “It does not make him of
kin to the deceased.” ! But here we strike another princi-
ple, namely, that the kindred of the married parties are not
in affinity to one another. Thus the husband, during the
life of his wife, is in affinity to her relations ; but his relations
are never in affinity to hers.2 Whether the dissolution of a
marriage by divorce operates the same, in respect to the qual-
ifications of a juryman, as its dissolution by death, is a ques-
tion upon which we have probably no decisions ; but, in mat-
ter of legal principle, it is perhaps sufficiently plain that it
does. :

§ 766. Secondly. Other Civil and Social Connections.
“Thus also,” says Chitty, “if the juryman be under the
power of either party, or in his employment ; or, if he is to
receive part of a fine upon conviction ; or, if he has been
chosen arbitrator, in case of a personal injury, for one of the
parties ; or has eaten and drank at his expense ; he may be
challenged by the other.* So if there are actions depending
between the juryman and one of the parties, which imply
hostility, that will be a ground of principal challenge; though
other actions only warrant challenges to the favor.” 5 It was
laid down, in an English case, to be no cause of challenge on
behalf of the crown, that the juror is a client of the prisoner,
who is an attorney ; also, that the juror has visited the pris-
oner as a friend since he has been in prison.®

§ 767. Thirdly. A general Bias in favor of or against one
of the Parties. Says Chitty :7 “ Challenges to the polls for
favor are when, though the juror is not so evidently partial
as to amount to a principal challenge, yet there are reason-
able grounds to suspect that he will act under some undue
influence or prejudice. The cases of such a challenge are

1 Moses v. The State, 11 Humph. Just. Juries, V.; Dick. Sess. 186, 187;

232. Tidd, 5th ed. 846.
2 1 Bishop Mar. & Div. § 314, 5 Co. Lit. 157; Dick. Sess: 187.
8 1 Chit. Crim. Law, 541, 542. 6 Reg. v. Beach, 9 Car. & P. 499,

4 Co. Lit. 157; Bac. Ab. Juries, E, 7 1 Chit. Crim. Law, 544,
5 ; Burn Just. Jurors, TV. 1; Williams 8 Co. Lit. 1576; Bac. Ab. Juries, E,

[535]
§ 768 PRACTICE. [BOOK VL

manifestly numerous, and dependent on a variety of circum-
stances; for the question to be tried is, whether the juryman
is altogether indifferent as he stands unsworn ;1 because he
may be, even unconsciously to himself, swayed to one side,
and indulge his own feelings, when he thinks he is influenced
entirely by the weight of evidence.” 2

§ 768. A little explanation of this challenge to the favor,
as the matter stands. in the American law, may be desirable
here. But let us first add what Chitty further says of it in
this place: “ And as the writ of venire directs those to be re-
turned by whom the truth may be best known, it excludes .
all who are apparently partial, without any trial, as not falling
within its qualifications ; but, where there is a doubt, or sus-
picion, it implies that it shall be investigated by a trial.2 Of
the latter description is the case where the party and the ju-
ryman are fellow servants ; where the latter has been enter-
tained in the former’s house ; or where he has been appoint-
ed arbitrator, by both the parties, to terminate their differ-
ences.”* Now, the difference between the challenge to the
favor, and for principal cause, seems to be, that, where there
is an existing matter which the law sets down as a necessary
disqualification, the challenging party may bring this forward
in the way of a challenge for principal cause ; but, if the mat-
ter may or may not disqualify according as it operated in one
way or another upon the juror’s mind, the challenge is to the
favor. Or, to use the words of Lord Coke, challenging to the
favor is “when either party cannot take any principal chal-
lenge, but showeth cause of favor, which must be left to the
conscience and discretion of the triers, upon hearing their evi-
dence, to find him favorable or not favorable. But yet,” he
adds, “ some of them come nearer to a principal challenge
than other.”° Now, it-is plain that the line which sepa-
rates the challenge for principal cause, and the challenge to
5; Williams Just. Juries, V.; Dick. % Id. Ibid.
Sess. 188. * Co. Lit, 157 ; Bac. Ab. ‘Juries, E,

1 Co. Lit. 1576; Bac. Ab. Juries, E, 5 ; Burn Just. Jurors, 1V.1; Williams
5; Williams Just. Juries, V.; Dick. Just. Juries, V.

Sess. 188. 5 Co. Lit. 157 b.
2 Td. Ibid.

[536]
CHAP. XLIV.] THE PETIT JURY, ETC. § 769

the favor, must be either very artificial, or very uncertain.
In this country, therefore, the distinction has not been much
regarded: in some of our States, it is believed, there have
never been triers; but all challenges, of both kinds, have been
decided by the judge; and, in various States, where it was not
so at first, it has become so by force of statutes: so that,
though the American law is not quite uniform, it is the more
general course in this country for the judge to hear all objec-
tions which are made against jurors, and decide them him-
self, without considering whether they are objections in the
nature of challenge for principal cause, or challenge to the
favor. Still, this course of practice, and the somewhat al-
tered form of language, cannot change the law; but what-
ever would disqualify a juror when the old terms and proced-
ure were employed, must still remain a disqualification, irre-
pealable by legislation, wherever the constitutional provision
securing a jury trial prevails.

§ 769. Fourthly. That the Juror has a pecuniary Interest
in the Result of the Cause. “It hath been allowed a good
cause of challenge on the part of the prisoner,”’ says Hawkins,
“that the juror hath a claim to the forfeiture which shall be
caused by the party’s attainder or conviction.”? Therefore,
in Maine, where the statute against malicious mischief made
the guilty party liable to the party injured, for three times
the value of the property destroyed ; it was held, that, on the
trial of an indictment against one for secreting a book of town
records, an inhabitant of the town was not a competent juror.’
Yet in Vermont it was held, on the trial of a criminal com-
plaint before a justice of the peace, that an inhabitant of the
town to which the penalty will accrue, is a competent juror.*

1 Perhaps some light on this subject
may be gathered from the following
cases : People v. Bodine, 1 Denio, 281;
People v. Mather, 4 Wend. 229 ; Peo-
ple ». Rathbun, 21 Wend. 509 ; People
v. Honeyman, 3 Denio, 121; Shoeffler
v. The State, 3 Wis, 823; Stout v.
People, 4 Parker C. C. 71; Williams v.
The State, 3 Kelly, 453.

29 Hawk. P. C. & 43, § 28. See

Commonwealth ov. Eagan, 4 Gray,
18,

8 The State v. Williams, 30 Maine,
484.

4 Middletown v. Ames, 7 Vt. 166,
169. Ina Massachusetts case, the pro-
vision of the Revised Statutes, that,
“in indictments and penal actions for
the recovery of any sum of money or
other thing forfeited, it shall not be a

[537]
§ 771

§ 770. Fifthly. Bias in the Juror’s mind on the Question
whether or not the Prisoner is Guilty. This is a matter which
more often than any other comes before our American courts.
Hawkins states the disqualification thus: “That he hath de-
clared his opinion beforehand, that the party is guilty, or will
be hanged, or the like.” He adds, however, “ Yet it hath
been adjudged, that, if it shall appear that the juror made
such declaration from his knowledge of the cause, and not
out of any ill will to the party, it is no cause of challenge.” ?
For this qualifying proposition he refers to some very ancient
law, reaching back to the time when the jurors were taken
from among those who were supposed to have witnessed the
transaction ; therefore, should the juror merely state the facts
which he had seen, he could not be set aside, though the
statément should cover the matter of the defendant’s guilt.
At the time when our American ancestors received the com-
mon law from England, however, as well as ever since, the
jurors had ceased to be taken from among the witnesses, and
a man who was a witness would not be put upon the jury;
so that there was no scope for the application of this qualify-
ing proposition, and we have no occasion to inquire whether
it was ever sound or not.

§ 771. If, therefore, to repeat the words of Hawkins, the
juror “ hath declared his opinion beforehand that the party is
guilty, or will be hanged, or the like,” he is, according to the
doctrine accepted nearly everywhere in the United States,
and probably in every other locality where the common law
prevails, incompetent.?

PRACTICE. [BOOK VI.

cause of challenge to any juror that he

stitutional provision. Commonwealth

is liable to pay taxes in any county or
town which may be benefited by such
recovery,” was held to be no violation
of art. 29 of the Declaration of Rights,
securing to every citizen “the right to
be tried by judges as free, impartial,
and independent as the lot of humanity
will admit.”” The interest of the juror,
if it ever existed as a disqualification in
such « case, was deemed to be too mi-
nute and contingent to render its remov-
al by legislation obnoxious to the con-

[588]

v. Reed, 1 Gray, 472.

1 2 Hawk. P. C. c. 43, § 28.

2 The American cases on this subject
are almost countless. Shall I cite them ?
After some consideration I have con-
cluded to give many leading ones, in
the order of the States, alphabetically
arranged ; together with some specific
statements of points adjudged : —

Alabama. It is good cause of chal-
lenge to a juror that he has formed and
expressed an opinion of the innocence
CHAP. XLIV.]

THE PETIT JURY, ETC.

§ 772

§ 772. Upon the doctrine stated in the last section, the

reader who consults the note

or guilt of a prisoner, from conversa-
tions held with jurors who had tried
the case on a previous occasion. Ned
v. The State, 7 Port. 187. According
to the doctrine as stated by Hawkins,
there is no limitation growing out of
the particular reasons which induced
the juror to form and announce his
opinion. But there seems to have been,
in Alabama, a legislative attempt slight-
ly to qualify this common-law doctrine.
To proceed, then, with our digest of
points: Under the statute of 1831,
which provides, that, if a juror in a
capital case has formed and expressed
an opinion founded upon rumor, he
shall be sworn in chief, the opinion must
appear to have been formed upon mere
rumor, else the juror will not be deemed
competent. Where it appears that the
opinion was formed upon facts well au-
thenticated by persons in whom the ju-
ror had confidence, it is good ground
of challenge for cause. Quesenberry
v. The State, 3 Stew. & P. 308. Yet if
the opinion came merely in consequence
of common report, and the juror believes
it would have no influence in the for-
mation of his verdict should the evi-
dence be different from the report of the
facts, he is competent. At the same
time, said Taylor, J., “ it seems clear
that one who was present and saw the
transaction, or who heard it detailed
by one in whom he had confidence who
had seen it, could not be considered
the ‘impartial juror’ which the consti-
tution requires.” Still, in the present
case, the opinion resting upon mere ru-
mor, in distinction from his own sight,
or evidence which he had heard, he was
deemed competent; though, says the
report, “ the juror likewise answered to
questions put to him by the prisoner’s
counsel, that, when he heard the report,
he believed it to be true; that he still
believed it; that he had said if the re-
port was true the prisoner ought to be

thereto attached will see, that

hung; and that he still thought so if
the report was true.” The State v.
Williams, 3 Stew. 454, 465, 466. That
a juror has formed an opinion on mere
rumor, but never expressed it, is not
ground of challenge for cause. The
State v. Morea, 2 Ala. 275.

Arkansas, The Bill of Rights in this
State secures to the accused a trial by
an “impartial jury.” If, in a capital
case, a juror states on his examination
that he has formed an opinion on ru-
mor, he may then be asked if the opin-
ion was such as to bias his mind.
Should he state that he has conversed
with persons about the case, he may be
asked if such persons professed to have
any personal knowledge of it. Where
a juror admits that he has formed an
opinion as to the guilt or innocence of
the prisoner, he is incompetent; and, to
remove the disqualification, it is incum-
bent on the State, not on the prisoner,
to make it appear that the opinion was
founded on rumor, and was not such as
to bias his mind. Meyer v. The State,
19 Ark. 156.

California. Where a person offered
as a juror is charged with actual bias,
the triers are to determine the fact from
the testimony ; and any testimony which
leads to the conclusion that a bias ex-
ists in the juror’s mind, is competent.
Prejudice, being a state of mind more
frequently founded in passion than in
reason, may exist with or without cause ;
and to ask a person whether he is prej-
udiced or not against a party, and, if
the answer is affirmative, whether that
prejudice is of such a character as
would lead him to deny the party a fair
trial, is not only the simplest method of
ascertaining the state of his mind, but
is, probably, the only sure method of
fathoming his thoughts and feelings.
The law contemplates that every juror
who sits in a cause should have a mind
entirely free from all bias or prejudice,

[539]
§ 772

PRACTICE.

[BOOK VI.

the adjudications of our American tribunals are not quite
uniform in their limitations and shapings of the doctrine ;

of any kind whatever: and, if the ju-
ror is prejudiced in any manner, he is
not # fit or proper person to sit in the
trial. People v. Reyes, 5 Cal. 347.
By a statute of this State, a juror is
disqualified who has “ formed or ex-
pressed an unqualified opinion that the
prisoner is guilty or not guilty of the
offence charged.” Therefore if a juror
says, on the voir dire, he had previous-
ly, from rumor, formed an opinion that
the prisoner was guilty, and it would
require proof to change the opinion,
though he could try the cause impar-
tially, he should be excluded. “ The
fact,” said Terry, C, J. “that the juror
further said, that he could try the case
impartially, was entitled to no con-
sideration; few men will admit that
they have not sufficient regard for
truth and justice to act impartially in
any matter however much they may
fee] in regard to it, and every day’s ex-
perience teaches us that no reliance is
to be placed in such declarations.” Peo-
ple v. Gehr, 8 Cal. 359, 362. And see
People v. Cottle, 6 Cal. 227; People v.
McCauley, 1 Cal. 379 ; People v. Stone-
cifer, 6 Cal. 405; White v. Moses, 11
Cal. 68 ; People v. Williams, 6 Cal. 206.
It is not material that the juror did not
state whether his opinion was for or
against the prisoner. The courts would
not permit the juror to be questioned
on that point. People v. Williams, su-
pra. Where a juror makes a declarg-
tion before the trial, that the prisoner is
guilty and ought to be hung, he is in-
competent to sit as juror, and, if he
does, anew trial should be granted. Peo-
ple v. Plummer, 9 Cal. 298.
Connecticut. While the jury were be-
ing impanelled for the trial of an indict-
ment for murder, a person was called
as a talesman, and, being inquired of
whether he had formed any opinion as
to the prisoner’s guilt, said, taat. soon
after the prisoner’s arrest, he reat cer-

[540]

fain newspaper accounts of what pur-
ported to be his confessions. Upon read-

ing them, he was of opinion, that, if
those accounts were true, a horrid mur-

der had been committed ; but he had

formed no opinion as to the truth or fal-

sity of them ; and remarked to his fam-

ily, while reading the accounts, that the

case, on the trial, would probably turn

out to be a very different affair. He ad-

ded, that he had not any settled opinion

upon the subject, and felt that he could

render an impartial verdict. He was

held not to be disqualified, by bias, to

sit as a juror inthe cause. The State

v. Potter, 18 Conn, 166.

Delaware, An opinion, formed on
evidence given at the trial of another
party for the same murder, such as
without counteracting testimony the ju-
ror says would be conclusive against the
prisoner, is a good cause for challenge.
But it is otherwise of a mere impression
not founded on evidence, where the ju-
ror says he is not sensible of any bias
which would prejudice the defendant.
The State v. Anderson, 5 Harring. Del.
493, ,

Georgia, Where the court charged
the triers of a juror as follows : “If the
juror has, from rumor, formed but not
expressed any opinion as to the guilt or
innocence of the prisoner, you may find
him competent;” it was held that the
charge was not erroneous. Griffin v.
The State, 15 Ga. 476. On a trial for
murder, « juror is disqualified who has
been heard to say, before the trial, that
“from what he knew he would stretch
the prisoner.” Monroe ». The State, 5
Ga. 85. See also Thomas v. The State,
27 Ga. 287. Neither the formation nor
the expression of an opinion will dis-
qualify a juror, unless it be settled and
abiding. Wright v. The State, 18 Ga.
883. The question of disqualification
depends upon the nature and strength
of the opinion, and not upon its source
CHAP. XLIV.]

THE PETIT JURY, ETC.

§ 772

though, as to the main matter, there is no essential differ-

ence.

of origin. Boon v. The State, 1 Kelly,
63]. It may disqualify though founded
on hearsay. Boon v. The State, 1 Kelly,
618. Butthe mere formation of an opin-
ionyby a juror, from rumor, without hav-
ing expressed it, does not disqualify.
Hudgins v. The State, 2 Kelly, 173. If
a juror has formed andexpressed, before
trial, a decided opinion as to the guilt of
the prisoner, such juror cannot, after
verdict, show himself to have been com-
petent, by swearing that his finding was
influenced solely by the evidence in the
case. McGuffie o. The State, 17 Ga.
497. One who has formed and ex-
pressed an opinion is incompetent. Rey-
nolds v. The State, 1 Kelly, 222. The
words, “if that is so, the prisoner de-
serves to be hung,” used by a juror be-
fore trial, in reply to a statement by a
third person, do not show a fixed
opinion of guilt, which would be sufii-
cient ground for a new trial. Mercer v.
The State, 17 Ga. 146. And see Jim
v. The State, 15 Ga. 535; John v. The
State, 16 Ga. 200. When the opinion
has not been expressed, though it may
have been formed, the juror is compe-
tent. Baker v. The State, 15 Ga. 498.
So, if the opinion comes from report.
Thompson v. The State, 24 Ga. 297.
Still, if it is found by the triers that a
juror has formed and continues to enter-
tain a fixed opinion for or against the
prisoner, he is incompetent. Willis v.
The State, 12 Ga. 444. In this State,
the matter which we are considering is
considerably influenced by statutes. See,
on this point, Willis v. The State, su-
pra; Rouse v. The State, 4 Ga. 136;
Rafe v. The State, 20 Ga. 60; Boon v.
The State, 1 Kelly, 618; Mercer v. The
State, 17 Ga. 146; Mitchell v. The State,
22 Ga. 211; Pines v. The State, 21 Ga.
227 ; King v. The State, 21 Ga. 220.
Illinois. A juror who has talked with
a witness whom he believed, but who
has not formed any opinion of the pris-

VOLIL 46

But it must be observed, that the constitutional guar-

oner’s guilt or innocence, is competent.
Thomson »v. People, 24 Il].60. Where
a juror, at different times before the
trial of a prisoner for murder, said he
believed the prisoner “ would be hung,”
that he ought to be hung, that nothing
could save him, that salt could not save
him, and that there was no law to clear
him ; and subsequently went to the jail
where the prisoner was confined, and
told him he ought not to be hung, and,
if he were on the jury, he should not be
hung ; yet, afterward, when sworn on
the trial, touching his competency as a
juror, stated that he had formed no
opinion, and, no objection being made,
he was sworn on the jury and the pris-
oner convicted ; a new trial was granted
on the ground of the juror’s incompe-
tency. Sellers v. People, 3 Scam. 412.
Where, upon a trial for murder, a juror,
when first examined, stated that he had
formed and expressed an opinion from
reports, a part of which he believed ;
and, when further examined, he stated,
that the opinion was formed on the hy-
pothesis that the rumors, only a part of
which he believed, were true, that, in
fact, he had no opinion whether those
rumors were true or false, and that the
opinion which he had formed was not
of a fixed and definite character ; he was
held to be competent. Baxter v. Peo-
ple, 3 Gilman, 368, And see Noble v.
People, Breese, 29. If a juror has
made up a decided opinion respecting
the merits of the controversy, either
from personal knowledge of the facts,
from the statements of witnesses, from
the relations of the parties, or from ru-
mor, he is disqualified from trying the
case, if challenged for cause. Neely z.
People, 13 Ill. 685.

Indiana. Certain jurors, included in
the venire ata trial for murder, on ex-
amination by the court stated, that they
had heard considerable talk about the
case, and had read the newspaper ac-

[541]
§ 772

PRACTICE.

[BOOK VI.

anty of a jury trial is not, in all the States, in exact words
alike ; therefore that what would be admissible in one State

counts of it; that they were rather in-
clined to think, if what they had read
was correct, the prisoner was guilty ;
that they had never talked with any of
the witnesses, nor formed, nor expressed
an opinion, had no ill-will against the
prisoner, and could give him a fair trial,
according to the Jaw and evidence.
They were held competent to try the is-
sue. Rice v. The State, 7 Ind. 332. And
see Bradford v. The State, 15 Ind. 347 ;
McGregg v. The State, 4 Blackf. 101 ;
Romaine v. The State, 7 Ind. 63 ; Mor-
gan v. Stevenson, 6 Ind. 169. In one
case, Perkins, J. said: “The following
may be deduced from the above-cited
authorities as grounds of challenge for
cause: 1. That the juror is interested
in the pending or asimilar suit. 2. That
he does not possess the statutory qual-
ifications. 38. That he is of kin to one
of the parties. 4. Personal hostility.
5. A pending lawsuit between the juror
and the party. 6. That the juror is
master or servant, landlord or tenant,
of the opposite party, or has eaten or
drank at his expense since being sum-
moned as a juror, or has promised to
find a verdict for him. 7. That he has
formed or expressed an opinion in the
cause, is a witness in it, or has been a
juror on a former trial of it.” Flem-
ing v. The State, 11 Ind. 234, 236.
Iowa, It is good cause of challenge
toa petit juror by the State, that he had
formed an unqualified opinion, and this
whether it be for or against the prisoner;
and there is no error in refusing to al-
low the juror to say in reply to the de-
fendant’s question, whether such opin-
ion was for or against the prisoner. The
State v. Shelledy, 8 lowa, 477. Wherea
juror stated, that he had not formed an
unqualified opinion ; that, if what he had
heard should be proved upon the trial,
he had an opinion made up; but that
he thought he had no prejudice or bias
to prevent him from hearing the evi-

[542]

dence, and giving a verdict in accord-
ance with the law and the testimony ; he
was held to be competent. The State».
Sater, 8 Iowa, 420. An opinion asto the
guilt or innocence of a prisoner, formed
from rumor, is sufficient to exclude
a juror. Wau-kon-chaw-neek-kaw v.
United States, Morris, 332; Trimble
v. The State, 2 Greene, Iowa, 404 ; The
State v. Wilson, 8 Iowa, 407.

Louisiana. A mere impression, in
the mind of a juror, as to the guilt of
the accused, is not sufficient to disqual-
ify him. The State v. Ward, 14 La.
An. 673. See also The State v. Ben-
nett, 14 La. An. 651. So also, of an
opinion formed wholly from rumor,
where there is still no bias or prejudice
in the mind of the juror. The State
v. Bunger, 14 La. An. 461.

Maine. In a murder case, if a juror
has expressed an opinion as to the guilt
of the prisoner; or, it appears, if he has
even formed one, though he has not ex-
pressed it ; he should be set aside. The
State v. Jewell, 33 Maine, 583.

Massachusetts, An opinion, formed
by one called as « juror, not strong
enough to lead him to prejudge the case,
or to be likely to prevent a candid judg-
ment on hearing the evidence, does not
disqualify him to be sworn as a juror.
Commonwealth v. Webster, 5 Cush.
295. And see Commonwealth v. Gee,
6 Cush, 174. A juror having said, on
the votre dire, that he had formed an
opinion, from what he had heard, but
did not know how much he might be in-
fluenced by it, was allowed to be chal-.
lenged for cause. Commonwealth v.
Knapp, 9 Pick. 496.

Mississippi. A previous opinion,
formed on rumor, does not disqualify a
juror ; but one formed on hearing infor-
mation from a witness, either directly
or through another person, docs render
a juror incompetent. Nelms v. The
State, 13 Sm. & M. 500. And see The
CHAP. XLIV.]

might not necessarily be so in another.

THE PETIT JURY, ETC.

§ 772

The true view would

seem to be, that, since the law presumes every man to be in-

State v. Johnson, Walk. Missis. 392 ;
King v. The State, 5 How. Missis. 730.
If, upon examination, a juror is found to
have formed an opinion as to the issue
to be passed upon, he may be set aside
before either party has had the oppor-
tunity to challenge him. Marsh v. The
State, 30 Missis. 627. And see Sam 2.
‘The State, 31 Missis. 489. Where a
juror, being asked if he had formed an
opinion as to the guilt or innocence of
the prisoner, said he had ; and, after be-
ing challenged for cause by the prisoner,
said, in answer to questions by the court,
that his opinion was formed from rumor,
and his mind was as free to act upon
the testimony as if he had heard noth-
ing about the case ; it was held to have
been error for the court to require the
prisoner either to accept the juror or to
challenge peremptorily. Cotton v. The
State, 31 Missis. 504. It is ground for
a new trial, that, after a juror was sum-
moned and before trial, he said he did
not see how he could clear the defend-
ant should he be on the jury, but he
would be bound to find him guilty, —in
a case where, on the preliminary exam-
ination, he denied having formed or ex-
pressed an opinion. Cody v. The State,
3 How. Missis. 27. That a juror has
impressions as to the guilt of the pris-
oner, derived from hearing the testi-
mony in another case, is not sufficient
to disqualify him. ‘To disqualify,”
it was observed, “the juror must have
formed and expressed an opinion, or
have such acknowledged prejudice or
bias as would disable him from doing
justice, according to the evidence, be-
tween the State and the accused.” Noe
». The State, 4 How. Missis. 330.
Though no general rules of competency
can be fixed, each case depending on its
peculiar circumstances, it may be stated
generally, that a juror is incompetent
to sit in a case on which his mind is so
far prejudiced as to require evidence to

annul the opinions he has formed. Sam
v. The State, 13 Sm. & M. 189. Even
though the opinion is formed from ru-
mor, it disqualifies if evidence is re-
quired to remove it. Alfred v. The
State, 37 Missis. 296 ; Ogle v. The State,
33 Missis. 383.

Missouri. A statute in this State
makes it “‘ good cause of challenge to a
juror, that he has formed or delivered
an opinion on the issue, or any material
fact to be tried; but, if it appear that
such opinion is founded only on rumor,
and not such as to prejudice or bias the
mind of the juror, he may be sworn.”
Baldwin v. The State, 12 Misso. 223.
And see Stoner v. The State, 4 Misso.
368; The State v. Davis, 29 Misso.
391; The State v. Ross, 29 Misso. 32.

New Hampshire. Where jurors had
heard the prisoner tried upon another
indictment, before another jury, and
found guilty; and answered, upon in-
quiry, that they had formed an opinion
of his guilt upon the second indictment,
which was pending at the same time,
from the evidence they had heard on the
other trial; they were held to be in-
competent. The State v. Webster, 13
N. H. 491. And see The State v.
Pike, 20 N. H. 344,

New Jersey. A juror is not disqual-
ified from serving, in a capital case,
merely by having formed and expressed
an opinion on the prisoner’s guilt. He
must, to be disqualified, have declared
such an opinion as to imply malice
against the prisoner. The State v. Fox,
1 Dutcher, 566.

NewYork, Where a juror has ex-
pressed an opinion adverse to a party
indicted, though not from any ill will
toward him, this is a principal cause
for challenge. People v. Vermilyea, 7
Cow. 108. Though, in this State, a
mere impression as to the defendant’s
guilt does not disqualify a juror, Peo-
ple v. Honeyman, 3 Denio, 121; yet,

[543]
§ 772

PRACTICE.

[BOOK VI.

nocent until he is by judicial evidence proved in a court of

justice to be guilty, and since

if he has formed an opinion, this, of
itself, without any expression of it,
seems to be deemed a disqualification.
People v. Rathbun, 21 Wend. 509. A
challenge to a juror for principal cause
was sustained, where he had said, that
he believed the defendant was guilty,
but had no fixed opinion on the sub-
ject, and was influenced wholly by
newspaper reports. So a juror was
properly excluded on a challenge to the
favor, who had formed, though he had
not expressed, an opinion, that the de-
fendant was guilty. And such a juror
is not competent, though he declares,
that, if the circumstances on which his
opinion is founded are not supported by
proof, his opinion will be changed. And
Marcy, J. observed: “Shall a grand
juror, who has patiently listened to all
the evidence on which an indictment is
found, or one who witnessed the com-
mission of the offence, be rejected when
called as a juror to try the accused ; and
shall another be received, without excep-
tion, who has formed his opinion on idle
rumors and unauthenticated reports ?
Of those who entertain an opinion of
the guilt of the accused before his trial,
they that believe on the slightest evi-
dence, or no evidence at all, manifest,
in my judgment, a state of mind less
prepared to receive and allow a fair de-
fence than those who believe on proof
which furnishes prima facie evidence of
guilt.” People v. Mather, 4 Wend.
229, 241, 242. See also People v. Bo-
dine, 1 Denio, 281 ; Lohman v. People,
1 Comst. 379; Stout v. People, 4 Par-
ker C. C. 71, 132; Sanchez v. People,
4 Parker C. C. 535.

North Carolina. If a juror has not
definitively made up and expressed his
mind on the question at issue, he is not
liable to exception, though he has read
and heard concerning it. The State v.
Benton, 2 Dev. & Bat. 196. And see
The State v. Scott, 1 Hawks, 24; The

[544]

the burden is on the prosecut-

State v. Ellington, 7 Ire. 61 ; The State
v. Bone, 7 Jones, N. C. 121.

Ohio. The statute permits a juror to
be challenged for “‘ any cause that may
render him, at the time, an unsuitable
juror ; and the validity of such chal-
lenge shall be determined by the court.”
Therefore if the juror states, that he has
formed an opinion as to the commission
of the crime, and as to the guilt or inno-
cence of the prisoner ; yet further states,
that he does not think this opinion will
influence his verdict ; he should still be
set aside as an unsuitable juror. Fouts
v. The State, 7 Ohio State, 471. The
expression by a juror, before the trial,
of a hypothetical opinion, dependent
upon facts as to the existence of which
no opinion was expressed, is no ground
for a new trial in a capital case. Loeff-
ner v. The State, 10 Ohio State, 598.

Pennsylvania. See Commonwealth v,
Flanagan, 7 Watts & S. 415; Com-
monwealth v. Gross, 1 Ashm. 281 ;
Respublica v. Dennie, 4 Yeates, 267,

South Carolina. See The State v.
Hopkins, 1 Bay, 372; The State v.
Duestoe, 1 Bay, 377; The State v.
Sims, 2 Bailey, 29 ; The State . Crank,
2 Bailey, 66; The State v. Baldwin, 1
Tread. 289, 3 Brev. 309.

Tennessee. It is held, in this State,
to be no objection to the competency of
a juror, that he has formed an opinion
respecting the guilt of a prisoner, if it
is founded on public rumor only, and
not relied upon as true. Major ».
The State, 4 Sneed, 597; Moses v.
The State, 11 Humph. 232, 10 Humph.
456. And where the individuals offered
as jarors stated, that, from rumors
and reports in their neighborhood, they
had heard a man was killed, and the
defendant was accused of the murder,
and had attempted to make his es-
cape ; upon which, believing what they
had heard, they had formed and ex-
pressed an opinion; they were held to
CHAP. XLIV.]

THE PETIT JURY, ETC.

§ 772

ing power to make the guilt appear affirmatively by proofs
produced at the trial; if a man leaps in advance of the law,

be competent jurors. And Green, J.
explained the matter as follows: “ If a
juror have heard only the general con-
clusions of his informants, — such as,
that A. B. has stolen a horse, or that C.
D. has killed a man, — and forms and
expresses an opinion upon that, without
hearing the facts and circumstances at-
tending the homicide or the theft, his
mind is not preoccupied by the case he is
called to try, and any vague opinion he
had formed vanishes as the evidence
exhibiting the facts and circumstances
of the case is unfolded to his mind.
Nor will vague and floating rumors, of
whose origin he has no information,
and of whose authenticity he has no
just grounds of belief, — although they
put on the form of a narrative and
circumstantial detail of the facts, — pro-
duce such an impression on the juror’s
mind as to affect his impartiality.”
Payne v. The State, 8 Humph. 375,
377. At the same time, the court re-
affirmed the rule stated in a previous
case, namely, — “If it appear to the
judge, who, under our system, is the
trier of the competency of the juror,
that he has heard the circumstances of
the case, and, believing the statements
he has heard to be true, has formed,
or formed and expressed, an opinion, —
that is, has made up his mind as to
the guilt or innocence of the prisoner,
— he ought to be rejected.” McGowan
v. The State, 9 Yerg. 184, 193. See, also,
Alfred v. The State, 2 Swan, Tenn.
581; Brakefield v. The State, 1 Sneed,
215; Norfleet v. The State, 4 Sneed,
340.

Texas. See Monroe v. The State,
23 Texas, 210; Burrell v. The State,
18 Texas, 713.

Vermont. The fact of having ex-
pressed an opinion is a competent ob-
jection to a juror. The State v. God-
frey; Brayt. 170.

Virginia. One who has formed a

46 *

decided opinion as to the defendant’s
guilt, whether on the evidence or not,
is not a fit juror. And Scott, J. said:
“ Some minds are so sceptical that they
receive nothing as true, which is not
proved by plain and direct evidence, or
established upon mathematical demon-
stration; while others readily adopt
the most absurd notions, though unsup-
ported by anything like evidence, and
destitute of all foundation in reason or
the nature of things. And we not un-
frequently find opinions of the latter
class as immovable as those which are
the result of the most laborious inves-
tigation. The mind is, however, in
both cases, made up; the question is
settled; it is decided. And although
both classes of persons may say, and
believe they say truly, that they are
open to conviction, willing to hear evi-
dence and listen to reason, and either ad-
here to or abandon their opinions as
these may dictate, few would be wil-
ling to stake their lives and fortunes
on the success of an attempt to overturn
opinions, which their possessors fancy
themselves to be thus willing to aban-
don at the command of truth and jus-
tice.” Armistead v. Commonwealth,
11 Leigh, 657, 660. And see Lithgow
v. Commonwealth, 2 Va. Cas. 297;
Sprouce v. Commonwealth, 2 Va. Cas.
875 ; McCune v. Commonwealth, 2 Rob.
Va. 771 ; Heath v. Commonwealth, 1
Rob. Va. 735; Hendrick v. Common-
wealth, 5 Leigh, 707 ; Osiander v. Com-
monwealth, 3 Leigh, 780; Brown v,
Commonwealth, 2 Leigh, 769 ; Brown v.
Commonwealth, 2 Va. Cas. 516 ; Smith
v. Commonwealth, 7 Grat. 593; Poore
o. Commonwealth, 2 Va. Cas. 474;
Moran v. Commonwealth, 9 Leigh, 651 ;
Smith v. Commonwealth, 2 Va. Cas. 6.
Some of the foregoing cases show, that,
for the opinion to disqualify, it must be
a decided one. Hasty expressions of a
juror, who swears that he has formed

[545]
§ 173 PRACTICE. [BOOK VI.

and settles in his own mind the question of guilt against the
prisoner, whether by reason of what he has read or heard, or
by reason of an inner impulse which condemns before it
hears, he is not a fit person to be a juror in the cause ; for his
mind, which ought at least to be a blank on which the evi-
dence might write its conclusions, is already preoccupied. It
is vain for a man to say, or even believe, that he can judge
impartially of a matter which he has already determined.
Human nature, as developed in the average of men, does not
permit this. The juror is to hear, and then say what he be-
lieves; but, if he believes before hearing the only matter which
can lawfully affect his belief, namely, the testimony of the
witnesses in open court, he is then, in legal reason, disquali-
fied to hear and be swayed by the testimony. It is immate-
rial, therefore, whether the belief which comes not according
to the law, is derived from rumor, or from listening to state-
ments of a more reliable sort. Likewise, if the juror has not
expressed his belief, he is still unfit, though the expression of
it might render him unfit in a yet higher degree. Such is
the legal reason which should govern the question ; but, for
practical rules, the reader will consult the authorities in his
own State.

§ 778. Sixthly. The Juror having passed upon the same
Question while serving in some other Capacity. The matter to
be considered under this sixth head is closely connected with
what was brought forward under our fifth. And the reasoning
of the last section shows, that, if the juror has passed upon the
question, though he has only discharged a duty in so doing,

still, as his opinion has been

no opinion of the guilt of the prisoner,
against whom he feels no prejudice,
will not disqualify. Commonwealth v.
Hailstook, 2 Grat. 564. A new trial
ought not to be granted because one of
the jurors, before he was impanelled,
said, that, “if the prisoner killed the
man, he ought to be hanged”; such
declaration not being an opinion of the
prisoner’s guilt. Commonwealth ».
Hughes, 5 Rand. 655.

[546]

once made up, he is not a fit

Wisconsin. See Schoeffler v. The
State, 3 Wis, 823.

United States. It is a good cause
for rejecting a juror, that he does not
stand indifferent, having formed or ex-
pressed an opinion as to the prisoner’s
guilt. United States v. Wilson, Bald.
78. See also United States ». Hanway,
2 Wallace, Jr. 139; United States v.
Burr, Burr’s Trial.
GHAP. KLIV.] THE PETIT JURY, ETC. § 774

person to hear the evidence and make up a second opinion.
It is the right of a party who is to be tried by a jury, that
the first opinion formed by the jurors shall be the one which
results from the evidence produced at the trial. Thus, if a
man has served on the grand jury which indicted the prison-
er, he cannot afterward serve on the petit jury which tries
him.! Not only is this so on the principles of the original
common law, but the rule was expressly confirmed by Stat.
25 Edw. 3, stat. 5, c. 3, which provided, “that no indictor
shall be put in inquests, upon deliverance of the indictees of
felonies or trespass, if he be challenged for that same cause
by him which is so indicted.” But the mere fact that a per-
son’s name is on the grand jury list is not sufficient to ex-
clude him from the petit jury ;? he must have been of those
by whom the bill was found, and then he is incompetent. Of
course, if the prisoner does not take the objection in due time,
he may lose the benefit of it; it not usually being available,
for instance, on a motion for a new trial.’

§ 774. The reader should bear in mind, that, in the lan-
guage of Hawkins, the foregoing statute is “in affirmance of
the common law,” which is broader than the statute. Indeed
the principle, of which the statute is but an expression in one
particular, extends through the whole law of this subject.
For, adds Hawkins, “ this exception against a juror, that he
hath found an indictment against the party for the same
cause, hath been-adjudged good, not only upon the trial of
such indictment, but also upon the trial of another indictment
or action wherein the same matter is either in question or
happens to be material, though not directly in issue.”4 For
example, a case clearly not within the statute, yet within this
great principle of the common law under consideration, oc-
curred where a person who had been one of the grand jury in
the finding of another indictment against the prisoner, but
not the one on trial, was tendered as a petit juror: he was

1 Rex v. Percival, 1 Sid. 243. Dilworth ». Commonwealth, 12 Grat.
2 Rafe v. The State, 20Ga.60; Rouse 689. And see Edmondson v. Wallace,
v. The State, 4 Ga, 186. 20 Ga. 660.

8 Barlow v. The State, 2 Blackf. 114; 42 Hawk. P. C. c. 43, § 27; Willis’s
The State v. O’Driscoll, 2 Bay, 153; case, 15 Howell Str. Tr. 613, 615.

[547]
§ T76 PRACTICE. [BOOK VI.

held incompetent ; for, said the court, “ he cannot be impar-
tial.” So where there has been a mistrial of a cause, the
same person who served as a juror on the first trial cannot
serve also on the second.”

§ 775. A case coming within this principle, as well as
within the principle discussed under our fifth particular, oc-
curs where there has been a civil war; and then, on its close,
a leader in the rebellion is brought before a civil tribunal to
be tried for treason committed in the act of carrying on the
war. Then, when the case comes before the court, it is found
that the judge, the officers in attendance, the grand jurors by
whom the indictment was found, and all the men summoned
to serve as petit jurors, have already passed upon the matter,
adversely to the defendant, while serving in another capacity.
The government, in accepting the challenge of arms, has
caused all its citizens to become public enemies of the defend-
ant, and has declared against the defendant’s life. And, un-
der our institutions, where the governing power proceeds
from the people, this act of the government is but the act of
the people; and, even-if it were not so, the people have all
given it their support and their voice. There cannot, there-
fore, be raised a jury to try the defendant, unless the rules
which govern in other cases are to be dispensed with in this
case.?

§ 776. It is plain, that, as a practical question, there should
be no attempt to bring such an offender before a civil tribu-
nal; but, his real offence having consisted in acts done in
public war, if he is to be punished for those acts it should be
by the military powers, to which he was more immediately
answerable when the acts were committed. Yet since it is

1 Oates’s case, 10 Howell St. Tr. ed by particular evidence against him-

1079, 1081.

2 Edmondson v. Wallace, 20 Ga. 660.
“But it hath been adjudged to be no
good cause of challenge, that the juror
hath found others guilty on the same in-
dictment ; for the indictment is, in judg-
ment of law, several against each de-
fendant, for every one must be convict-

[548]

self.” 2 Hawk. P. C. c. 43, § 29.

8 See Crim. Law, II. § 1222 and note.

4 It does not come within the scope
of this discussion to show how the mil-
itary tribunals have jurisdiction in such
acase. Some hints in this direction
occur in Crim. Law, I. § 43-68; II.
§ 1222 and note. For a fuller eluci-
CHAP. XLIV. ]

THE PETIT JURY, ETC.

§ 776

in the power of the President to send such a case to the civil
courts, and the latter cannot decline the jurisdiction,) it be-
comes a question whether the case shall stand locked for want
of jurors, or the letter of the Constitution securing a jury

trial shall be violated.

It is not deemed best to discuss this

question here, but only to state it.

dation, see the author’s forthcoming
work on the Conflict of Jurisdiction.

1 Crim. Law, II. § 1222.

2 IT mentioned this point, in connec-
tion with some others, somewhat briefly,
in the third edition of the work on the
Criminal Law. See Crim. Law, II.
§ 1222, note. The note thus referred to
was copied, in full or in part, into many
of the newspapers ; often accompanied
by favorable comments. The President,
however, did not see fit to change, as I
had no reason to suppose and did not
suppose he would, his already formed
purpose of sending one or moreof the
leaders in the late rebellion to be tried be-
fore a civil tribunal. As matter of “states-
manship” (see Crim. Law, II. § 1224,
note, par. 3, &c.), it became important
for him to put forth such reasons for this
course as were deemed best calculated
to satisfy the unread public. For in-
stance, it is understood by all persons
who are acquainted with legal and gov-
ernmental affairs, that such questions
as whether the States have the consti-
tutional right to secede, can be deter-
mined only by the political department
of the government, and that the judici-
ary is obliged to follow where this de-
partment leads, having no jurisdiction
to pronounce any opinion on such a
question, one way or the other. See

Crim. Law, II. § 1212 and note. If

this were not so ; and now, after the late
war, for instance, the courts should pro-

President ; they would not only create
utter confusion, but overturn their own
authority. Yet this possible decision
must be contemplated, if the courts have
the jurisdiction. And to say that they
may decide the question, but must de-
cide it ina particular way, is absurd.
Therefore they have always held, that
they have no authority to decide such a
question. Considerations of statesman-
ship, however, rendered it necessary for
the President to mention in his Annual
Message of December, 1865, the follow-
ing reasons for sending leaders of the
rebellion for trial before a civil tribunal :
“Tn order that the Constitution and the
laws may be fully vindicated, the truth
clearly established and affirmed that
treason is a crime, that traitors should
be punished, and the offence made in-
famous, and, at the same time, that the
question may be judicially settled, finally
and forever, that no State of its own will
has the right to renounce its place in the
Union”; the latter being a consider-
ation of great consequence with those
who are not acquainted with legal and
governmental affairs, yet ridiculous in
the eyes of those who are. Resolutions
were introduced into the House of Rep-
resentatives sustaining these views ; and
the following is the plan stated by the
mover of them, the Hon. William Law-
rence of Ohio, for procuring a jury
trial in such a case: “Mr. Bishop de-
clares,” he says, ‘“ that a competent

nounce secession lawful, and the govern- | jury cannot be procured [if the ordinary

ment under which they sit an unjust
aggressor, and our national securities
given for illegal purposes, and the
Southern Confederacy a lawful govern-
ment, and Jefferson Davis its rightful

rules are tobe followed, Crim. Law, IT.
§ 1222, note, par. 5]; but I affirm it can.
Chief Justice Marshall, in Burr’s trial,
referring to a case where there might be
an ‘obvious impossibility of obtaining

[549]
§ TTT PRACTICE. [BOOK VI.

§ 777. Seventhly. The Bias which comes from particular
Views concerning the Law. The business of a judicial tribu-
nal is to execute the law which it finds constitutionally to ex-
ist in the country. The trial is to determine, whether or not
the defendant has violated such law. And it is no part of the
business either of the court or the jury, and especially it does
not. belong to the jury, to determine whether or not a partic-
ular law accords with abstract justice or sound policy. If,
therefore, a juror has formed and expressed the opinion, that
the statute on which an indictment is drawn, is not in conflict
with the constitution, and is in force, he is not on this ac-
count disqualified to serve ; and, when this is shown, he is
not then to be asked whether he can give due weight to, and
be fairly influenced by, the arguments of the defendant’s
counsel against the opinion thus formed and expressed.

a jury whose minds were not already
made up’ as in a great rebellion, and
speaking of the ordinary rule as to ju-
rors, declared that in such case, ‘ when
this necessity exists, the rule perhaps
must bend to it.’ And so jurors would
be competent who could impartially try
cases notwithstanding their opinions of
general guilt against conspirators. Ju-
rors generally will have no opinions as
to the particular acts of treason which
may be charged in an indictment [but
Chief Justice Marshall, whose casual
observation in the course of Burr’s trial
Mr. Lawrence just now invoked, di-
rectly adjudged, in the same case, that
a juror is incompetent if he has deliv-
ered an opinion upon the general ques-
tion of guilt, or even the general trea-
sonable intent as existing at the time
specified in the indictment, though he
has given no opinion as to the partic-
ular treasonable acts on which the in-
dictment is founded |; and abill isnow
pending, in the other end of this Cap-
itol, making jurors competent who can
‘impartially try the accused.’ The
marshal loyal, at least, under this Ad-
ministration, may, by act of Congress

[550]

of September 24, 1789, select a jury
‘from such parts of the district (the
whole State), from time to time, as
the court shall direct.’ (1 Stat. 88.)
By the act of Congress of June 17, 1862,
the court may exclude all who have
‘adhered to any rebellion,’ since jus-
tice demands that treason should not
be tried by traitors. In the whole State
of Virginia there are thousands of com-
petent jurors, men who fled from rebel-
lion and have since returned, besides
northern citizens now there.” Wash-
ington Globe of Feb. 6, 1866. This
note is necessarily written and printed
some months before the book will be
published, consequently I cannot here
say what will be the result of these
measures. Evidently, the struggles be-
tween statesmanship and our Consti-
tution have not yet ended. See also,
post, § 781, note.

1 Commonwealth v. Abbott, 13 Met.
120. The juror is not to be asked,
whether he thinks the crime set forth
ought not to be punishable by law, or
ought to receive a different punishment
from what the law prescribes. Com-
monwealth v. Buzzell, 16 Pick. 153.
CHAP. XLIV.] THE PETIT JURY, ETC. § 779

And a bias or prejudice against crime is not a ground of ob-
jection to a juror.?

§ 778. But if the juror holds the statute to be void as being
unconstitutional ; and this opinion is of such a nature that
he cannot convict, whatever the evidence may be; he is in-
competent.? In like manner, a juror is incompetent if he
thinks that, for any other reason, it is not a crime to do the
acts with which the prisoner stands charged; for this amounts
to an opinion as to the defendant’s guilt, and is a prejudging
of the cause.2 And it is the same if the juror holds such an
opinion of the law, that he cannot render a verdict of guilty
on circumstantial evidence, however strong it may be. In
like manner it has been held, in a suit for freedom, to be a
valid objection to a juror that he could not in conscience ren-
der a verdict against the claimant.®

§ 779. A very frequent illustration of the doctrine on which
the last proposition rests, occurs in capital trials, where jurors
are often found to be conscientiously opposed to capital pun-
ishment. If, in general terms, the juror does not favor the
policy of punishing men capitally, he is not for this reason
incompetent. But if he has such conscientious scruples as
will forbid his bringing in a verdict of guilty in such a case,
or trying it fairly, he must be excluded.” This matter is also
more or less regulated by statutes in the several States.

1 Williams v. The State, 3 Kelly,
453.

2 Commonwealth v. Austin, 7 Gray,
51.

3 Commonwealth v. Buzzell, 16 Pick.
153. “The Court said, that, if the ju-
ror should think it was not a crime to
destroy the convent in the manner above
mentioned, he would entertain a preju-
dice in the cause ; and the question was
asked of the juror, before he was put up-
on the panel, whether he had expressed
or formed an opinion as to the general
guilt or innocence of all concerned in

the destruction of the convent.” p. 155.”

4 Gates v. People, 14 Ill. 433.
5 Chouteau v. Pierre, 9 Misso. 3.
® Atkins v. The State, 16 Ark. 568;

People v. Stewart, 7 Cal. 140; Com-
monwealth v. Webster, 5 Cush. 295,

7 Martin v. The State, 16 Ohio, 364;
Commonwealth v. Lesher, 17S. & R.
155; White v. The State, 16 Texas,
206; Hyde v. The State, 16 Texas,
445; Burrell v. The State, 18 Texas,
713; United States v. Wilson, Bald. 78;
People v. Wilson, 3 Parker C. C. 199;
Joy v. The State, 14 Ind. 139 ; The
State v. Jewell, 33 Maine, 583; Driskill
v. The State, 7 Ind. 338; Williams v.
The State, 3 Kelly, 453; People v. Tan-
ner, 2 Cal. 257; Stalls v. The State, 28
Ala. 25 ; People v. Damon, 13 Wend.
351; Williams v. The State, 32 Missis.
389,

[551]
§ 781 PRACTICE. [BOOK VI.

§ 780. Highthly. The Juror’s Connection with the Prosecu-
tion or Defence. Perhaps it may not be easy to say, in exact
language, what connection with the prosecution or defence
will be sufficient to disqualify a juror. In general, one who
has taken an active part in the measures out of which the
crime or the prosecution has grown, is not a competent juror
on the trial of the cause. specially is this so if he is under
any pecuniary liability in regard to the matter, contingent
upon the result. In a case of doubt, the practitioner may
not unprofitably consult the adjudications here referred to in
the note.1

§ 781. Ninthly. Technical Qualifications, established by
Statutes. It is proper, and to a certain extent necessary, for
legislation to work in connection with judicial decision, for
the purification and perfecting of the jury system. The es-
sential rights are those which have been pointed out in the
foregoing sections; but, as auxiliary to the doctrines of the
unwritten law, laid down in those sections, and confirmed by
constitutional guaranty, there is sometimes added legislative
help tending to the same end.?_ Let us look at some things of

this sort.

’ Reg. v. Swain, 2 Moody & R. 112,
2 Lewin, 116; Commonwealth v. Ea-
gan, 4 Gray, 18; Fleming v. The
State, 11 Ind. 234 ; Pierson v. The State,
11 Ind. 341; The State v. Wilson, 8
Iowa, 407 ; Commonwealth v. O’Neil,
6 Gray, 343; People v. Reyes, 5 Cal.
347 ; Fletcher v. The State, 6 Humph.
249,

2 In a Mississippi case, Thacher, J.
said: “The trial by jury is by twelve
free and lawful men, who are not of kin
to either party, for the purpose of estab-
lishing, by their verdict, the truth of the
matter which is in issue between the
parties. It is called a trial by one’s
peers ; that is, by men who have that
concern for the party on trial which
naturally flows from a parity of circum-
stances common to him and his judges.
The jurors should be as impartial and
independent as the lot of humanity will

[552]

admit, and be allowed to judge upon
the matter submitted to them freely and
without fear or favor. Such is the trial
by jury, guaranteed by the constitu-
tion, and originally secured by the Mag-
na Charta of England. Any legisla-
tion, therefore, which merely points out
the mode of arriving at this object, but
does not rob it of any of its essential
ingredients, cannot be considered an in-
fringement of the right.” Dowling v.
The State, 5 Sm. & M. 664, 685. There
will always be some differences of opin-
ion as to where the line is to be run be-
tween what is protected by the consti-
tutional guaranty, and what is left open
to legislative discretion. But one prop-
osition seems to be certain; namely,
that the constitution protects defend-
ants from having put upon them as ju-
rors men who have prejudged the cause,
or have disqualified themselves by prej-
CHAP. XLIV. |

THE PETIT JURY, ETC. § 783

§ 782. Tenthly. Qualifications of Freehold, and the like.
There is perhaps some uncertainty in the authorities, wheth-
er it is necessary, at the common law, for a juror to have
any, or what, freehold interest in property in order to be
competent. Much might be said to show, that no such
qualification as being a freeholder or householder is known
under the ancient common law ; though there are English
statutes, some of which are early enough in date to be com-
mon law with us, making such qualifications necessary. We
might doubt whether this part of the English law, as it stood
at least upon the statutes when this country was settled, is,
in the absence of specific authorities, to be deemed to have
been found applicable with us. But, however this may be,
there is in some of our States legislation making such qualifi-
cations requisite,” and, in others, rendering them unnecessary.?

§ 783. Eleventhly. Non-residence in the County. This by
the statute of Westminster 2, c.31, was made an excuse from
serving, of which the juror could avail himself, though not a
cause of challenge. But in some of our States a juror may
be challenged for this cause ; though it is probable that no-
where can advantage be taken of the objection at a later stage

of the proceeding.®

udice or passion to pass upon it impar-
tially. Suppose, for instance, the course
of packing juries, which is now con-
templated at Washington, as pointed
out in a previous note (ante, § 776,
note), is adopted, and is sanctioned by
the courts, the trial by jury becomes a
mockery and a farce. In the case thus
alluded to, some of our statesmen think
there are statesmanly reasons why this
course should be pursued, and they do
not see that any injustice will be wrought
thereby. But suppose the ends of jus-
tice will in a particular instance be pro-
moted by changing the law as to the
qualifications of jurors, and giving the
right instructions to reliable marshals
who act in the selection of jurors, “ at
least under this administration”; the
whole mischief intended by the Constitu-
tion to be.prevented has been done in the

VOL. 1 47

hour when the nation was thus weighed
and found wanting; the barriers are
down, and thereis no jury trial, in its
true sense, afterward. A bad precedent, -
which will extend its influence down
through all time, is too high a price to
pay for a particular good end.

+ Rex v. Russel, 2 Show. 310; 2
Hawk. P. C. ¢. 48, § 12-24.

2 Bradford v. The State, 15 Ind. 347 ;
Byrd v. The State, 1 How. Missis. 163 ;
The State v. Bryant, 10 Yerg. 527 ;
Nelson v. The State, 10 Humph. 518 ;
Dowdy v. Commonwealth, 9 Grat. 727;
Day v. Commonwealth, 3 Grat. 629 ;
Kerby v. Commonwealth, 7 Leigh, 747 ;
Hendrick v. Commonwealth, 5 Leigh,
707.

8 Ladd v, Prentice, 14 Conn. 109.

4 2 Hawk. P. C. c. 48, § 26,

5 Anonymous, cited 1 Pick. 41; The

[553]
§ 786 PRACTICE. [BOOK VI.

§ 784, Twelfthly. Alienage. That the juror is an alien
is a good cause of challenge at the common law. But the
party, to avail himself of this objection, must ordinarily, per-
haps always, take it by challenge, and not at a later stage in
the proceeding! It has been held, that a new trial will not
be granted for this cause, even though the party did not
know the juror was an alien, until after the verdict had
been rendered. “If the objection,” said Ewing, J. ‘ goes to
the moral capacity or impartiality of the juror, or to.any mat-
ter which goes to impeach the fairness or impartiality of the
verdict, if not discovered until after verdict, it would, no

. doubt, be as good a ground for a new trial as a cause of
challenge before.” Butit was deemed that this was not such
an objection.”

§ 785. Thirteenthly. Infamy. ‘It seems,” says Hawkins,
“ that it is a good challenge of a juror that he is outlawed, or
that he hath been adjudged to any corporal punishment
whereby he becomes infamous, or that he hath been convict-
ed of treason, or felony, or perjury, or conspiracy, or of for-
gery on 5 Eliz. c. 14, or attainted in an attaint for giving a
false verdict. And it hath been holden, that such exceptions
are not salved by a pardon. And it was anciently holden,
that excommunication was also a good challenge. Yet it
seems, that none of the above cited challenges are principal
ones, but only to the favor, unless the record of the outlawry,
judgment, or conviction be produced, if it be a record of an-
other court, or the term, &c., be shown, if it be a record of
the same court.” 8

§ 786. Fourteenthly. Want of Mental Capacity, and the
like. This is matter requiring no special observation. An
insane person is not a competent juror; and it is the same of

State v. Brown, 5 Eng. 78; Anderson
». The State, 5 Pike, 444; People v.
Stonecifer, 6 Cal. 405; Epps v, The
State, 19 Ga, 102.

1 Rex v. Sutton, 8B. & C. 417; 8. ¢.
nom. Rex v. Despard, 2 Man. & R.
406; Schumaker v. The State, 5 Wis.
824; Hollingsworth v. Duane, J. B.
Wallace, 147 ; Judson v. Eslava, Minor,

[554]

2; The State v. Quarrel, 2 Bay, 150 ;
Seal x. The State, 13 Sm. & M. 286.

2 Presbury v. Commonwealth, 9 Da-
na, 203. To the like effect, see Hol-
lingsworth v. Duane, supra; The State
v. Nolan, 13 Lua. An. 276,

3 2 Hawk. P. ©. v.43, § 25.

* The State v. Scott, 1 Hawks, 24.
CHAP. XLIV.]

THE PETIT JURY, ETC. § 788

any one who is drunk.! These illustrations will serve for all
the rest.?

§ 787. Fifteenthly. Matters of Excuse to be availed of only
by the Jurors personally. “I take it to be agreed,” says
Hawkins, “ that, notwithstanding the statute of Westminster
2, c. 38, be express, ‘ that neither old men above the age of
seventy years, nor persons perpetually sick, nor those who are
infirm at the time of their summons, nor those who do not
reside in. the county, shall be put in juries, or in the lesser
assizes’; and that therefore such persons may sue out a writ
of privilege for their discharge, grounded on this statute ;
yet, if they be actually returned and appear, they can neither
be challenged by the party, nor excuse themselves from not
serving, if there be not enough without them.’’® So it is
held in Illinois, that a person over the statutory period of
sixty years of age is competent to sit as a juror if he consents;
for his age is not his disqualification but his exemption. And
there are, besides statutory excuses, various others which the
judge, in the exercise of a sound discretion, will accept when
presented by the juror applying to be released from service.®

§ 788. Sixteenthly. The Jury when the Defendant is a

Foreigner.

1 Thomas v. The State, 27 Ga. 287.

2 The court may excuse a juror for
deafness, without the prisoner’s consent.
Jesse v. The State, 20 Ga. 156, 164.
In one case, the court granted the pris-
oner a new trial, Reese, J. observing :
“Upon the whole case, we think the pris-
oner is entitled to a new trial, not on the
ground that the juror may have been
under the influence of ardent spirits, as
stated by one of the witnesses, when he
first entered the jury box; or that he
took a draught of ardent spirits on the
morning the verdict was rendered ; nor
on the ground of the slight separation
of the jury, which became necessary
when the physician visited the juror,
when we think it is shown nothing im-
proper took place ; but upon the ground ”
that it is probable, that, during the in-

When this country was settled, Stat. 28 Edw. 3,
c. 18, § 2, was in force in England.

It provides, “that, in all

vestigation of the cause in court, and
the deliberations of the jury upon their
verdict, the juror in question was not
in a state of mental and bodily health
enabling him to perform his duties in-
telligibly ; and that this fact was un-
known to the court, to the counsel on
both sides, and to the prisoner, until
after the verdict.” Hogshead v. The
State, 6 Humph. 59, 60.

3'9 Hawk. P. C. c. 43, § 26.

* Davis v. People, 19 Ill. 74,
Thomas v. The State, 27 Ga. 287.

5 Commonwealth v. Hayden, 4 Gray,
18 ; Stewart v. The State, 1 Ohio State,
66; The State v. Craton, 6 Ire. 164;
The State v. Ingraham, Cheves, 78;
Montague v. Commonwealth, 10 Grat.
767; The State v. Marshall, 8 Ala.

302,
[555]

See
§ 790 PRACTICE. [BOOK V1

manner of inquests and proofs which be to be taken or made
amongst aliens and denizens, be they merchants or other, as
well before the mayor of the staple as before any other jus-
tices or ministers, although the king be party, the one half of
the inquest or proof shall be denizens, and the other half of
aliens, if so many aliens and foreigners be in the town or
place where such inquest or proof is to be taken, that be not
parties nor with the parties in contracts, pleas, or other quar-
rels, whereof such inquests or proofs ought to be taken. And
if there be not so many aliens, then shall there be put in such
inquests or proofs, as many aliens as shall be found in the
same towns or places, which be not thereto parties, nor with
the parties, as afore is said, and the remnant of denizens,
which be good men, and not suspicious to the one party nor
to the other.” ! ;

§ 789. The above statute did not apply to the grand jury,
but only to the petit jury. And as to trials for treason, it
was repealed by Stat. 1 & 2 Phil. & M. c. 10, § 7, which pro-
vided, “that all trials hereafter to be had, awarded, or made
for any treason, shall be had and used, only according to the
due order and course of the common laws of this realm, and
not otherwise.” 2

§ 790. “It seems to be settled,” says Hawkins, “ that no
alien, whether he be plaintiff or defendant, can take advan-
tage of the statute, unless he pray it in time ; and that, if he
have neglected to pray it before the return of a common ve-
nire, he can neither except to such venire, nor pray a tales or
other process de medietate lingua..... Some of the prece-
dents for the award of a venire of a jury of half denizens and
half aliens, in pursuance of 28 Edw. 3, mention, that the aliens
shall be of the same country whereof the party alleges him-
self; and others direct’ generally, that one half of the jury
shall be aliens, without specifying any country in particular.
And this form seems most agreeable to the statute, which

1 As to the history of this matter,see hold qualification in the juror should
Forsyth Hist. Trial by Jury, 228. By not apply in these cases of foreigners.
Stat. 8 Hen. 6, c. 29, it wasdeclared,- 2 2 Hawk. P. C.c. 43, § 36, 37.
that the statute which required a free-

[556]
CHAP. XLIV.] THE PETIT JURY, ETC. § 798

speaks of aliens in general; and it seems to be confirmed both
by late practice, and the greater number of authorities.” 4

§ 791. This provision for a jury de medietate lingua, as it
is termed, has been held in some of our States to have been
accepted as a part of our unwritten law; and, in some oth-
ers, legislation has reached the same end.? But in other
States it has been deemed not to have been accepted from the
mother country ;° while the current of legislation has thus
far been against the adoption of its provisions. Generally,
with us, therefore, aliens are tried in the same manner as
citizens.

IV. The Impanelling of the Jury.

§ 792. The proceedings by which juries are impanelled are
too variant in the different States to render any full discussion
of them advisable. And we-have so generally, in this coun-
try, departed from the common-law methods as to leave it
unnecessary, in a work like this, to treat of them at large.
Yet there are some leading points and principles which de-
mand explanation here.

§ 793. First. The Waiver of the Right to object to the Ju-
ror. If parties choose to have their cause tried by prejudiced
or otherwise incompetent jurors, who are tendered to them
according to the forms of law, they can do so; and, if they
know of the cause of challenge, and do not take it at the
proper time while the jury is being impanelled, they cannot
avail themselves of the defect afterward.* But where the de-
fect was unknown at the time, the courts will permit the par-
ty injured by it, to take advantage of it afterward, in some
circumstances, and to an extent which no general statement
can define.’

1 2 Hawk. P. C.c. 48, § 40, 42. 4 People v. Stonecifer, 6 Cal. 405 ;

2 Respublica v. Mesca, 1 Dall.73; Van Blaicum ». People, 16 Ill. 364 ;
Richards v. Commonwealth, 11 Leigh, The State v. Hascall, 6 N. H. 352;
690; Brown 2». Commonwealth, 11 Booby v. The State, 4 Yerg. 111; Com-
Leigh, 711; Peoplev. McLean,2 Johns. monwealth v. Norfolk, 5 Mass. 435 ;
381. ‘ Lisle v. The State, 6 Misso. 426 ;

3 The State v Antonio, 4 Hawks, The State v. Ward, 2 Hawks, 443.
200. And see the cases cited in the last 5 Commonwealth v. Wade, 17 Pick.
note.

47 * [557]
§ 795 PRACTICE. [BOOK VI

§ 794. Secondly. The Party who may Challenge. Itisa
general principle, that the same right of challenge pertains to
the prisoner and to the prosecutor alike. There may, in-
deed, be reasons relating to the particular case or defect, why
the one party rather than the other should take the objection.
For example, neither would ordinarily wish to interpose where
the defect was for his advantage, and the disadvantage of the
other side.

§ 795. Thirdly. How the Defect, in a case of Challenge
for Cause, is to be shown. The most natural method is to
require the witness to declare the matter, under oath, on the
vor dire.2. But witnesses are not generally required to an-
swer questions which will tend to their disgrace ; therefore,
in England, the inquiry whether the juror has delivered an
opinion adverse to the prisoner, cannot be put to the juror
himself, but it must be shown by other evidence.? This point
has been held the same way in some of our States. But
generally in this country this class of questions is allowed to
be put, by the parties, directly to the jurors; and, in some of
our States, this doctrine is also aided by express statutes.®

395; Ogle v. The State, 33 Missis. 383 ;
Stoner v. The State, 4 Misso. 368;
The State v. Underwood, 6 Ire. 96;
The State v. Duncan, 6 Ire. 98; Com-
monwealth v. Flanagan, 7 Watts & S.
415 ; The State ». Hopkins, 1 Bay, 372;
Rex v. Hunt, 4 B.& Ald. 430; The
State v. Bunger, 14 La. An. 461; Cody v.
The State, 3 How. Missis. 27; Thomp-
son v Commonwealth, 8 Grat. 637 ;
Ward v. The State, 1 Humph. 258 ;
The State v. Morea, 2 Ala. 275; Rip-
ley v. Coolidge, Minor, 11.

1 United States v. Burr, Burr’s Trial,
Coombs Ed. 183; Romaine v. The
State, 7 Ind. 63 ; Jewell v. Common-
wealth, 10 Harris, Pa. 94; Montague
vo. Commonwealth, 10 Grat. 767.

2 Epps v. The State, 19 Ga. 102;
Commonwealth v. Knapp, 9 Pick. 496 ;
The State v. Zellers, 2 Halst. 220; Lith-
gow v. Commonwealth, 2 Va. Cas. 297.

3 Rex v. Edmonds, 4 B. & Ald. 471;

[558]

Cook’s case, 13 Howell St. Tr. 311,
337.

* Respublica ». Dennie, 4 Yeates, 267 ;
The State v. Baldwin, 1 Tread. 289,
3 Brev. 309; The State v. Sims, 2 Bai-
ley, 29; The State v. Crank, 2 Bailey,
66.

5 The State v. Godfrey, Brayt. 170 ;
The State v. Fox,1 Dutcher, 566 ; Pierce
v. The State, 13 N. H. 536; People v.
Christie, 2 Parker C. C. 579; The
State v. Schoeffler, 3 Wis. 823; The
State v. Mullen, 14 La. An. 570 ; Boon
v. The State, 1 Kelly, 618; Mercer v.
The State, 17 Ga. 146 ; Mitchell». The
State, 22 Ga. 211; Pines v. The State,
21 Ga. 227; King v. The State, 21 Ga.
220. On the impanelling of a jury, it
is irregular for counsel to put questions
to the jurors called, without interposing
any challenge; and no error can be as-
signed to the action of the court in al-
lowing jurors thus questioned, but not
CHAP. XLIV.] THE PETIT JURY, ETC.

§ 797

When this is not done, and even when it is, the court will
sometimes, in aid of the general object, and without prejudice
to other methods, call upon the jurors, collectively or singly,
to declare if they know of any impediment to their serving,
or if they are obnoxious to a particular objection which may
have been suggested. The court may also examine the ju-
rors on oath as to their qualifications.2 Other points will be
obvious to gentlemen who are acquainted with the general
rules of evidence, and the procedure in courts.

§ 796. Fourthly. Peremptory Challenge, The right of
peremptory challenge is a matter of considerable importance,
and it should be carefully examined. It is the right to have
a juror absolutely excluded from serving in the cause, at the
mere pleasure of the challenging party ; or, as Chitty expresses
it, “‘ peremptory challenges are those which are made to the
juror without assigning any reason, and which the courts are
compelled to allow.” ® This challenge may, in some circum-
stances, and in some of our States, be made on behalf of the
State,.as well as of the defendant; in other localities, it can
be made only by the defendant, and only when the indict-
ment is for a crime of the higher grade.

, § 797. By the ancient common law, “ the king might chal-
lenge peremptorily as many as he thought fit, of any jury re-
turned to try any cause in which he was a party.” * But this
was changed, in 1305, by Stat. 33 Edw. 1, stat. 4, which pro-

challenged, to be sworn to try the case.
Crippen v. People, 8 Mich. 117. In
California, the defendant may ask the
jurors if they have formed or expressed
an opinion, before challenging them for

judge desired to convict, and would as
lief swear on a spelling-book as on a
Bible, because he was a Tom Paine
man. McFadden v. Commonwealth,
11 Harris, Pa. 12. And see Beauchamp

cause. People v. Backus, 5 Cal. 275.
A juror cannot be challenged for cause
after the ceremony of administering the
oath is begun; but he may at any time
previously. The mere passing of a ju-
ror over to the court or the other par-
ty, is not an absolute waiver of the
right to challenge, if good cause is
shown afterward. It is good cause, that
the juror grossly misbehaved himself
con a former occasion, saying he had
tried to acquit every one whom the

v. The State, 6 Blackf. 299.

1 Cook’s case, supra; Respublica v.
Dennie, supra; Pierce v. The State,
supra; McCarty v. The State, 26 Mis-
sis. 299; The State v. Marshall, 8 Ala.
302.

2 Montague v. Commonwealth, 10
Grat. 767. &

3 1 Chit. Crim. Law, 534.

4 29 Hawk. P. C. c. 43, § 2. But see
United States v. Douglass, 2 Blatch.

207.
[559]
§ 799 PRACTICE. - [BOOK VI.

vided, that, in all “inquests to be taken before any of the jus-
tices, and wherein our lord the king is party, .... notwithstand-
ing it be alleged, by them that sue for the king, that the ju-
rors of those inquests, or some of them, be not indifferent for
the king, yet such inquests shall not remain untaken for that:
cause ; but, if they that sue for the king will challenge any
of those jurors, they shall assign of their challenge a cause
certain, and the truth of the same challenge shall be inquired
of according to the custom of the court.”

§ 798. In construing this statute, however, the courts leaned
to the side of the crown. For, says Hawkins, “if the king
challenge a juror before a panel is perused, it is agreed that
he need not show any cause of his challenge till the whole
panel be gone through and it appear that there will not be a
full jury without the person so cliallenged. And if the de-
fendant, in order to oblige the king to show cause, presently
challenge touts paravaile, yet it hath been adjudged that the
defendant shall be first put to show all his causes of challenge,
before the king need to show any.”’!

§ 799. The course of things is, therefore, in England and
in those States of our Union in which the English practice
prevails, for the court, on the application of the counsel for
the prosecution, when the list of jurors returned is being
called over, and the prisoner is being required to accept or
challenge each juror as he appears at the call of his name, to
direct such jurors to stand aside as are objected to on behalf
of the prosecution. The panel is thus gone through with ;
and, if a full jury is thus obtained without calling upon those
who are thus required to stand aside, the proceeding is tanta-
mount to a peremptory challenge on the part of the govern-
ment. But, ifa full jury is not thus obtained, and some of
the jurors who were called did not, as it sometimes happens,
answer to their names, then the panel is called over a second
time, omitting those whose cases have been finally disposed
of, yet including both those who did not answer and those who
were set aside at the instance of the prosecution ; and, on this

1 2 Hawk. P. C.c. 43, § 3.
[560]
CHAP. XLIV.]

THE PETIT JURY, ETC.

§ 799

second call, the government can challenge only for cause.!
And if the State challenges for cause in the first instance, the
panel may still be gone through with before the question is
tried ;? so that, if the jury becomes full before the panel is

1 Reg. v, Geach, 9 Car. & P. 499;
Rex v. Parry, 7 Car. & P. 836;
Gray’s case, T. Raym. 473, Skin. 81;
The State v. Bone, 7 Jones, N. C. 121;
United States v. Douglass, 2 Blatch.
207; Warren v. Commonwealth, 1
Wright, Pa. 45; Commonwealth v.
Addis, 1 Browne, Pa. 285; Jewell ».
Commonwealth, 10 Harris, Pa. 94 ;
United States v. Wilson, Bald. 78. A
late English case is as follows : On the
record of the trial of an indictment for
a capital felony at the assizes, entries
were made by which it appeared that
the panel of jurors returned by the
sheriff was read over in order, omitting
only the names of twelve jurors who it
was known were then in the custody of
the sheriff deliberating on their verdict
in another case. On the names being
read, several were challenged peremp-
torily for the prisoner, and several were,
on the prayer of the counsel for the
crown, ordered to “stand by,” the coun-
sel for the prisoner insisting that they
should be sworn unless the crown forth-
with assigned cause for its challenge.
When the panel had thus been read
through, nine jurors had been elected.
The name of I., the first who had been
ordered to “stand by,” was called wu
second time, and he answered. The
counsel for the crown prayed that he
might again stand by ; the counsel for
the prisoner objected. Before anything
was done on this request [“ before any
judgment was given by the court.” Lord
Campbell, C.J. p. 73.], the absent twelve
came in and gave their verdict in the
other case. The counsel for the crown
then prayed that I. be again directed to
stand by until these twelve jurors were
called. The judge so directed, and
from these a complete jury was made

up, to whom the prisoner was given in
charge. Verdict, guilty. Sentence of
death. The record, being thus made
up, was removed by writ of error into
the Queen’s Bench, where the judgment
was affirmed, and was again affirmed in
the Exchequer Chamber. Lord Camp-
bell said, the question’ depended “ upon
the right construction of the ancient stat-
ute, 4 Stat.33 Edw. 1, entitled ‘An ordi-
nance for inquests,’ which was re-enacted
by 6 Geo. 4, c. 50, § 29. An abuse had
arisen in the administration of justice,
by the crown assuming an unlimited
right of challenging jurors without as-
signing cause, whereby inquests re-
mained “untaken.” In this way the
crown could, in an arbitrary manner, on
every criminal trial, challenge so many
of the jurors returned on the panel by
the sheriff, that twelve did not remain
to make a jury; and the trial might
be indefinitely postponed... . . The
remedy was to give the party accused
a right to be tried by the jurors sum-
moned upon his arraignment, if, after
the limited number of challenges to
which he was entitled without cause as-
signed, there remained twelve jurors of
those returned upon the panel, to whose
qualification and unindifferency no spe-
cific objection to be proved by legal evi-
dence could be made..... But there
was no intention of taking away all
power of peremptory challenge from the
crown, while that power, to the num-
ber of thirty-five, was left to the pris-
oner.” Mansell v. Reg. 8 Ellis & B.
54, 70,71. To the like effect, see the
opinion of Cockburn, C. J. p. 104.

2 The State v. Craton, 6 Ire. 164 ;
The State v. Stalmaker, 2 Brev. 1;
The State v. Barrontine, 2 Nott &
McC. 553.

[561]
§ 801 PRACTICE. [BOOK VI.

exhausted, all necessity of inquiry into the causes of chal-
lengeis avoided.!_ This practice extends to all criminal cases,
including misdemeanor, as well as treason and felony.?

§ 800. The reader perceives, that, if we should reject the
statute of Edw. 1, as not being applicable in its provisions to
this country, we must then fall back upon the earlier com-
mon law, which would be less applicable. The statute, there-
fore, with its constructions, plainly became a part of our
common law.? But by force of particular statutes, or of early
local usage, in a part of the States, this practice of passing
jurors is in such States disallowed. Thus, in Georgia, it is
not authorized since the adoption of the penal code.*

§ 801. But, in compensation for the taking away of this
right to have the jurors passed, the prosecuting power has, in
some of the States, the right given it by statute to challenge
peremptorily a limited number of jurors, where the same
right is allowed to the defendant.’ Such a statute may ap-
ply as well to prosecutions which are pending at the time of
its enactment as to those which are to come after. As re-
spects trials before the courts of the United States, the follow-
ing provision was made by the Act of March 8, 1865: “ When
the offence charged be treason or a capital offence, the de-
fendant shall be entitled to twenty and the United States to
five peremptory challenges. On a trial-for any other offence
in which the right of peremptory challenge now exists, the
defendant shall be entitled to ten and the United States to
two peremptory challenges. All challenges, whether to the
array or panel or individual jurors for cause or favor, shall
be tried by the court without the aid of triers.” 7 And this

1 The State v. Arthur, 2 Dev. 217.

2 Commonwealth v. Addis, supra.

3 See the American cases cited to the
last section ; also, Waterford and White-
hall Turnpike v. People, 9 Barb. 161,
166.

* Sealy v. The State, 1 Kelly, 213;
Reynolds v. The State, 1 Kelly, 222,
And see People v. Henries, 1 Parker
C. C. 579.

5 Fouts v. The State, 8 Ohio State,

[562]

98; Mallison ov. The State, 6 Misso.
399; Wiley v. The State, 4 Blackf.
458 ; Beauchamp ». The State, 6 Blackf.:
299; Mahan v. The State, 10 Ohio,
232; Schoeffler v. The State, 3 Wis.
823 ; People v. Caniff, 2 Parker C. C.
586.

8 Walston v. Commonwealth, 16 B.
Monr. 15; Lore v. The State, 4 Ala.
173.

7 18 Stats. at Large, p. 50, c. 86, § 2.
CHAP. XLIV.]

THE PETIT JURY, ETC. § 802

kind of legislation, whereby the government obtains the right
of peremptory challenge, as well as the defendant, has been
held, in the State courts, to be constitutional.

§ 802. The right of the prisoner to challenge peremptorily
is stated by Chitty as follows: ‘“‘The number, which in all
cases of felony the prisoner was allowed by the common law
thus peremptorily to challenge, amount to thirty-five, or
one under the number of three full juries.2 This number
has, however, been altered by several legislative provisions.
Thus, by the 22 Hen. 8, c. 14, § 7, made perpetual by the 32
Hen. 8, c. 8, no person arraigned for petit treason, high trea-
son, murder, or felony, shall be permitted peremptorily to
challenge more than twenty of the jurors. And by the 33
Hen. 8, c. 28, § 3, the same restriction is extended to cases
of high treason. But as far as these statutes respect either
high or petit treason, it is agreed that they were repealed by
the 1 & 2 Phil. & M. c. 10, which, by enacting that all trials
for treason shall be carried on as at common law, has revived

1 Warren v. Commonwealth, 1
Wright, Pa. 45; Hartzell v. Com-
monwealth, 4 Wright, Pa. 462; Wals-
ton v. Commonwealth, 16 B. Monr. 15;
Cregier v. Bunton, 2 Strob. 487; Jones
v. The State, 1 Kelly, 610. In this
last cited case, Warner, J. said: “The
trial by jury contemplated by the consti-
tution is, evidently, a trial by a com-
mon-law jury of ‘twelve free and lawful
men’ of the body of the county. But itis
said, the manner of selecting the twelve
free and lawful men has been altered by
the Penal Code of 1833, and therefore
the right of trial by jury, as used in this
State at the time of the adoption of the
constitution, in 1799, has been violated.
Although we are not of the opinion it
was the intention of the framers of the
constitution to impose a restriction on
the legislature as to the manner in which
a jury of twelve free and lawful men, of
the body of the county, should be se-
lected for the trialof offences, yet it does
not appear to us that any rights of the
accused have been taken away or im-

paired, in a practical point of view, by
the provision of the penal code of 1833,
allowing the State half the number of
peremptory challenges allowed the pris-
oner.” p. 616. See ante, § 781 and
note. It is not probable the soundness
of this view will ever be doubted: yet,
on the other hand, suppose the statutes
should take away all peremptory chal-
lenges from the prisoner, and permit
them to the State to an unlimited ex-
tent; or to an extent very great, though
limited ; or, even, where they are entirely
taken away from the prisoner, to any
extent; the question presented would
be a different one. Ido not mean to
intimate how it should be decided.

2 1 Chit. Crim. Law, 534.

8 Co. Lit. 156; Bro. Ab, Challenge,
70, 74, 75, 217; 2 Hale P. C. 268; 2
Hawk. P. C. c. 43,§ 7; Com. Dig.
Challenge, C.1; Bac. Ab. E, 9; 4 BL.
Com. 354; 2 Woodes. 498 ; Burn Just.
Juries, IV. ; Williains Just. Juries, V. ;
Dick. Sess. 185.

[563]
PRACTICE. [BOOK VIL

§ 805

the original number, as far as it respects those offences ;! so
that, at the present day, in cases of high and petit treason,
the prisoner has thirty-five peremptory challenges ; in mur-
ders, and all other felonies, by the 6 Geo. 4, c. 50, § 29, twen-
ty ;2 and, in misprision of treason, the point seems to be
unsettled.?

§ 803. “The right of peremptorily challenging is admitted
only in favor of life; and, though it may be demanded even
in clergyable felonies [and in all felonies though the punish-
ment is not death‘], it can never be allowed to a defendant
accused of a mere misdemeanor.6 [Yet, according to Haw-
kins, the peremptory challenge is also allowable in misprision
of high treason,® which is a misdemeanor.] Nor can they be
allowed in any case, except upon the plea of not guilty; for no
peremptory challenges are ever admitted on the trial of col-
lateral issues.” ?

§ 804. In the United States, the number of peremptory
challenges allowable to the defendant is variously regulated
by statutes ; and the reader, upon this point, should consult

particularly the statutes and decisions of his own State.’
§ 805. The peremptory challenge must be made by the

1 Co. Lit. 156; Bro. Ab. Challenge,
217; 3 Inst. 227; Foster, 106, 107; 2
Hale P. C. 269; 2 Hawk. P. C. c. 43,
§ 8; Bac. Ab. Juries, E, 9; Burn Just.
Jurors, 1V.; Williams Just. Juries, V. ;
Dick. Sess. 185.

2 Foster, 106, 107; 4 Bl. Com. 354 ;
2 Hawk. P. C. c. 43, § 8; Bac. Ab.
Juries, E, 10; Williams Just. Juries,
V.; Dick. Sess. 185.

® See 3 Inst. 27a; 2 Hawk. P. C,
v. 48, §5; Wilkams Just. Juries, V.

* Gray v. Reg. 11 Cl. & F. 427,6
Trish Law, 482 ; Reg. v. Gray, 3 Crawf.
& Dix C. C. 238.

5 Co. Lit. 156; 2 Harg. St. Tr. 808;
4 Harg. St. Tr. 1; 4 Bl Com. 352,
note ; Burn Just. Jurors, IV.

6 2 Hawk. P. C. ¢. 43, § 5.

7 Rex v. Radcliffe, 1 W. B1.3, 6 } Fos-
ter, 40,42, 46;1 Wils. 150; 2 Hale P.
C. 267.

[564]

8 The State v. Allen, 8 Rich. 448 ;
The State v. Humphreys, 1 Tenn. 306;
Hayden v. Commonwealth, 10 B. Monr.
125 ;, Noles v. The State, 24 Ala. 672;
Waterford and Whitehall Turnpike 2.
People, 9 Barb. 161, 166; The State v.
Gainer, 2 Hayw. 140; Martin v. The
State, 16 Ohio, 364; Hooper v. The
State, 5 Yerg. 422; Montee v. Com-
monwealth, 3 J. J. Mar. 182 ; The State
v. Gayner, Conference, 305 ; Schumak-
er v. The State, 5 Wis. 324 ; The State
v. Cadwell, 1 Jones, N. C. 289. As to
trials in the United States courts, see
ante, § 801. For the matter as it stood
before the statute, see United States v.
Cottingham, 2 Blatch. 470; United
States v. Shive, Bald. 510; United
States v. Magill, 1 Wash, C. C. 463 ;
United States v. Johns, 1 Wash. C. C.
363.
CHAP. XLIV.]

THE PETIT JURY, ETC. § 806

prisoner himself in person, and it will not be allowed through
his counsel.1. Moreover, “before any juryman is brought to
the book, the prisoner by leave of the court may have the
whole panel once called over in his hearing, that he may take
notice who do and who do not appear, in order the better to
enable him to take his challenges.” ?

§ 806. In an English case it was laid down, that the chal-
lenge of a juror, either by the crown or by the prisoner, must
be before the oath is commenced. The moment the oath has
begun it is too late. The oath is begun by the juror taking
the book, having been directed by the officer of the court to
do so; but, if the juror takes the book without authority,
neither party, wishing to challenge, is to be prejudiced there-
by.8 This may also be deemed, in substance, the American
doctrine. But as there are many points which may depend
more or less on local usage, it is thought best to close the dis-
cussion of this matter here, and refer the reader to a digest

of points* appended hereto in a note.

1 2 Hawk. P. C.c. 48,§ 4. In The
State v. Price, 10 Rich. 351, O’Neall, J.
said: “A peremptory challenge, Haw-
kins tells us, must be ‘taken by the pris-
oner himself, even in such cases where-
in he may have counsel.’ This distinc-
tion, it would be well should be more
strictly attended to in practice. This
challenge proceeds upon the notion,
that the prisoner may, upon looking at
the juror, be unwilling he should try
him. When he has announced his re-
jection, I do not see how he can revoke
it, otherwise than that he may be per-
mitted, when his rejection was the re-
sultof asudden mistake, to take him as
one of his jury ; or, when the panel being
exhausted, he elects to take one whom
he had previously rejected.” p. 355.
And see as to this latter point, Rex v.
Parry, 7 Car. & P.836. And see Steele
v. Commonwealth, 3 Dana, 84.

2 2 Hawk. P. C. ¢. 43, § 4.

® Reg. v. Frost, 9 Car. & P. 129, 136.
See ante, § 12.

4 If the court erroneously overrules

VOL. I. 48

In the examination of

the prisoner’s challenge to a juror for
favor, and then the prisoner peremp-
torily challenges the juror, the error is
not cured by his subsequent exclusion,
although the prisoner had not exhausted
his peremptory challenges even when
a jury was finally obtained. Lith-
gow v. Commonwealth, 2 Va. Cas. 297.
Where a juror, on a trial for murder, is
objected to for cause, and the objection
is overruled, to which the prisoner ac-.
cepts, and afterward challenges the ju-
ror peremptorily, he is entitled to the
benefit of the exception. Baxter v.
People, 3 Gilman, 368. The right of
challenge must be exercised, if at all,
before the jurors are interrogated by the
court concerning their bias and opinions.
Commonwealth v. Webster, 5 Cush.
295 ; Commonwealth v. Rogers, 7 Met.
500. When a juror is challenged for
cause, the challenge is tried, the juror
found indifferent, and the prisoner ex-
cepts to a ruling of the court thereon,
if afterward he challenges the juror per-
emptorily, he thereby waives his excep-

[565]
§ 806

PRACTICE.

[BOOK VI.

such points as some of those which are here discussed, the

reader will find it helpful to

tion. Freeman v. People, 4 Denio, 9.
The fact that a prisoner did not avail
himself, as he might, of a peremptory
challenge to exclude a juror who was
found indifferent upon a challenge for
cause, does not prevent him from tak-
ing advantage of an error committed
on the trial of the challenge for cause,
though it appears that his peremptory
challenges were not exhausted when
the impanelling of the jury was com-
pleted. He is entitled to have his chal-
lenges for cause determined according
to law, and to make or withhold his
peremptory challenges according to his
pleasure. People v. Bodine, 1 Denio,
281. And see People v. Knickerbocker,
1 Parker C. C. 302; McGowan v. The
State, 9 Yerg. 184. Ifa party chal-
lenges a juror peremptorily, when he
is not obliged to do so, he waives his
exception, and cannot avail himself on
error of the exception thus abandoned.
And this, although he may exhaust his
right of peremptory challenges. Stew-
art v. The State, 13 Ark. 720. In a
capital trial, the prisoner may challenge
a juror peremptorily, after he has made
such answers on the voir dire as do not
authorize a challenge for cause. Com-
monwealth v. Knapp, 9 Pick. 496. Or
he may first challenge for cause, and re-
serve his peremptory challenge. Hook-
er v. The State, 4 Ohio, 348. The right
to challenge a juror peremptorily, re-
mains open until the juror is sworn.
Munly v. The State, 7 Blackf. 593;
Morris v. The State, 7 Blackf. 607. In
a trial for murder, the prisoner may be
required to make his peremptory chal-
lenges from the list of jurors, without
first knowing what the State may make.
The State v. Hays, 23 Misso. 287. On
a trial for murder, before the jury were
sworn, but after the panel was complete
and accepted, the respondent asked
leave to challenge a juror peremptorily,
he not having challenged the number

[566]

consult the decisions of other

allowed, but leave was refused. Held,
that this was not erroneous. The State
v. Cameron, 2 Chand. 172. After
eleven of the jury, in a capital case,
had been sworn, and the twelfth select-
ed, the defendant offered to interpose a
peremptory challenge to one of the
eleven without naming him, or stating
that any fact had been learned since he
was sworn; the offer was refused. Peo-
ple v. Rodriguez, 10 Cal. 50. After the
jury list had been called over in the
presence of the accused and his coun-
sel, and five jurors had been sworn,
and four peremptory challenges had
been made by the prisoner, his counsel
moved fora continuance, on the ground
that various jurors in the list were not
in attendance, and not within the ju-
risdiction of the court, and not liable
to jury service, and that some of them
had been excused previous to the list
being served on the prisoner. But it
was held that the accused must be con-
sidered as having waived any objection
he might have had to the panel, and
that it was too late to move for a con-
tinuance. The State v. Lindsey, 14
La. An. 42. Where a statute gives the
right of peremptory challenge to a
prisoner put on trial “for an offence
punishable with death, or imprisonment
in a state prison ten years or any longer
time,” a person indicted for burglary
in the second degree, which is punish-
able “ by imprisonment in a state pris-
on for a term not more than ten years
nor less than five years,” is entitled to
peremptory challenges. Dull v. Peo-
ple, + Denio, 91. In South Carolina,
the rule of court, adopted November,
1856, directing that, where the right of
peremptory challenge shall be claimed
and allowed, a child under ten years of
age shall, in the presence of the court,
draw one from the names of all the
jurors in attendance, which one, having
auswered, shall be presented to the ac-
\

CHAP. XLIV.] THE PETIT JURY, ETC. § 807

courts than his own ; yet, after all, they will be found to de-
pend so much on local usage that he cannot safely rely upon
a decision pronounced out of his own State. Other of these
points depend more upon principles of general law, and the
decision in one State will be pretty sure to control the ques-
tion in another.

V. Subsequent Objections to Jurors or the Panel.

§ 807. The doctrines of this sub-title appear, almost in full,
in discussions which have gone before, not only in the present
volume,! but also in the work on the Criminal Law.2 The
reader will see, on looking at the places referred to in the
notes, that, if a party declines to take an objection while the
jury is being impanelled and sworn for the cause, he cannot or-
dinarily take it afterward? So if a juror is removed from the
panel.on the erroneous supposition that there is good ground
of challenge against him, the defendant, who is convicted,

cannot have a new trial, if he did not object at the time.*

cused, and so on, until in regular course
the panel may be exhausted, or a jury
be formed, does not violate any provis-
ion of the constitution, or any act of
the legislature. The State v. Boat-
wright, 10 Rich. 407. No juror, who
has been once challenged, can be again
summoned in the same cause. Garner
v. The State. 5 Yerg. 160.

1 Ante, § 422 et seq., 759, 760, 762,
793.

2 Crim. Law, I. § 840 — 850, 869, 875,
876.

8 And see Billis v. The State, 2 Mc-
Cord, 12; Costly v. The State, 19 Ga.
614; Commonwealth v. Jones, 1 Leigh,
598.

* Commonwealth v. Stowell, 9 Met.
572. In the course of a trial for mur-
der, a juror, while one of the counsel
for the prisoner was addressing the jury,
had a chill, and was by order of the
court placed upon a pallet. During a
part of the time, he was in a drowse,
and did not fully comprehend the whole
of the argument; though he had under-

stood the whole of the evidence, and
all that had been said by counsel previ-
ously. The fact that he was asleep was
known to the prisoner at the time, but
the attention of no one was called to
it. And it was thereupon held, that this
was not sufficient cause for setting aside
the verdict. ‘I will not say,” observed
Caton, J. “that a case of this nature
might not be presented, so strong as to
induce the court, in its-discretion, to set
aside the verdict for this cause alone,
but it would have to go very far beyond
the one which is now before us.” Baxter
v. People, 3 Gilman, 368,379. Ina case
of manslaughter, after the jury were
charged, the surgeon who examined the
body was ascertained to be absent, and
the prisoner’s counsel asked that the
jury should be discharged. Held, that,
on this request, the judge had authority
to order it to be done. Rex v. Stokes,
6 Car. & P..151. If the court improp-
erly sets aside a competent juror, at the
instance of the accused, it is an error
of which he cannot be heard to com-

[567]
§ 809 PRACTICE. [BOOK VI.

§ 808. It has been held, in Virginia, that, after a juryman
has been elected and sworn, the court may, if it please, as a
matter of discretion, permit the prisoner to challenge him for
cause, and strike him from the panel.1 And when it is in
any way discovered, after a juror is sworn, and before the
trial commences, that he is incompetent, he may be set aside,
and the panel filled up in the ordinary course.?

§ 809. Where, during the trial, a juror is taken too sick
to proceed, this is a visitation of God which shows the pris-
oner never to have been in jeopardy, and he cannot claim to
be discharged though the hearing is here broken off? Still
it is competent for the court to add to the eleven anoth-
er juryman returned in the panel; but the prisoner should
be offered his challenges over again as to the eleven, the
eleven should be sworn de novo, and the trial begin again.*
In Tennessee, there is a statute which “ provides,” says the
court, “that if, during the progress of the trial, a juror or
jurors should become so unwell that in the opinion of the
court presiding he or they are unable to serve, such may be
permitted to withdraw, and the sheriff shall be directed to
summon imstanter a juror or jurors in his or their place or
places, who shall by the direction of the court be sworn, and
the trial proceed de novo.” Under this statute it is held, that
the jurors not discharged remain as selected jurors ; but, in
selecting a juror from those newly summoned to fill the place
of one who has been discharged, the defendant is entitled to
the full original number of peremptory challenges.® If, while
the jury is being made up, but before the list is completed, a
particular juror who has been selected and sworn is excused
for sickness, the case stands ona different ground ; and one
more juror is simply selected in the usual course.®

plain. McAllister ». The State, 17 Ala. 3 Crim. Law, I. § 869.

434, See also, Spencer v. The State, 4 Rex v. Edwards, Russ. & Ry. 224,

15 Ga. 562. 2 Leach, 4th ed. 621, note, 3 Camp. 207,
1 Tooel v. Commonwealth, 11 Leigh, 4 Taunt. 309; Rex v. Scalbert, 2 Leach,

714. See McFadden v. Commonwealth, 4th ed. 620; Reg.v. Beere, 2 Moody &

11 Harris, Pa, 12. R. 472.
2 People v. Damon, 13 Wend. 351; 5 Garner v. The State, 5 Yerg. 160.
McGuire v. The State, 37 Missis. 369. 6 Pannell v. The State, 29 Ga. 681.

[568]
CHAP. XLIV.]

THE PETIT JURY, ETC. § 812

§ 810. In writing the foregoing sections of the present sub-
title, the writer was aware that he was treading to the very
edge of disputed ground ; yet it is believed that what is there
set down, is, though not supported by very numerous decis-
ions, substantially approved law in nearly all localities. Yet
the reader who is looking after the nice distinctions should
consult, in connection with these sections, the places, in the
previous discussions, already referred to.1

VI. The respective Provinces of Court and Jury.

§ 811. The duty of the jury appears in some measure from
an inspection of the oath which they take. In England, the
form is as follows : —

“ You shall well and truly try, and true deliverance make, between our
sovereign lady the Queen and the prisoner at the bar whom you shall have
in charge, and a true verdict give according to the evidence. So help you
God.” ? ;

This differs from the oath taken in civil causes, wherein the
jury swear to find according to the law and the evidence, in-
stead of the evidence merely. “It is,’ said Ormond, J., in
an Alabama ease, “the oath which has been administered to
juries, in criminal cases, from the earliest records of criminal
trials to the present day, both in England and the United
States.” 8

§ 812. Partly in consequence of this difference in the form
of the oath, and partly because of other reasons, it is held, by
some of our courts, that, in criminal cases, differing herein
from civil, the.jury is to judge of the law as well as of the
evidence. And, in some of our States, this is made so by ex-

Harri-

1 Ante, § 807, note.

2 2 Gude Crown Pract. 583 ; 1 Chit.
Crim. Law, 551; Lord Campbell, C. J.
in Mansell v. Reg., 8 Ellis & B. 54, 79.

3 The State v. Jones, 5 Ala. 666, 673.
But it appears to be laid down in Ar-
kansas, that the jury should be sworn
to try the issue according to the law and
the evidence. Burrow v. The State, 7
Eng. 65; Sandford v. The State, 6
Eng. 328. In Iowa, the form of the

48 *

oath is prescribed by statute.
man v. The State, 2 Greene, Iowa, 270.

4 The State v. Jones, 5 Ala. 666; *
The State v. Snow, 18 Maine, 346;
Armstrong v. The State, 4 Blackf. 247 ;
Warren v. The State, 4 Blackf. 150 ;
McGuffie v. The State, 17 Ga. 497.
As to Alabama, see also, Batre v. The
State, 18 Ala. 119; Pierson v. The State,
12 Ala. 149; Thompson v. The State,
21 Ala. 48, where the doctrine of the

[569]
§ 818 PRACTICE. [BOOK VI.

press constitutional provision. For example, the Constitu-
tion of Maryland provides, that, “in the trial of all criminal
cases, the jury shall be the judges of law as well as fact.” ?
In Illinois, the provision is found in the Criminal Code, the
words of which are, “Juries, in all cases, shall be judges
of the law and the fact.”? And the language, statutory
or constitutional, is similar in some of the other States.
On the other hand, in other of the States, the doctrine ap-
pears to be laid down pretty distinctly, that, in criminal cases
the same as in civil, the jury are bound to take the law from
the court, whatever may be their own private judgments.!
There is also a middle class of opinion, which makes the jury
judges in some sense of the law, but not fully.®

§ 813. The course of opinion and practice, on this question,
differs so much, and is subject to so many shades of distinc-
tion, in the several States, that it is best not to attempt to
draw the lines here as respects any one State ; but to impress
upon each practitioner the importance of examining his own
domestic decisions, and following them. On principle, the
matter stands as follows: The law puts it into the power of
a jury, in a criminal case, to find either for or against the
defendant, as they may deem right; and, if they think the
judge errs in his expositions of the law, they do not violate

their oath should they disregard them.

And if they bring in

a general verdict of acquittal, the court has no power,in law

first-cited case seems to be somewhat
modified.

1 Franklin v. The State, 12 Md. 236.

2 Schnier v. People, 23 Ill. 17; Fisher
v. People, 23 Ill. 288, 294,

8 Lynch v. The State, 9 Ind. 541 ;
McCullough v. The State, 10 Ind. 276 ;
Williams v. The State, 10 Ind. 503 ;
The State v. Sims, Dudley, Ga. 213.

4 Hardy v. The State, 7 Misso. 607 ;
McGowan ». The State, 9 Yerg. 184 ;
Dale v. The State, 10 Yerg. 551 ; United
States ». Morris, 1 Curt. C. C. 23.

5 Commonwealth v. Knapp, 10 Pick.
477 ; Commonwealth v. Porter, 10 Met.
263; Commonwealth v. White, 10 Met.
14; Thompson v. The State, 21 Ala.

[570]

q

48; Pleasant v. The State, 13 Ark. 360;
Montgomery v. The State, 11 Ohio,
424; Commonwealth v. Van Tuyl,
1 Met. Ky. 1; The State ». Peace, 1
Jones, N. C. 251; The State v. Scott,
12 La. An. 386. For some not quite
harmonious New York opinions, see
People v. Pine, 2 Barb. 566; Carpen-
ter v. People, 8 Barb. 603 ; People 2.
Finnegan, 1 Parker C. C. 147; Safford
v. People, 1 Parker C. C. 474 ; People
v. Thayer, 1 Parker C. C. 595; People
v. Videto, 1 Parker C. C. 603. As to
the constitutionality of a statute mak-
ing the jury judges of the law, see Com-
monwealth v. Anthes, 5 Gray, 185.
CHAP. XLIV.] THE PETIT JURY, ETC. § 815

to set the verdict aside. Neither can the court punish the
jury for this, however much they may have misapprehended
the law, or however obstinately they may have disregarded
the instructions of the judge. Legally, therefore, they have
the right to follow their own views of the law, when those
views conduct to an acquittal ; since the law inflicts on them
no punishment, and provides in the case no redress, if they
do not. Whether the jury have the moral right to set up
their opinions above those of the judge, and to bring in
the verdict which they believe to be just, not what he tells
them is so, is a question of ethics the discussion whereof does
not belong to these pages.

§ 814. Whether or not the counsel shall be permitted to
argue the law to the jury is another matter. In Maryland,
where, as we have seen,' the jury are by the express words
of the Constitution “judges of law as well as fact,” in all
criminal cases, the court held, that the counsel for the pris-
oner might be rightly forbidden to argue the question of the
constitutionality of the statute to the jury. The reason as-
signed was, that this clause of the Constitution was merely in
affrmance of the existing law, not intended to change the
relative powers of courts and juries.?, But in Indiana, under
a like provision of the Constitution, it is laid down that coun-
sel have the same right, in criminal cases, to argue to the jury
questions of law, as of fact.2 While in Massachusetts, where
the jury are held to be under obligation to take the law from
the court, it is held also, that the defendant or his counsel
has the right to argue it to the jury.*

§ 815. The right of the jury to judge of the law, supposing
it to exist, does not take away from the courts any judicial
duties. The State, which prosecutes, does not seek a convic-
tion in any case wherein her laws are not shown to have been
violated, according to the interpretation given them by the
judges whom she employs to expound them in her own tribu-
nals. They, therefore, are to instruct the jury concerning

1 Ante, § 812. £ Commonwealth v. Porter, 10 Met.
2 Franklin v. The State, 12 Md. 236, 263; Commonwealth v. Austin, 7 Gray,
8 Lynch v. The State, 9 Ind. 541. 51.

[571]
§ 816 PRACTICE, [BOOK VI.

the law of the case, in these criminal causes, the same as in
civil. And even though an express clause of the Constitu-
tion makes the jury judges of the law, still they violate their
oath if they bring in a verdict counter to the instructions of
the judge in a matter of law, unless they believe him to be
wrong about the law, and believe a different view to be the
true one! When, also, there is a conviction, and the judges
deem it to be wrong in point of law, they may set aside the
verdict, or otherwise reverse the result, according to the com-
mon course of the court, in these cases the same as in any
other.?

- § 816. The juridical philosophy of this matter of permitting
the jury to be judges of the law in criminal causes appears to
be the following. According to ordinary rules, whatever the
judge in a particular case declares to be law, is, if his decision,
is not reversed by a higher tribunal, the law of the case; and,
if it is reversed, the decision of the higher court is in like man-
ner the law of the case. But this proposition cuts very deep.
The prisoner is conclusively presumed by the law to have
known what this law of the case was, at the time when he did
the act, the same as the judge and counsel know it after long
examinations of books, deep search into legal principles, and
profound deliberation.2 Yet to qualify, in some measure,
aud bend to human infirmities, this extremely rigid rule, the
doctrine of permitting juries to judge of the law declares, that,
if in a particular case the jury, after receiving instructions
from the court, believe upon their oaths the act done to have
been no violation of law, they may so find, though the judge
thinks otherwise.. And truly it seems not to be a very wide
departure from abstract justice to require of a man, when he
does an act, no greater knowledge of the law relating to it, in
order to hold him as criminal by reason of the doing, than
the jury possess afterward, when, having listened to the full

1 Schnier v. People, 23 Il1.17; Fisher State, 9 Ind. 541 ; McCullough v. The
v. People, 23 Ill. 283; The State v. State, 10 Ind. 276; Williams v. The
McDonnell, 32 Vt. 491. And see Gold- State, 10 Ind, 503.
en v. The State, 25 Ga. 527; McPher- 2 The State v. Sims, Dudley, Ga.
son v. The State, 22 Ga. 478; Carter 213; Daily ». The State, 10 Ind. 536.
v. The State, 2 Ind. 617 ; Lynch v. The 5 Crim. Law, I. § 874 et seq.

[572]
CHAP. XLIv.] . THE PETIT JURY, ETC. § 819

and carefully weighed instructions of the proper judicial tri-
bunal upon the subject, they give it their calm deliberation,
in the solemnity of thought and freedom from mental bias
which are supposed to attend whatever is done under oath.

§ 817. It would be interesting to follow up the course of
the trial, and see in what manner the judge is to charge the
jury, and what in all respects it is for the one or the other to
do ; but the waning space which is left in the present volume
reminds us that this sub-title must close here.

VII. The Weight of Evidence necessary to convict.

§ 818. It is a very familiar proposition, that, to justify a
jury in convicting the defendant, they must be satisfied of bis
guilt beyond a reasonable doubt... And where the judge
charged the jury, that the rule in regard to a reasonable
doubt was somewhat relaxed in the lesser offences, this was
held to be erroneous. Said the court: ‘The doctrine, as laid
down by text-writers on evidence, extends equally to cases of
every degree.” 2

§ 819. It is not quite safe for a court to undertake to
depart from these established words in instructing a jury.
Thus, where the instruction was, that it is not necessary the
jury should be satisfied of the defendant’s guilt to the exclu-
sion of a reasonable doubt; but, if from the evidence they
should believe him guilty, they should so find, though they
entertained a reasonable doubt; this was held to be wrong.
And where the instruction was, “that the jury should weigh
and consider all the facts and circumstances proven to their
satisfaction, in connection and combination, and should hold
them and pass judgment on them in that condition ; and that,
if the conclusion from the facts and circumstances so proven
to their satisfaction be, that there is that degree of certainty
in the case that they would act on it in their own grave and
important concerns, that that is the degree of certainty which

1 Ante, § 503; The State v. New- tle, 12 Cush. 502; Tweedy ». The State,
man, 7 Ala. 69; Shultz v. The State, 5 Iowa, 433.
13 Texas, 401; People v. Thayer, 1 2 Wasden v. The State, 18 Ga. 264 ;
Parker C. C. 595; Brown v. The State, s.r. The State v. King, 20 Ark. 166.

23 Texas, 195 ; Commonwealth v. Tut- 8 The State v. Fugate, 27 Misso, 535.
[573]
§ 820

PRACTICE.

[BOOK VI.

the law requires, and which will justify and warrant them in
returning a verdict of guilty”; this also was held to be erro-
neous. Said Simpson, C. J.: “The evidence must be suffi-
cient to produce a full conviction of guilt, to the exclusion of

all reasonable doubt.” }

VIII. The Deliberations of the Jury, and their Verdict.

§ 820. The several quéstions which arise under this sub-
title are, with the exception of the one. which concerns the
form of the verdict, attended with some uncertainty and con-

flict of judicial decision and

1 Jane v. Commonwealth, 2 Met. Ky.
30, 83. There was a reference made in
this case to a statute, which, however,
did not, I presume, affect the result,
since it merely affirmed the common-
Jaw rule. Its words are, “that, where
there is a reasonable doubt of the de-
fendant being proven to be guilty, he is
entitled to an acquittal.” p. 34. Some
other adjudged points are the following :
A refusal by the presiding judge to in-
struct the jury, ina criminal case, that
“the evidence, to justify a conviction,
must be at least equal to the testimony
of one unimpeached witness,” is not
ground of exception ; he having instruct-
ed them, that they must be satisfied be-
yond a reasonable doubt of the defend-
ant’s guilt. Commonwealth ». Tuttle,
12 Cush. 502. The statement to the
jury, that, “to exclude rational doubt,
the evidence should be such as that men
of fair ordinary capacity would act upon
it in matters of high importance to
themselves,” was held not to be a cor-
réct exposition of the law. The State
v. Oscar, 7 Jones, N. ©. 305. Yet, on
the other hand, it has been laid down,
that, if the whole evidence produces
such a conviction in the minds of the
jury of the guilt of the prisoner, as they
would act upon in a matter of the highest
importance to themselves in a like case,
it is their duty to convict. The State
v. Nash, 7 Iowa, 347. Again: on the

[574]

practide. The English and

trial of critninal cases, mathematical or
metaphysical certainty, or direct and ir-
refragable evidence, is not necessary ;
all that the law requires, is moral cer-
tainty ; which is, that the jury, whether
the évidence be positive or presumptive,
should be satisfied of the defendant's
guilt. A mere vague conjecture or pos-
sibility of his innocence, or anything
short of a reasonable doubt, will not
justify his acquittal. Giles v. The State,
6 Ga. 276. In another case, the court,
having instructed the jury that they
must be satisfied, beyond a reasonable
doubt, of the guilt of the prisoner, be-
fore convicting her, refused to add the
instruction prayed for, that the jury
must acquit, unless the evidence satis-
fied them of the guilt of the prisoner
as fully as the direct testimony of a
single witness would do; because it was
included in a former instruction, and
because it was not a safe practical rule,
though it might be a correct abstract
one. Cicely v. The State, 13 Sm. & M.
202. Proof which convinces and directs
the understanding, and satisfies the rea-
son and judgment of those who are
bound to act conscientiously upon it,
is proof beyond u reasonable doubt, if
it leaves in the mind an abiding con-
viction, to a moral certainty, of the
truth of the charge. Donnelly v. The
State, 2 Dutcher, 601. See also, Winter
v. The State, 20 Ala, 39.
CHAP. XLIV.] THE PETIT JURY, ETC. § 821

American law relating to them differs perhaps somewhat; the
ancient and modern, differs; and the law of the several States
differs. Let us devote to them such space as we can; re-
membering, however, that we here tread on ground shaken
by the yet continuing earthquake of change, where nothing
is quite surely stable, and the form of the future does not
hitherto distinctly appear.

§ 821. The Custody of the Jury. After the jury is impan-
elled, down to the close of the public hearing in the case, the
jury sits in open court, and is, of course, in charge of the
court. But when this,body goes out to deliberate on its ver-
dict, it is committed to the care of a sworn officer of the court.
The oath which this officer takes, is, as given in the English
books, as follows : —

“ You shall well and truly keep this jury in some convenient and private
place, without meat, drink, or fire (candle light excepted) ; you shall not
suffer any person to speak to them, neither shall you speak to them your-
self, unless it be to ask them if they are agreed on their verdict, without
leave of the court. So help you God.”!

This form of the oath is not used in all our States ; for it
proceeds on an idea of the law which in probably most of the
States is now, in part or in full, obsolete. Therefore the form
is modified to accord with the modified idea of the law. And
it is held in Ohio, that, where the jury retire in charge of a
sworn officer of the court, there need not be administered to
this officer any special oath whatever. Said Read, J.: “One
of the objects of administering the special oath to officers
having charge of juries, in ancient times, appeared to be to
secure an observance of those senseless and harsh measures
which looked oftentimes to the compelling of a verdict by
physical suffering, rather than a conviction of reason, which
both officer and jury were disposed to disregard. That has

1 2 Gude Crown Pract. 584, Chitty are agreed. So help you God.” 1 Chit.

Crim. Law, 632.

gives the oath, as extracted from Dal-
ton’s Justice, c. 185, as follows: “ You
shall swear that you shall keep this jury,
without meat, drink, fire, or candle; you
shall suffer none to speak to them;
neither shall you speak to them your-
self, but only to ask them whether they

But the form copied
into the text is a later-published one,
furnished by an author who, taking it
from actual practice, could not be mis-
taken. The date of his publication is
1828.

[575]
[BOOK VI.

§ 823 PRACTICE.

passed away, and with it the means resorted to, to enforce
it.”1 Where the jury go out under the charge of an unsworn
officer, the verdict, it has been held in Mississippi, will be set _
aside, unless it affirmatively appears that they were in no way
affected thereby.?

§ 822. There is a class of criminal cases in which it is held,
by most of our courts, that the jury must not be permitted to
separate after they are impanelled and sworn to try the cause.?
If, therefore, the court adjourns for a space of time during
the progress of the trial, or if for any other reason the jury is
to be kept together out of the presence of the court, they
should be placed under the charge of a sworn officer. And
where, in an Indiana case, it did not appear that this was done
during an adjournment, the verdict was set aside as errone-
ously rendered. Perhaps, in some of the other States, this
consequence would not be held necessarily to follow the omis-
sion to pursue this ‘practice ; while yet the practice itself is
doubtless everywhere deemed to be the true practice.®

§ 823. The Jury in the Presence of the Court. While the
jury are in the presence of the court, they are subject to its
immediate control and direction. Beyond this, it is easy to
state what points have been held by particular tribunals ; but
there is not much which can be said-with any certainty that
it will be accepted everywhere as sound in law.® It is plain,

1 Davis v. The State, 15 Ohio, 72.

2 McCann v. The State, 9 Sm. & M.
465.

3 Post, § 824.

4 Jones v. The State, 2 Blackf. 475.

5 Gibbons v. People, 23 Ill. 518;
Stone v. The State, 4 Humph. 27.

& Some of the adjudged points are
the following : Ina criminal case, when
a juror is elected, he must remain un-
der the care of the court, or an officer,
before, as well as after, he is sworn ;
and neither the jurors who have been
elected and not sworn, nor the jury af-
ter they have been sworn, can disperse
without the consent of the prisoner.
McQuillen v. The State, 8 Sm. & M.
587. It lies in the svund discretion of

[576]

.the court to permit a portion of a jury

to disperse before completing the panel.
Frances v. The State, 6 Fla. 306. This
is, in substance, the Virginia doctrine
also. Toole v. Commonwealth, 11
Leigh, 714; Martin ». Commonwealth,
2 Leigh, 745. It is within the sound dis-
cretion of the presiding judge to allow
a juror to leave the jury box for a brief
time, even during the trial of a capital
case. The State v. McElmurray, 3
Strob. 33. Ifa juror, sworn in a capi-
tal case, is permitted to be separated
from his fellows, a special order author-
izing the separation should be entered
of record, and the juror placed in the
charge of an officer, who should be
specially sworn not to permit the juror
CHAP. XLIV. ] THE PETIT JURY, ETC. § 824

however, that what the court will permit must depend main-
ly upon whether or not the case is one in which, according to
the general practice of the court, the jury is permitted to
separate, on an adjournment, before the trial is finished.
And, if a juror has committed an irregularity without the
permission of the judge, its effect upon the verdict must de-
pend upon a variety of circumstances, such as will occur to
the reader during his perusal of the following sections.

§ 824. In what Cases the Jury may be permitted to leave the
Presence of the Court, unattended by an Officer, and Separate.
It is a doctrine prevailing almost everywhere in this country,
that, in capital cases, the jury can never be permitted to leave
the presence of the court, even on an adjournment over night,
except in charge of a sworn officer, and then they must be

kept together.}

to go out of his sight and hearing ; he
should also be sworn not to converse
with him about the trial himself, or per-
mit others to do so, and to cause the
juror to return as soon as practicable.
Jumpertz v. People, 21 Ill. 375. A ju-
ror, in a trial for manslaughter, after
having been sworn, left the jury box,
and walked about the room unattended,
conversing with various persons. And
this was held not to be a sufficient irreg-
ularity to set aside the verdict. Cohron
v. The State, 20 Ga. 752. A verdict will
not be set aside merely because one of
the jurors absented himself for a short
time from the others without the con-
sent of the court, where the record it-
self precludes the supposition that there
was any tampering with the juror.
Whimey v. The State, 8 Misso. 165.
Though jurors retire without leave, it
is no cause for a new trial unless they
converse with some one. Said Hall, J.:
“Tf it shall appear upon the affidavits
of the jurors that they did not speak
with any person in their absence, the
verdict ought not to be set aside.” The
State v. Carstaphen, 2 Hayw. 238. 5s. rv.
The State v. Lytle, 5Ire 58. Where,
on the trial of an indictment for rape,
one of the jurors, while the court was
VOL. I.

Yet in South Carolina it is held to be within

in session, left the box, passed through
the group of spectators standing about,
and after a moment’s stay returned to
the box, it was held that these facts
furnished no ground for a new trial,
Porter v. The State, 2 Ind. 435. A
conversation had by one or more of the
jury, in a trial for felony, with a per-
son not a member of the jury, or hay-
ing the charge of them, is, when unex-
plained, good ground for a new trial ;
but it is otherwise if it appears that no
influence unfavorable to the prisoner
was exerted. Riley v. The State, 9
Humph.646. Where, during a capital
trial, one of the jurors, in the presence
of the court, spoke to a person, not of
the jury, and asked him to give him a
vest ; this was held to be no ground for
a new trial. Rowe ». The State, 11
Humph. 491. But in one case, where
a juror, in the course of the trial, sep-
arated from his fellows, unattended by
an officer, the verdict was set aside.
The State ». Shippy, Brayt. 169. See
Stone v. The State, 4 Humph. 27.

1 Jumpertz v. People, 21 Ill. 375 ;
McLean v. The State, 8 Misso. 153 ;
The State ». Godfrey, Brayt. 170 ;
Quinn v. The State, 14 Ind. 589.

[577]
[BOOK VI.

§ 825 PRACTICE.

the discretion of the court, even in capital cases, to permit
the jury to separate at the adjournments from day to day.
Still it was observed by Johnson, J.: “ The great influence
which public opinion has over individuals, and the practices
to which jurors, who are charged with the trial of a cause,
are exposed, furnish the most cogent reasons for preventing
their dispersion, and intermixing with the parties, or their
friends, when it is practicable to prevent it.” 1 The like doc-
trine and practice appear to prevail also in Connecticut.2 In
some of our States, the rule which forbids the court to permit
a separation appears to extend also to felonies not capital.’

§ 825. On the other hand, it is believed to be the doctrine
prevailing everywhere, both in England and this country,
that, on the trial of any misdemeanor, it is within the discre-
tion of the presiding judge to permit the jury to separate and
disperse at the adjournments.* And, as intimated in the last
section, this doctrine extends, in more or less of our States,
to the mass of criminal cases, without reference to the degree
to which the crime belongs. When such separation is per-
mitted, the judge ought to caution the jury against holding
conversation with any persons respecting the cause, or suf-
fering it in their presence, or reading newspaper reports or
comments regarding it, and the like.®

1 The State v. Anderson, 2 Bailey,
565, 566 ; The State v. McKee, 1 Bai-
ley, 651.

2 The State v. Babcock, 1 Conn. 401.

3 McLean v. The State, supra; Ber-
ry-v. The State, 10 Ga. 511; Wiley v.
The State, 1 Swan, Tenn. 256.

* Rex v. Woolf, 1 Chit. 401 ;
v. Kinnear, 2.B. & Ald. 462,

& Davis v. The State, 15 Ohio, 72;
Evans v. The State, 7 Ind. 271, where
it appears that this is so in Indiana by
statute.

8 In a-case of burglary, Armstrong,
J m sitting in the Pennsylvania court,
observed: “It is also assigned for error,
that the court permitted the jury to sepa-
rate, after they had been impanelled
and sworn, and heard a part of the evi-
dence. If this had been a case where-

[578]

Rex

in capital punishment could have been
inflicted, this assignment might possi-
bly have met with some favor. But
in cases of less magnitude, it has not
been the practice of our courts to con-
fine the jury during the hearing of the
evidence, but to direct, as was done
here, ‘to avoid all conversation with
any person about the case.’ It is the
province of the court trying the cause,
to see that the rights of the parties are
properly guarded, and this caution is
considered a sufficient protection, unless
something more is asked for. Agree-
ments [arguments] drawn from the prac-
tice in trials for capital felonies have
not the force that is asked for them,
wien  Spphel to offences of lesser do-
gree.” McCreary v. Commonwealth, 5
Casey, 323, 327.
CHAP. XLIV. |

THE PETIT JURY, ETO. § 827

§ 826. What may be, by the Court, permitted to the Jury
while in the Care of the Officer. It is obvious, that, in those
cases in which the court has a discretion to permit the jury
to separate altogether, it may make any direction, within such
general discretion, when, instead of doing this, it commits
them to the care of an officer. Whether or not refreshments
may be permitted to be given the jury is a question of local
usage, upon which the practice in the States differs In one
case, the jury, after they were impanelled, went in a body,
under the care of the sheriff, a mile and a half into the coun-
try for recreation. They were kept together; no one was
allowed to speak to them, and they were suffered to speak
to no one; and, on returning, they retired immediately to
their room. It was held that there was no impropriety in
this.?

§ 827. The Consent of the Prisoner. According to what is
probably the better doctrine, the consent of the prisoner to a
separation which the general rules of the law do not permit,
should never be asked of him; and, if it is asked and grant-
ed, or even granted without his being asked, it will avail
nothing? For, as Abbott, C. J. said: “I think the consent
of the defendant in such a case ought not to be asked; and
my reason for thinking so is, that, if that question is put to
him, he cannot be supposed to exercise a fair choice in the an-
swer he gives, for it must be supposed that he will not oppose
any obstacle to it; for, if he refuses to accede to such an a:-
commodation, it will excite that feeling against him which
every person standing in the situation of a defendant would
wish to avoid.” * Yet there are cases in which effect has been
given to a consent of this general sort, it not being deemed

1 See United States v. Haskell, 4 closed and thechargegiven. The State

Wash. C. C. 402; and cases cited post,
§ 828, note.

2 The State v. Perry, Busbee, 330.
According to a Louisiana decision, in
all criminal cases, the separation of the
jury, though by leave of the court, and
with the consent of the accused and his
counsel, will vitiate the verdict, if it
takes place after the evidence has been

v. Populus, 12 La. An. 710.

3 Ante, §424; Wesley v. The State,
11 Humph. 502; Berry v. The State, 10
Ga. 511; Wiley v. The State, 1 Swan,
Tenn. 256; People v. Backus, 5 Cal.
275; Peiffer v. Commonwealth, 3 Har-
ris, Pa. 468. See ante, § 686, 689.

4 Rex v. Woolf, 1 Chit. 401, 420, 421,
And see Terry v. Buffington, 11 Ga. 337,

[579]
§ 828 PRACTICE. [BOOK VI.

incompetent for a prisoner to give it.! If the consent is, that,
after the jury have agreed on their verdict, they may seal it
up and separate, this is no waiver by the prisoner of his right
to be present, together with all the jury, at the time it is ren-
dered, and poll them.”

§ 828. The Consequences of Misbehavior by the Jury or
a Juror, while in Charge of the Officer. It does not follow,
from the mere fact of misbehavior of one or more of the jury,
whether with or without the consent of the officer in charge,
that their verdict will therefore be set aside on the application
of the prisoner. There is no general rule which can be given
on this subject other than that, if the misbehavior is of such a
nature as may have been in its effect prejudicial to the pris-
oner, the verdict will be set aside; if otherwise, it will not

be. And upon this matter the
ing, and somewhat conflicting?

1 The State v. Mix, 15 Misso. 153;
Friar v. The State, 3 How. Missis, 422;
Quinn v. The State, 14 Ind. 589. The
Court of Appeals, in New York, held,
not long since, that on a capital trial
it is competent for the judge, with the
consent of the accused, to permit the
separation of the jury during the pro-
gress of the trial ; and a conviction is
not vitiated thereby, unless the sepa-
ration is shown to have been accompa-
nied by some abuse prejudicial to the

accused. Selden and Gray, judges,
dissented. Stephens v. People, 19 N.
Y. 549.

2 Wright v. The State, 11 Ind. 569.
And see Reins v. People, 30 Ill. 256 ;
The State v. Engle, 18 Ohio, 490; San-
ders v. The State, 2 Iowa, 230; Friar
v. The State, 3 How. Missis. 422.

8 It will help the reader to bring be-
fore him some points adjudged. He
must not attempt too much to reconcile
them with one another ; for this would
be hopeless. A separation, by the jury,
before bringing in their verdict, even in
a capital case, and much more in a case
not capital, does not, per se, render the
verdict void. It will be set aside, or

[580]

practice of the courts is vary-

not, according to circumstances. The
State v. Miller, 1 Dev. & Bat. 500;
Wyatt v. The State, 1 Blackf. 257;
People v. Douglass, 4 Cow. 26; Com-
monwealth v. McCaul, 1 Va. Cas. 271;
Parsons v. Huff, 38 Maine, 137; The
State v. Hester, 2 Jones, N. C. 83; Ed-
rington v. Kiger, 4 Texas, 89 ; The State
v. Barton, 19 Misso. 227; The State
v. Harlow, “21 Misso. 446; The State
v. Igo, 21 Misso. 459 ; Rex v. Kinnear,
2 B. & Ald. 462. The doctrine of
many courts is, that, in such a case,
the burden is on the State to explain
the matter, else there will be a new
trial. The State v. Miller, supra ; Jum-
pertz v. People, 21 Ill. 375 ; Roberts v.
The State, 14 Ga. 8 ; The Statev. Fox,
1 Ga. Decis. 35; The State v. Peter, 1
Ga. Decis. 46; The State v. Prescott,
7.N. H. 287; Keenan v. The State, 8
Wis. 132; Cornelius v. The State, 7
Eng. 782; Coker v. The State, 20 Ark.
53. In a capital case, a mere sepa-
ration by one juror from his fellows is
fatal to the verdict. Maher v. The
State, 3 Minn. 444. And see McLean
v. The State, 8 Misso. 153. A verdict
will not be set aside on account of the
CHAP. XLIV.]

THE PETIT JURY, ETC.

§ 829

§ 829. The Verdict and its Rendition. The question of the
prisoner’s presence in court, at the time when the verdict is

misconduct or irregularity of a jury,
even in a capital case, unless it be such
as might affect their impartiality, or
disqualify them for the proper exercise
of their functions. Where, in such a
case, the jury, after retiring and agree-
ing upon a verdict, procured the consta-
ble who had them in charge to bring
them some cider and other refreshments,
and the constable permitted the boy who
brought the refreshments to enter the
jury-room with himself, and some con-
versation took place in which the two
participated, but with no reference to
the case on trial, it was held, that these
facts constituted no ground for a new
trial. Commonwealth v. Roby, 12 Pick.
496,519. After the jury had been out
eighteen hours (in a criminal case), the
bailiff told them that they should have
nothing more to eat and no water to
drink unless they decided one way or the
other ; he intended it as a jest, and some
of the jurors so understood it, though
others were under the impression that
it was by order of the court. Held, that
it was not the natural effect of such a
communication to produce an impres-
sion improperly influencing the verdict,
and therefore that the conviction should
stand, though the officer had acted im-
properly. One of the jurors complained
of illness, and the officer brought hima
bottle of liquor, at the suggestion of
anothér juror, a physician; it appeared
that no one but the sick man drank,
and he a proper quantity only ; and the
conviction was allowed to stand. Pope
v. The State, 36 Missis. 121. After the
jury in a capital case had been charged
and committed to the care of an officer,
they were out locked up in the usual
jury-room from Thursday till Saturday.
During that time they frequently sepa-
rated to obey the calls of nature, one
going out at a time under the charge of
the officer, and one juror did this six
times ; during the absence of the officer,

49 *

the other jurors remained locked up in
their room. One juror, accompanied
by the. officer, went to a drug store, one
hundred and fifty yards off, for some
Medicine, being sick; and, in answer to
@ question whether they had agreed,
said they had not. The jurors ate and
drank with the permission of the court,
and sometimes in violation of the or-
ders of the court. They dropped notes
from the windows of the room in which
they were confined, and one juror stood
on the outside of the closed door, and
conversed privately with a stranger for
more than ten minutes. Several jurors
received letters, and also conversed with
persons from the windows of their room.
The negro servants and children of some
of them visited them; but what was
contained in the notes, and what was
the subject of the various conversations,
did not appear. Thereupon it was held,
that there is a difference between a
cause for a new trial, and a cause for a
mistrial ; that, whenever there are cir-
cumstances which cast suspicion on the
verdict, by showing there might have
been undue influences exerted upon the
jury, it is in the discretion of the pre-
siding judge at the trial to grant a new
trial ; but, if undue influences are shown
to have been actually exerted upon the
jury, there has been no trial, and the
court on appeal will grant a trial as
matter of, law. In this case, as it did
not appear, as matter of fact, that un-
due influences had been exerted, the
court could not declare the verdict to
be the event of no trial, but were of
opinion that the presiding judge would
have had good ground for granting a
new trial. The State v. Tilghman, 11
Ire. 513. Where the jury went to the
jury-room to consider of their verdict,
unaccompanied by any officer, yet it
did not appear that they had separated,
or that anything improper had been
done, the court refused to grant a new

[581]
§ 829

rendered, has already been considered.’

PRACTICE.

[BOOK VI.

Chitty states the

method of rendering the verdict ; and, omitting those things

trial, Jarnagin v. The State, 10 Yerg.
529. Where a part of the jury, in a
capital case, the trial of which lasted
several days, frequently separated them-
selves at night from their fellow jurors,
for fifteen or twenty minutes at a time,
without being under the charge of an
officer, it was held that this was an ir-
regularity which vitiated the verdict ;
and it was unnecessary for the prisoner
to show that they were tampered with
during such. absence. It is sufficient,
if they might have been. McLain 2.
The State, 10 Yerg. 241. Said Breese,
J. in an Illinois case, ‘ The officer hav-
ing charge of the jury, permitting any
member of them to drink spirituous
liquors, was certainly very culpable,
and would have been properly punished
by the court; but itis not such conduct
as would vitiate a verdict.” Davis v.
People, 19 Ill. 74, 78. In Texas, how-
ever, it was held, that, if a jury, while
deliberating upon their verdict in a cap-
ital case, drink ardent spirits, this is
cause for a new trial. Said Lipscomb,
J.: “The weight of authority seems
to be against making the single fact of
the jury drinking ardent spirits, per se,
a sufficient ground for setting aside the
verdict. It is treated as any other act
of misconduct ; that, if furnished by a
party, or if it has had an influence on
the jury in finding their verdict, it
would be ground for setting it aside.
We, however, with due respect to the
judges who have maintained this doc-
trine, are constrained to depart from
their opinions; and we believe that the
view they have taken of the effect of
ardent spirits on the feelings, and also
the mind, has been superficial, and not
at all philosophical. Every day’s ex-
perience must satisfy us, that it is im-
possible to lay down a rule as to how
much can be drank without impairing
the qualification of a juror for discharg-

ing the trust confided in him. Its ef-
fects have been well described by Scot-
land’s most popular bard :—
‘Inspiring bold John Barleycorn!
What dangers thou canst make us scorn!
Wi’ tippenny we fear nae evil ;

Wi’ usquebae, we ’ll face the devil.’
Yes, it is but too true, that it will make
a man bold and reckless, not only of
consequences personally, but also of
the rights of those whose life and most
valuable interests, property and reputa-
tion, are at stake; and its effect is so
very different on different men, that it
would be dangerous in the extreme to
attempt to lay down any rule by which
it could or should be determined, wheth-
er a juror had drank too much or not ;
and the only safe rule is to exclude it
entirely.” Jones v. The State, 13 Texas,
168, 181, 182. See People v. Doug-
lass, 4 Cow. 26; Commonwealth v. Mc-
Caul, 1 Va. Cas. 271. That the drink-
ing of ardent spirits by the jury, when
not obtained from an improper source,
or taken to excess, is not sufficient, per
se, to set aside the verdict, see The State
v. Upton, 20 Misso. 397; Thompson v.
Commonwealth, 8 Grat. 637; Rowe v.
The State, 11 Humph. 491. One of the
jurors went about fifteen steps apart
from his fellows, but was under the eye
of the officer. Held, no ground fora
new trial. Nor is it any ground for a
new trial that the jury passed through
crowds of people in going to the hotel
where they dined, or that they dined at
the public table of the hotel, under the
charge of their officer ; no one speak-
ing to, or tampering with them. Rowe
v. The State, supra. To the like effect,
see Boles v. The State, 13 Sm. & M.
398. When a juror, after the jury
have left the bar to retire to their room,
separates from his brethren, and is out
of the presence and supervision of the
bailiff, it is an irregularity which, un-

1 Ante, § 686-689.

[582]
CHAP. XLIV.] THE PETIT JURY, ETC. § 829

which concern forfeitures, and are therefore not of use in
this country, it is as follows: ‘ When the jury have come to
a unanimous determination with respect to their verdict, they
return to the box to deliver it. The clerk then calls them
over by their names, and asks them whether they agree on
their verdict, to which they reply in the affirmative. He
then demands who shall say for them, to which they answer
their foreman. This being done, he desires the prisoner to
hold up his hand, and addresses them: ‘ Look upon the pris-
oner, you that are sworn; how say you, is he guilty of the
felony (or treason, &c.) whereof he stands indicted, or not
guilty?’ [The foreman then answers ‘ guilty,’ or ‘not guil-
ty,’ according to the conclusion to which the jury have ar-
rived in their consultations.] The officer then writes the
word ‘guilty,’ or ‘not guilty,’ as the verdict is, after the
words ‘ po se.’ on the record ; and again addresses the jury:
‘ Hearken to your verdict as the court hath recorded it; you
say that A. B. is guilty (or not guilty) of the felony where-
of he stands indicted, and so you say all.’”1 This is sub-
stantially the course of things in our States at the present
day ; but there will necessarily be slight differences in prac-
tice, and each court will pursue its ancient course. There
is no reason to suppose that any minute departures from the
old forms will vitiate the verdict.”

less clearly explained and justified, re-
quires that the verdict should be set
aside ; and the testimony of the juror
cannot be received to justify or explain
his absence. Organ v. The State, 26
Missis. 78. See also, Commonwealth
v. Wormley, 8 Grat. 712; Luster v.
The State, 11 Humph. 169 ; Kennedy
v. Commonwealth, 2 Va. Cas. 510;
Thomas v. Commonwealth, 2 Va. Cas.
479; People v. Backus, 5 Cal. 275 ;
Browning v. The State, 33 Missis. 47 ;
Ned ». The State, 33 Missis. 364. A,
the sheriff of the county, being prose-
cutor, B was indicted for murder and
convicted of manslaughter. B consent-
ing in person, A summoned the jury,
by direction of the court; and, though

the jury, when they retired, were put
under the charge of a constable, yet A
spent a night in the room with them.
In his own affidavit, which was admit-
ted in evidence, he swore that he “ made
use of no means, of any sort, to influ-
ence the jury.” But it was held, that,
in such a case, it is not required of the
prisoner to show a prejudice in fact to his
rights. It is sufficient that, from the ad-
mitted and unexplained facts of the case,
they might have been prejudiced. Mc-
Elrath v. The State, 2 Swan, Tenn. 378.

11 Chit. Crim. Law, 635, 636.

2 And see the observations of Shaw,
C. J. in Commonwealth v. Roby, 12
Pick. 496,514. See ante, § 688. Some
points which have been judicially held

[583]
§ 830

PRACTICE.

[BOOK VI.

§ 880. When the verdict has been thus rendered and re-
corded, it is conclusive, and it cannot be retracted by one or

in the different States, relating to this
matter, are the following : After a ver-
dict in felony has been received and
read, it is the duty of the clerk to direct
the jury to hearken to their verdict as
the court has recorded it ; then to re-
peat it to them and say, “and so say
you all,” or words to this effect; nor
is it perfected, until their assent is thus
given, any one having a right to retract.
Commonwealth v. Gibson, 2 Va. Cas.
70. The statute requiring the names
of jurors to be called, when they are
recalled for instructions, is directory ;
and a failure to conform to it is not fa-
tal, unless it appears that some preju-
dice has resulted to the defendant there-
by. The State o. Burge, 7 Iowa, 255.
It is no ground for arrest of judgment
in a criminal case, that the verdict of a
jury was not entered on the minutes of
the court at the term at which it was
returned ; and the court will, at a sub-
sequent term, order it to. be entered
mune pro tunc. Hall v. The State, 3
Kelly, 18. See also, The State v.
Reonnals, 14 La. An. 278. A jury
having come in with their verdict ina
capital case, the court inquired if the
defendant’s counsel would poll the jury ;
and then, if he knew any reason why
their verdict should not be received; to
both which he replied in the negative.
After the verdict was delivered, and the
jury dismissed and dispersed, but with-
in ten minutes, the court, remembering
that the jury had not been called over
each by name before the verdict was
delivered, had them reassembled, an
oath administered, and each juror swore
that he was in the box when the verdict
was delivered ; that he heard it read ;
that it found the defendant guilty of
murder, and that he agreed toit. Held,
that there was no ground for a new
trial. Mitchell ». The State, 22 Ga.
211. If the verdict of the jury is re-
ceived, and read aloud in open court,

[584]

in the absence of the prisoners, and the |
jury are then told by the court that they
are discharged, it is within the power of
the court to call them back before they
have left the bar; and, if they are im-
mediately recalled, upon the discovery
being made that the prisoners are not in
court, and the papers in the cause are
handed back to them, the prisoners are
not deprived of their right to poll the
jury, nor can they complain, on error,
of this action of the court. Brister v.
The State, 26 Ala. 107. After a jury
have returned their verdict, been dis-
charged, and separated, they cannot be
recalled to alter or amend it. Sargent
v. The State, 11 Ohio, 472. And see
Mills v. Commonwealth, 7 Leigh, 751.
In an English case of felony, of com-
paratively recent date, the verdict was
given in, by mistake of one of the ju-
rors, “not guilty,’ when the jury
meant guilty. The prisoner was there-
upon discharged from the dock; but,
some of the jury interposing, he was
immediately brought back, and the jury
were again asked what their verdict
was. They said “ guilty” ; upon which
the prisoner was sentenced. And it
was held, that the original mistake was
corrected within a reasonable time, and
the conviction was right. Pollock, C.
B. said: “It is much to be lamented,
that there should be a departure from
the old forms. It was usual, formerly,
after the delivery of the verdict, for the
clerk to address the jury as follows:
‘ Hearken to your verdict as the court
has recorded it! You say, that the pris-
oner is not guilty? And so say you
all’ When this form was observed,
there was an opportunity of correcting
any mistake..... We do not think
the court is called upon to say at what
interval of time a correction should be
made. All we do is to say that, in the
present case, the interval was not too
long. Nothing has been done but what
CHAP. XLIV.] THE PETIT JURY, ETC. § 830

by all of the jurors.! Neither can a juror be afterward heard
to object, that he did not consent to the verdict thus ren-
dered.2- To make all sure, therefore, “ if,” says Lord Hale,
“the jury say they are agreed, the court may examine them
by poll; and,” he adds, what is not law now, “if in truth they
are not agreed, they are finable.” ® And it is held in most of
our States, that either party may claim as of right to have the
jury polled, and a denial of the right is an error in the pro-
ceedings.* If the jury have brought in a sealed verdict by
consent, they are not to be interrogated thereon, but they must
be polled, if this is demanded.® The object of polling is mere-
ly to ascertain whether the verdict rendered by the foreman
in behalf of himself and the rest, is really concurred in by the
others; therefore the inquiry is restricted to the question, ‘‘Is
this your verdict ?””® Though the juror has in fact consent-
ed to the verdict, — though, even, it is in writing and he has
signed it, — yet he has the right to dissent at any time before
it is finally recorded ;7 and if, being asked the question at
the polling of the jury, he says he cannot conscientiously agree
to it, his scruples must be respected, and his dissent is effect-
ual. There are some States in which it is held not to be a
matter of right to have the jury polled.

792 Hale P. C. 299; Burk v. Com-
monwealth, 5 J. J. Mar. 675. The

daily takes place in the ordinary trans-
actions of life ; namely, a mistake is cor-

rected within a reasonable time, and on
the very spot on which it was made.”
Reg. v. Vodden, Dears. 229, 231, 6
Cox C. C. 226, °22 Eng. L. & Eq.
596.

12 Hale P. C. 299.

2 Rex v. Wooller, 2 Stark. 111; Mer-
cer v. The State, 17 Ga. 146 ; Stanton
v. The State, 13 Ark. 317.

38 2 Hale P. C.299; Watts v. Brains,
Cro. Eliz. 778.

* Nomaque v. People, Breese, 109 ;
Brister v. The State, 26 Ala. 107 ;
Mitchell v. The State, 22 Ga. 211; and
other cases cited to this section.

5 United States v. Potter, 6 Mc-
Lean, 186.

6 The State v. Bogain, 12 La. An.
264 ; The State v. John, 8 Ire. 330.

mere entry, by the clerk, of the verdict
in his book, does not necessarily con-
stitute a final recording of it. If, for
instance, the clerk makes the record
contrary to the understanding of the
jury, and the error is discovered on the
spot, the correction may be made.
When, in one case, “ there was an in-
terval of three or four minutes after
the verdict was recorded before the
jury expressed their dissent” ; the court
held that the entry might be vacated
and set right. Rex v. Parkin, 1 Moody,
45.

8 The State v. Austin, 6 Wis. 205 ;
The State v. Harden, 1 Bailey, 3. See
Loeffner v. The State, 10 Ohio State,
598.

® Commonwealth v. Roby, 12 Pick.

[585]
§ 881

PRACTICE.

[BOOK VL

§ 831. When the jury come in with their verdict, it is not,
as of course, to be immediately received in the form in which
it is rendered. And it is probably the correct doctrine that
the judge may require the jury to pass by their verdict upon
the whole indictment, in such form of words as shall counsti-
tute a sufficient finding in point of law; or, if they refuse,
decline altogether to accept the verdict.’ It seems quite

496, 511, 513; The State v. Wise, 7
Rich. 412.

1 Thus, it is in the discretion of the
judge, and not a matter for exception,
whether he will inquire of the jury,
rendering a verdict of guilty of murder,
if they found the name of the person
killed to be the same as alleged in the
indictment. The State v. Conley, 39
Maine, 78. Before a verdict is received
by the court and recorded, the judge
may call a witness previously examined
and cause his examination upon a point
on which the jury are not satisfied, or
on which they are about to render an
erroneous verdict; and the jury has
control over their verdict, in such case,
although delivered to the clerk. Burk
v. Commonwealth, 5 J. J. Mar. 675.
In Rhode Island, by provision of the
statute regulating the sale of intoxicat-
ing liquor, “It shall not be necessary
to prove an actual sale, &c., but the no-
torious character of any such premises,
&c., or the keeping of the implements or
appurtenances usually appertaining to
grog shops, tippling shops, or places
where intoxicating liquors are sold, shall
be prima facie evidence that such prem-
ises are nuisances within the meaning
of the first section of this chapter.”
Thereupon it was held, that if, on the
jury being polled, three of the panel re-
fuse to consent to the verdict of “ guilty,”
but answer “guilty of keeping a bar
there,” the, court is not authorized to
record the verdict “ guilty.” The State
v. Wright, 5 R. I.287. The court may
require a verdict to be amended by the
jury, in matter of form, before receiving
it. Cook v. The State, 26 Ga. 593.

[586]

Where a jury has convicted a prisoner,
and fixed the term of his imprisonment
for a shorter period than the law al-
lows, the court cannot enter judgment
on the verdict for the shortest period of
imprisonment anthorized by the law,
for the offence. If the error is discov-
ered before the jury is discharged, they
should be sent back with proper instruc-
tions to reconsider the verdict. And if
they persist in their finding, or if they
have been dismissed before the error is
discovered, the court should direct a
venirede novo. Nemo v. Commonwealth,
2 Grat. 558. In an English case, the
jury, at a sessions, gave a special ver-
dict of not guilty, and it was entered in
the book of the clerk of the peace. Af-
terward the chairman told the jury, they
must reconsider their verdict ; and they
gave a verdict of guilty generally, but
recommended the defendant to mercy
on account of his not doing the act
with a malicious intent; and the ver-
dict was then altered in the book of the
clerk of the peace. “The court refused
to interfere by mandamus to cancel
the alterations. Said Littledale, J. :
“Whether the verdict is entered prop-
erly or improperly, is matter for the
consideration of the court in which the
trial took place.’ Rex v. Suffolk Jus-
tices, 5 Nev. & M. 139; s. c. nom. Rex
v. Hughes, 1 Har. & W. 813. Ina
later English case it was held, that the
judge was not under a legal duty to re-
ceive the first verdict which is returned
by the.jury. And where, on an indict-
ment for obtaining money by false
pretences, the jury brought in the fol-
lowing verdict: “ We find the prisoner
CHAP. XLIV.] THE PETIT JURY, ETC. § 832°

plain, that, in every case of a verdict rendered, the judge or
prosecuting officer, or both, should look after its form and its
substance so far as to prevent a doubtful or insufficient find-
ing from passing into the records of the court, to create em-
barrassment afterward, and perhaps the necessity of a new
trial. The want of precaution in this matter has led to many
adjudications for which the occasion ought never to have been
furnished. Some of them will be considered in subsequent
sections, but it will be needless to examine them all.

§ 832. Says Archbold :} “The verdict in a criminal case is
either general, on the whole charge (which the jury are at
liberty to find in all cases, both upon the law and fact of the
case) ;? or partial, as to a part of the charge (as, where
the jury convict the defendant on one or more counts of the

guilty of obtaining the property by the
false representations in the two forged
letters, and that the parties would not
have parted with it without those let-
_ters had been used ; but we think that
he meant to pay for them,” — the judge
refused to receive this verdict, and told
the jury they must find the prisoner
guilty or not guilty. He thereupon gave
them farther instructions as to the law ;
and, on consultation, they brought in a
verdict of guilty. On a case reserved,
the second verdict was held to have
been rightly received, and the conviction
was sustained. “Iremember,” said Pol-
lock, C. B. “the case of aman who was
tried a long time ago for shooting the
Hammersmith ghost, as it was called.
The jury there returned a verdict of man-
slaughter. They were then addressed
by each of the three learned judges who
tried the case, whotold them that they
could not receive that verdict ; if the jury
believed the evidence, they must find the
prisoner guilty of murder; and, if they
did not believe it, they should acquit him.
After retiring for half an hour, the jury
came. back with a verdict of wilful mur-
der. No one ever suggested that the
course pursued by the judges in that
case was wrong. A judge has a right,

and in some cases it is his bounden
duty, whether in a civil or in a crim-
inal cause, to tell the jury to recon-
sider their verdict. He is not bound to
receive their verdict unless they insist
upon his doing so.” Reg. ». Meany, 1
Leigh & C, 213, 214, 216, 9 Cox C. C.
231. See also, to the like effect, The
State v. Underwood, 2 Ala. 744; Mc-
Gregg v. The State, 4 Blackf. 101;
Straughan v. The State, 16 Ark. 37,
In a North Carolina case, on the trial
of an indictment against two defend-
ants, the jury came into court, and inti-
mated an intention to acquit one of
them; and the court remarked, that, if
one was guilty, both were. Thereupon
the State’s attorney ordered the clerk to
enter a verdict against both, and the
jury were asked if any of them dis-
agreed to such verdict, to which the
only reply was a nod. It was held,
that a new trial ought to be granted,
on account of the irregularity in the
proceedings. The State v. Shule, 10
Tre. 153. And see The State v. Arring-
ton, 8 Murph. 571.

1 Archb. Crim. Pl. & Ev. 13th Lond.
ed. 146, 147,

2 Co. Lit. 228; 4 Bl. Com. 361.

[587]
§ 833 PRACTICE. [BOOK VI.

indictment, and acquit him of the residue ; or convict him on
one part of a divisible count, and acquit him as to the resi-
due); or special, where the facts of the case alone are found
by the jury, the legal inference to be derived from them being
referred to the court.

§ 8383. “A jury have a right, in all criminal cases, to find
a special verdict. Such verdict must state positively the facts
themselves, and not merely the evidence adduced to prove
them ; and all the facts necessary to enable the court to give
judgment must be found; for the court cannot supply by in-
tendment or implication any defect in the statement. Thus,
where the indictment alleged, that the defendant discharged
a gun against the deceased, and thereby gave him a mortal
wound, and the special verdict stated only that the defendant
discharged a gun, and thereby killed the deceased, not stating
in terms that it was discharged against him ; it was held that
the court could not give any judgment against the defendant.?
So where the indictment charged a robbery from the person,
and the proof was of a taking up of the prosecutor’s money
from the ground in his presence; and the special verdict,
though it stated that the defendant struck the money out of
his hand, and immediately took it up, was held insufficient,
because it did not expressly find that he was present at the
taking up.? But if the jury find all the substantial requisites
of the charge, they are not bound to follow in terms the tech-
nical language of the indictment. Thus, where the defend-
ant was charged with forgery of a bank note, and the special
verdict stated that he erased and altered it by changing the
word ‘two’ into ‘five,’ this was held sufficient. So where
an indictment for murder enumerated three wounds, and the
special verdict mentioned one only, this was held not to be a
fatal variance.© So where the evidence need not correspond
precisely with the statement in the indictment, the special ver-
dict will be good, although in the same respects it vary from

1 2 Hawk. P.C.c. 47,§.9; 2 East P. 2 Rex v. Plummer, J. Kel. 111.
C. 708, 784; see Rex v. Francis, 2 8 Rex v. Francis, 2 Stra. 1015,
Stra. 1015; Rex v. Royce, 4 Bur. * Rex v. Dawson, | Stra. 19.
2073; 1 Chit. Crim, Law, 643. 5 Rex »v. Morgan, 1 Bulst. 87.

[588]
CHAP. XLIV.] THE PETIT JURY, ETC. § 835

the statement in the indictment: as, where the fact is found
to have occurred, in a case of a transitory nature, at a different
place within the jurisdiction of the court; or, where time is
immaterial, on a day different from that stated in the indict-
ment.! If the verdict do not state the time when the facts
occurred, it seems the court will intend them to have hap-
pened in the order in which the jury have stated them.? The
jury need not, and indeed ought not, after stating the facts,
to draw any legal conclusion, for that is the province of the
court ; and, if they do so, and the inference drawn by them
is an erroneous one, the court will reject it as superfluous,
and pronounce nevertheless the judgment warranted by the
facts stated.” ®
§ 834. In the United States, special verdicts are rarely
found ; though this part of the English law is known with
us, and is sometimes practised upon. And it is always the
right of the jury, if they please, to bring in a general verdict
of guilty or not guilty, instead of rendering a special verdict.®
§ 835. But it often becomes necessary for the jury to find
what has already been described as a partial verdict against the
defendant.6 “Thus,” says Chitty,’ “they may convict him
upon one count of the indictment, and acquit him on the
charge contained in another ; or, upon one part of a count
capable of division, and not guilty of the other part; as, on a
count for composing and publishing a libel, the defendant may
be found guilty of publishing only.2 And, in general, where
from the evidence it appears that the defendant has not been
guilty to the extent of the charge specified, he may be found
guilty as far as the evidence warrants, and be acquitted as to
- the residue;® as, where he is charged with engrossing one
thousand quarters of wheat, and the evidence amounts to but

16 Co. 47; 2 Roll. Ab, 689. 5 Reg. v. Allday, 8 Car. & P. 136 ; 1

2 Rex v. Keite, 1 Ld. Raym. 138. Chit. Crim. Law, 637.

8 1 Chit. Crim. Law, 645. - 8 Ante, § 832.

4 McGuffie v. The State, 17 Ga. 497 ; 7 1 Chit. Crim. Law, 687, 638.
Jones v. The State, 2 Swan, Tenn. 399 ; 8 2 Camp. 583, 584, 585. ’

Peterson v. United States, 2 Wash. C. ® And see, as illustrating this matter,
C. 36; The State v. Duncan, 2 Mc- ante, § 228-236; and Crim. Law, I.
Cord, 129. § 804 - 823.

VOL. I. 50 [589]
§ 836 PRACTICE. [BOOK VI.

seven hundred! But, if a contract be described, it must be
proved as laid, and the jury cannot find a variant contract.?
And where the accusation includes an offence of inferior de-
gree, the jury may discharge the defendant of the higher crime,
and convict him of the less atrocious.2 Thus, upon an indict-
ment for burglariously stealing, the prisoner may be convicted
of the theft and acquitted of the nocturnal entry ;* upon an
indictment of murder, he may be convicted of manslaughter ; ®
on an indictment on the statute of stabbing,® he may be ac-
quitted of the statutable offence, and found guilty of feloni-
ous homicide ;7 on an indictment for stealing privately from
the person, he may be found guilty of larceny only ;® on an
indictment for grand, the offence may be reduced to petit,
larceny ;? robbery may be softened into felonious theft; and,
on an indictment founded on a statute, the defendant may
be found guilty at common law.” 4 These are propositions,
which, with their limitations, we have had occasion to con-
sider elsewhere.” .

§ 836. When we come to consider the form of this partial
verdict, we are met by a wilderness of cases, which have grown
up by reason of the neglect of our American courts and pros-
ecuting officers properly to instruct and assist the jury, in re-
spect to its form, at the time of its rendition. If these vol-
umes are suffered to do their proper work, they will prevent
questions of this sort arising often in the future ; and, if their
teachings are not permitted to become a power in our juris-
prudence, the author will feel no pleasure in helping officials

1 2 Hawk. P. C. e, 26, § 75.

22Hawk. P. C. c. 26, § 75; Lane,
19, 59, 60.

3 2 Camp. 583, 584, 585; 1 Leach,
36, 88; 2 East P. C. 516,517, 518; 2
Hale P. C. 352; 2 Hawk. P. C.c. 47,
§ 4, 5, 6.

* 1 Leach, 36, 88; 2 Hast P. C. 516,

518; 1 Hale P. C. 559, 560; 2 Hawk.

P. C. c. 47, § 6; Com. 478 ; 2 Hale P.

C. 302.

5 Co. Lit. 282 a@;2 Rol. 460; Cro.
Eliz. 296 ; 8 Dyer, 261 a; 2 Hale P. C.
292, 293,302 ; 2 Hawk. P. C.c. 47, § 4.

[590]

6 ] Jac. 1,¢. 8

7 Style, 86;2 Hale P. C. 302; 2
Hawk. P. C.c 47, § 6.

8 1 Leach, 240; 2 Hale P. C. 302;
2 Hawk P. C.c. 47, § 6.

® 2 Hale P. C. 302 ; 2 Stra. 1134 ; 2
Hawk. P. C. c. 47, § 6.

10 2 Hale P. C.302; 2 Hawk. P. C.
©, 47,4 6.

M2 Hawk. P. C. ¢. 46, § 178.
2 Crim. Law, I. § 796-823; ante,
§ 228 et seq.
CHAP. XLIV.] THE PETIT JURY, ETC. § 837

out of difficulties which they would not listen to his warnings
to avoid. Where the finding is a general one of guilty on
one or more of the counts, and not guilty on the others, there
is no difficulty in so designating the counts as to render the
verdict certain and plain. One obvious mode is to refer to
the counts by number.! But if, for instance, there are counts
for larceny, and counts for embezzlement, and the verdict is
“ cuilty of embezzlement,” &c., the meaning of the jury can-
not be misapprehended.?

§ 837. But it sometimes occurs, that the jury find a ver-
dict of guilty upon one count, or one substantive charge in
the indictment, and are silent with respect to the rest. It
seems plain that the court ought to require the jury to pass
upon the whole indictment.’ Still, if this is not done, it is
difficult to resist the conclusion that the verdict will sustain a
judgment upon the part concerning which it is distinct ; and,
if it is a judgment of conviction, there is no way known to the
law by which the prisoner can be put upon his trial for the
rest. Neither, it is believed, can he be indicted over again’
for the same matter. Probably, if such a verdict is set aside
on application of the defendant, the better view is that the

second trial may proceed upon the whole indictment.

The

entire matter of this section is one upon which the opinions
of courts have been quite conflicting.*

1 Girts v. Commonwealth, 10 Harris,
Pa. 351; Oxford v. The State, 33 Ala.
416.

2 Guenther v. People, 24 N. Y. 100 ;
Page v. Commonwealth, 9 Leigh, 683.

3 In Ohio it was held, that, where
there are three counts in an indictment,
and the jury say they find the defend-
ant not guilty on the first, and cannot
agree on the others, the court may prop-
erly refuse to receive the verdict. Said
Wood, J. : “ A verdict in either a civil
or criminal case must be considered an
entire thing. It must respond to the
whole declaration, and to every count
in the indictment, or the court cannot
legally receive it as the verdict of the
jury.” Hurley v. The State, 6 Ohio,

399, 404. It occurs to me, that, while
this doctrine is correct in law, it would
also be w correct practice, if the jury
could agree upon a verdict of guilty as
to one count or one charge, and could
not agree concerning the rest, to per-
mit the prosecuting officer, if he chose,
to enter a nol. pros, as to the part of the
indictment on which they could not
agree, and then accept the verdict as to
the rest. .

4 See, upon this subject, Crim. Law,
I. § 850; The State v. Phinney, 42
Maine, 384; Guenther v. People, 24 N.
Y. 100; Latham o. Reg. 9 Cox C. C.
516,10 Jur. n. 8. 1145; Common-
wealth v. Wood, 12 Mass. 313; Stephen
uv. The ‘State, 11 Ga. 225, 241; Nancy

[591]
§ 839 PRACTICE. [BOOK VI.

§ 838. In.those States and those particular cases in which
the law submits the amount of punishment, to be inflicted on
the defendant, to the determination of the jury, the verdict,
when it is one of guilty, must specify the punishment, else it
will be defective and insufficient... If it sets forth the punish-
ment, in a case in which this is not within the province of
the jury, this part of the indictment will be rejected as sur-
plusage, and the finding will be adjudged adequate.? Yet if
the jury assess a larger punishment than the law author-
izes, the finding becomes void; and the prosecuting officer
cannot cure the defect by remitting the excess of punishment,
for the law gives him no power to make such remission.®

§ 839. The form of the verdict, in some particular cases, will
be considered in connection with our statements of the pro-
cedure generally in those cases, in our second volume. Arch-
bold,* speaking of special verdicts, says, that such a verdict
“ig not amendable as to matters of fact ; but a mere error of
form may be amended, even, as it seems, in capital cases, in
order to fulfil the evident intention of the jury, where there
is any note or minute to amend by.”® It would seem, on
principle, that, as to amendment, the verdict of a petit jury
stands on very much the same ground as the finding of a
grand jury. Points which illustrate this analogy are the
following two: If the indictment charges the offence to have
been committed by “ Richard,” and the jury find “ Rich’d ”

 

v. The State, 6 Ala. 483; Hayworth v.
The State, 14 Ind. 590; Wilson v. The
State, 20 Ohio, 26 ; The State v. Val-

entine, 6 Yerg. 533; Girts v. Common-:

wealth, 10 Harris, Pa. 351; Rex wv.
Hayes, 2 Ld. Raym. 1518; People v.
Davis, 4 Parker C. C.61 ; The State».
Sutton, 4 Gill, 494.

1 Commonwealth v. Scott, 5 Grat.
697; Mills v. Commonwealth, 7 Leigh,
751. See Commonwealth v. Frye, 1 Va.
Cas. 19; People v. Littlefield, 5 Cal.
355 ; The State v. Rohfrischt, 12 La.
An, 382.

2 Cropper v. United States, Morris,
259. f

[592]

8 Allen v. Commonwealth, 2 Leigh,
727.

* Archb. Crim. Pl. & Ev. 13th Lond.
ed. 148.

5 2 Hawk. P. C.c. 47, § 9; Rex ».
Hayes, 2 Stra. 843, 844 ; Rex v. Hazel,
1 Leach, 4th ed. 368, 382; Rex ».
Woodfall, 5 Bur. 2661. A special ver-
dict cannot be amended without the
consent of both parties; but a venire
Jacias de novo may be awarded, in order
to complete the verdict. United States
v. Bird, 2 Brev. 85. See also, Rex v.
Keat, 1 Salk. 47, Skin. 666 ; Bold’s
case, 1 Salk. 53.

® Ante, § 386 et seq.
CHAP. XLIV.]

THE PETIT JURY, ETC. § 841

guilty, the verdict is sufficient.! But, on the other hand, if
the indictment is against Joseph McBride, and the jury find
James McBride guilty, this will not sustain a judgment, and
the mistake cannot be corrected by amendment.”

§ 840. “If”’ continues Archbold, “three offences are
charged in the indictment, and the special verdict state evi-
dence which applies to two of them only, the court may ad-
judge the defendant guilty of those two, and enter an acquit-
tal as to the residue.” ? In like manner, it was held in a
Vermont case, that, where the prisoner is charged with dis-
tinct offences in different counts, and the jury return a gen-
eral: verdict of guilty ; yet it appears that no evidence was
given at the trial, tending to prove one of the offences
charged ; the court of review will not arrest the sentence by
granting a new trial, but will render judgment on those
counts only, upon which the conviction was properly had.
“ This,” it was observed, “ is in analogy to cases where there
has been a general verdict of guilty on several counts, when
a part of them are bad.” * Another way, however, to cure
such an error as this, is for the prosecuting attorney to enter
a nol. pros. as to the defective count.5

§ 841. Where the indictment is in several counts, some of
which are good and others bad, and there is a general verdict
of guilty rendered upon the whole, it is the clear and uniform
American doctrine that this will sustain a judgment and sen-
tence as for so much of crime as the indictment adequately
sets out.6 Perhaps the doctrine is not quite so in England

1 Poindexter v. Commonwealth, 6 C. 24. See The State v. Posey, 7 Rich.

Rand. 667. 484,

2 The State v. McBride, 19 Misso.
239. See ante, § 311.

8 Rex v. Hayes, 2 Stra. 843.

* The State v. Bugbee, 22 Vt.32. So,
in North Carolina, where there are three
counts in a bill of indictment, and tes-
timony is offered with respect to one
only, a verdict, though general, will be
presumed to have been given on that
count to which the testimony was appli-
cable. The State v. Long, 7 Jones, N.

50 *

5 The State v. Whittier, 21 Maine,
341.

6 Brown v. The State, 5 Eng. 607;
Parker v. Commonwealth, 8 B. Monr.
30; The State v. Jennings, 18 Misso.
435; Baron v. People, 1 Parker C. C.
246; The State v. Pace, 9 Rich. 355;
Isham v. The State, 1 Sneed, 111; The
State v. Shelledy, 8 Iowa, 477; Hudson
v. The State, 34 Ala. 253 ; Roberts v.
The State, 14 Ga. 8 ; Commonwealth v,

[593]
§ 848 PRACTICE. [BOOK VI.

since the case of O’Connell, but it does not concern us to in-
quire what it is there.?

§ 842. As already intimated, there ought never to be a de-
fect in the verdict. If the jury bring in a defective verdict,
it is in the power equally of the prisoner and the prosecuting
attorney to have it set right; and, suppose the prisoner
chooses not to interfere, and suffers a defective verdict to be
entered, as his interest would always prompt him to do, in
preference to a verdict of guilty in due form, he, by thus fail-
ing to interpose, waives his objection to being put a second
time in jeopardy for the same offence.? In all such cases,
therefore, the verdict is simply set aside as a nullity, and a
new trial is ordered. The court cannot, instead of this,
make the verdict, or the judgment, what it thinks it ought
to be.*

§ 848. There remain some points in relation to the rendi-
tion of the verdict; but, as these are the same in criminal
cases as in civil, it is deemed best not to discuss them here.

Howe, 13 Gray, 26; Buck v. The State,
1 Ohio State, 61; The State ». Mont-
gomery, 28 Misso. 594; Poole v. The
State, 3 Brey. 416 ; Stoughton v. The
State, 2 Ohio State, 562; Turk v. The
State, 7 Ohio, 2d pt. 240; Bulloch »v.
The State, 10 Ga. 47; Stone vo. The
State, Spencer, 404; People v. Gilkin-
son, 4 Parker C. C. 26 ; United States
». Burroughs, 3 McLean, 405 ; The
State v. Miller, 7 Ire. 275; The State
v. Connolly, 3 Rich. 337; Curtis v.
People, Breese, 197 ; West v. The State,
2 Zab. 212; People v. Curling, 1 Johns.
320; The State v. Bean, 21 Misso. 269 ;
United States v. Burns, 5 McLean, 23 ;
The State v. Burke, 38 Maine, 574;
Hazen v. Commonwealth, 11 Harris,
Pa. 355; The State v. Bean, 19 Vt.
580. See, for a possible qualification
of the doctrine, Mowbray v. Common-
wealth, 11 Leigh, 643; Clere v. Com-
monwealth, 3 Grat. 615.

[594]

1 In Archb. Crim. Pl. & Ev. 13th
Lond. ed. 62, the matter is stated thus:
“Tf, where there are several counts
charging different offences in law, the
judgment be entered up generally upon
all, that the defendant, ‘ for his said of-
JSences,’ be adjudged, &c., and it appears
that any count was bad in law, the
judgment will be reversed on error.
O’Connell v. Reg. 11 Cl. & F. 155.
To prevent this, it is now usual, in cases
of misdemeanor, to pronounce and en-
ter up the same judgment separately on
each count of the indictment.”

2 Crim. Law, I. § 844.

8 Commonwealth v, Hatton, 3 Grat.
623 ; Campbell v. Reg. 11 Q. B. 799 ;
Commonwealth v. Scott, 5 Grat. 697;
Commonwealth v. Smith, 2 Va. Cas.
327; Webber v. The State, 10 Misso.
4

4 The State v. Curtis, 6 Ire. 247.
CHAP. XLY.] NEW TRIALS. § 847

CHAPTER XLV.
NEW TRIALS.

§ 844. Tue doctrine of new trials pervades alike the civil
and criminal departments of our law; and forms, of itself, a
very considerable title. It will not be wise for us, in this
work devoted merely to the criminal department, to enter
upon the matter at large. A few points, only, require con-
sideration here.

§ 845. Various points relating to this matter were stated in
the work on the Criminal Law.1 And it was there seen, that,
when there has been a verdict rendered acquitting the pris-
oner, the State cannot have a new trial, however contrary
to the law and the evidence the verdict may have been.?
This is the general doctrine ; and, if there are exceptions, the
reader will find them stated in the work on the Criminal Law.
Applications, therefore, for a new trial come, not from the
prosecutor, but from the defendant.

§ 846. There are, perhaps, some differences of doctrine,
with respect to new trials, between criminal and civil cases ;
though, as a general proposition, the practice is the same
in both.2 To trace the line of distinction through its full
length would require, it may be, an extensive examination
of the whole doctrine of new trials; or, it may be, the line
would be found to be short, and as uncertain as it is short.
The decisions relating to this matter are not harmonious;
yet attention may be called to one or two points here.

§ 847. According to the decisions in Kentucky, the rule
that a judgment shall not be disturbed which is right on all
the testimony, applies only to civil cases, not to criminal ;

1 Crim. Law, I. § 841, 846, 847, 851, % Grayson v. Commonwealth, 6 Grat,
865 - 867. 712.
2 The State v. Baker, 19 Misso. 683.

[595]
§ 848 PRACTICE. [BOOK VI.

therefore, in the latter, whenever the court rejects evidence
which has a direct. bearing on the question of guilt or inno-
cence, and the defendant is convicted, a new trial should be
granted on his application. ‘“ But,” observed Simpson, J.,
“it is contended that the judgment is right, upon all the tes-
timony, even taking that which was rejected into considera-
tion, and therefore it should not be disturbed by this court.
This argument, although applicable to a civil action, where
‘the court decides both matters of law and fact, cannot be
allowed any weight in a criminal case, where the matters of
fact are to be passed upon by the jury exclusively, in the case
of a verdict of acquittal, and where, even in the case of a
judgment of conviction, questions of law alone are decided by
this court.” 1 In like manner, in Tennessee, if incompetent
evidence has been received in criminal cases, a new trial will
be awarded the defendant even though it appears to the court,
that, on the whole, the verdict is correct. Said Green, J.:
“ The rule insisted on by the attorney-general, that, although
incompetent evidence was received, yet, if the court see that
there was enough independent of such evidence to convict the
prisoner, it will not disturb the verdict, does not‘prevail in
this State. It has been uniformly held here, that, if incom-
petent evidence has been received that might have influenced
the jury, a new trial will be awarded ; for it cannot be seen
how far such evidence did influence them, and we cannot say
that the prisoner has been convicted by a jury of his peers, on
evidence competent for that purpose.”? Likewise, in Ten-
nessee, the rule which prevails in civil causes, that the “ court
will not grant a new trial upon the facts, unless the jury shall
appear to have been guilty of great rashness, does not apply
to criminal cases.” But whenever, in a criminal case, the
verdict appears not to have been warranted by the evidence,
a new trial will be granted.?

§ 848. In another Tennessee case, Turley, J. observed :
“We have repeatedly had occasion to assert, that, in criminal

1 Cornelius », Commonwealth, 15 B. 8 Dains v. The State, 2 Humph. 439 ;

Monr. 539, 547. 8. Pp. Bedford v, The State, 5 Humph.
2 Peek v. The State, 2 Humph. 78,88. 552.

[596]
CHAP. XLY.] NEW TRIALS. § 849

cases, we will weigh the evidence; and, if it preponderates
against the verdict, grant a new trial. And we do this out of
the great regard in which the law holds life and liberty ; de-
claring, as it does, that, in every instance where either the
one or the other is sought to be assailed by a criminal prose-
cution, the guilt of the person charged shall be established
beyond a reasonable doubt. In administering the law with
this benign provision in favor of criminals, it would be mock-
ery in a court of last resort to hold, that, upon an applica-
tion for a new trial, it would not weigh the evidence, but hold
the verdict of the jury conclusive of the criminal’s guilt, if
there were any proof by which it could be sustained. This
would be to place no higher estimate upon life and liberty
than upon property, and to subject them to the same rule in
relation to this particular.” 1 .

§ 849. It is not proposed to collate the American authori-
ties here, for the purpose of determining to what extent these
enunciations are expressive of the American doctrine. When
the time comes, the author will probably examine this matter
in another connection. Meanwhile let it be .observed, that
the protection of the courts is, according to the general prin-
ciples of our jurisprudence, cast especially over men who are
indicted for high crimes. And it is not easy to see, how,
consistently with this doctrine, a judge, having it legally in
his power to set aside a verdict, can sentence a defendant to
imprisonment or to death, when, for any reason which presents
itself judicially to his understanding, his judgment refuses to
concur with the jury in the conclusion of guilt..

1 Leake vo. The State, 10 Humph. Humph. 479; Cochran v. The State, 7
144; 8,e. Copeland » The State, 7 Humph. 544,
: [597]
§ 850 PRACTICE. [BOOK VI.

CHAPTER XLVI.

THE ARREST OF JUDGMENT.

§ 850. In consequence of recent legislation, both in Eng-
land and in most of our States, the motion in arrest of judg-
ment has become less available to defendants than it was for-
merly. The following is the more material part of what
Chitty, who wrote while the matter stood in England as it now
stands under the common law of our States, says of this mo-
tion: 1 “In the King’s Bench, at any time between the con-
viction and the sentence, or immediately at the assizes, the
defendant may move the court in arrest of judgment.? The
causes on which this motion may ‘be grounded, although nu-
merous, are confined to objections which arise upon the face
of the record itself,? and which make the proceedings appar-
ently erroneous; and, therefore, no defect in evidence, or im-
proper conduct on the trial, can be urged in this stage of the
proceedings. Thus, it is no ground of arrest of judgment,
that the sheriff, by whom the panel was returned, is the.pros-
ecutor, however strong a reason it would have been of chal-
lenge. But any want of sufficient certainty in the indictment

1 1 Chit. Crim. Law, 661 - 664.

25 T, R.445; 4 Harg. St. Tr. 779 ;
11 Harg. St. Tr. 289 ; Comb. 364 ; 2
Hawk. P. C. ¢. 48,§1; 4 Bl. Com. 375.
See proceedings, 11 Harg. St. Tr. 289.
See Tidd, 8th ed. 949-961.

8 The State v. Heyward, 2 Nott &
McC. 312; Commonwealth v. Edwards,
12 Cush. 187; Peter v. The State, 11
Texas, 762. Therefore, where the in-
troduction to the indictment alleges that
the grand jury were sworn, it is not
competent, on a motion in arrest of
judgment, to disprove this recital by
testimony aliunde, Terrell v. The State,
9 Ga. 58.

[598]

* 4 Bur. 2287 ; 1 Ld. Raym. 231; 1
Salk. 77, 315; 1 Sid.65; Com. Dig.
Indictment, N.

5 Rex v. Sheppard, 1 Leach, 4th ed.
101. So it is not an objection which
can be taken in arrest of judgment, that
the traverse jury were not summoned
within the time specified by statute.
Hurley v. The State, 6 Ohio, 399. It
is the same, also, of an objection to the
summoning of the grand jury, Stone 2.
People, 2 Scam. 326 ; or to the service of
the warrant on which the defendant was
arrested, Commonwealth v. Gregory,
7 Gray, 498; of the refusal of the ex-
amining court to grant a continuance,
CHAP. XLVI. ]

ARREST OF JUDGMENT. § 851

respecting the time, place, or offence, which is material to
support the charge, as well as the circumstance of no offence
being charged, will cause the judgment to be arrested.’’}
And it may be added to what Chitty here says, that, if the
verdict does not conform to the indictment, judgment will be
arrested.2 So, as a more general proposition, whenever the
facts appear on the record, the question of the defendant’s
right to be discharged from further prosecution can be raised
by a motion in arrest of judgment.*

§ 851. “ Nor,” continues Chitty, “is the ground of arrest-
ing the judgment confined to the indictment alone ; it may be
found in any part of the record which imports that the pro-
ceedings were inconsistent or repugnant, and would make the
sentence appear irregular to future ages. Thus, the omission,
in the caption of the indictment, of the words ‘then and there,’
in the statement of the swearing of the jury, was formerly held
fatal ; because, without them, it did not appear that the oath
was taken in the county where the offence is alleged to have
been committed. But the law is now otherwise.t And it
will be no ground for arresting the judgment, after special
verdict removed by certiorari, that the judge who tried tlie
prisoner is not stated to have been of the quorum, that no is-
sue appears on the record,® or that the authority of the jus-

Morris v. Commonwealth, 9 Leigh,
636 ; of omitting the examination alto-
gether, Angel v. Commonwealth, 2 Va.
Cas. 231; of a variance between the
presentment and indictment, Common-
wealth ». Chalmers, 2 Va. Cas. 76 ;
Wells v. Commonwealth, 2 Va. Cas.
333 ; and of an omission to read the
indictment to the jury, Wright ». The
State, 18 Ga. 383.

14 BL Com. 875; 3 Bur. 1901; 1
East. 146; The State v. Gove, 34 N.
H. 510.

2 The State v. Lohmdn, 3 Hill, 8. C.
67. :

8 Atkins v. The State, 16 Ark. 568.

* 2 Stra. 901; Com. Dig. Judgment,
N. And see The State v. Nixon, 18
Vt. 70; The State v. Thibeau, 30

Vt. 100 ; ante, § 155, note, Vermont. A
motion in arrest of judgment can be sus-
tained only by matter apparent on the
record, and cannot be supported by mat-
ter which becomes part of the record
after the motion has been overruled.
Heward v. The State, 13 Sm. & M.
261. The notice, served on a defend-
ant indicted for barratry, forms no part
of the record, and furnishes nv ground
for a motion in arrest of judgment. The
State v. Chitty, 1 Bailey, 379. Ina
criminal case, a motion in arrest of
judgment opens the entire record for
examination, and reaches any defect
apparent therein. Gardner v. People,
3 Scam. 83.

5 There are some American cascs,
however, which hold, that the non-juin-

[599]
§ 852 PRACTICE. [BOOK VI.

tices of jail delivery is not stated ; for there is no occasion to
set forth the commission at all by virtue of which the trial
proceeded, there is no necessity for an issue on a capital in-
dictment, and the judges can be assigned by no one but his
Majesty... Nor, where the original indictment was against
three, and the proceedings are removed as to one of them
only, is it any defect that no notice is taken of the other de-
fendants.2 It seems, however, to be a general rule, that, as
criminal proceedings are not aided after verdict by any of the
statutes of jeofails or amendments, any objection which would
have been fatal on demurrer,’ will be equally so on arrest of
judgment; and it is therefore usually reserved till this time,
in order to obtain the chance of an acquittal.

§ 852. “The defendant may move at any time in arrest of
judgment, before the sentence is actually pronounced upon
him ;* and, even when the defendant waives the motion, yet,

der of issue on the record is a suffi-
cient ground for the arrest of judgment.
The State v. Monaquas, T. U. P. Charl.
16; The State v. Roberts, T. U. P.
Charl. 30; The State v. Fort, 1 Car.
Law Repos. 510. See post, c. li.

1 4 Bur. 2084, 2085.

2 4 Bur. 2086.

8 Such matter only can be alleged, in
arrest of judgment, as would be suffi-
cient to sustain a demurrer or a plea in
bar. The State v. James, 2 Bay, 215.
A mistake in the defendant’s name,
which is matter pleadable only in abate-
ment, cannot be taken advantage of by
motion in arrest of judgment. The
State v. Thompson, Cheves, 31; Scull
v. Briddle, 2 Wash. C.C. 200. So, as-
suming it to be a good objection to an
indictment that the description of other
persons than the defendant is not pre-
cise, still the objection must be ‘taken
advantage of by demurrer, and not af-
ter verdict. The State » Crank, 2
Bailey, 66. All mere formal objections
to an indictment should be made before
pleading. Guykowski v. People, 1
Scam. 476. And see The State »v.
Holmes, 28 Conn. 230; People v. Wal-
lace, 9 Cal. 30 ; People v. Cox, 9 Cal.

[600]

32. The verdict in criminal-cases does
not cure substantial defects in indict-
ments, but it will cure a defect no more
‘important than the omission to connect
necessary and dependent members of
the same sentence by their appropriate
copulatives. And Woodward, J. ob-
served: “ A fault which would have
been fatal on demurrer cannot be cured
by verdict, and may be taken advan-
tage of by motion in arrest of judgment,
or by writ of error ; but surely this con-
junction would have been implied as
against a general demurrer, and there-
fore it may be after verdict. The ver-
dict in criminal cases does not cure sub-
stantial defects in the indictment, nor
obviate the necessity for those formal
and technical phrases which, sanctioned
by immemorial usage, are not to be
omitted in the description of the offence.
But it may cure a defect no more im-
portant than the omission to connect ne-
cessary and dependent members of the
same sentence by their appropriate cop-
ulatives.” Lutz v, Commonwealth, 5
Casey, 441, 444.

45 T.R. 445; 2 Bur, 801; 2 Stra.
845.
CHAP. XLVI. ] ARREST OF JUDGMENT. § 858

if the court upon a review of the whole case are satisfied that
he has not been found guilty of any offence in law, they will
of themselves arrest the judgment.1 But ifthe sentence is
once pronounced, though before the actual entry of the judg-
ment, the court are not bound to attend at all to a motion of
this‘nature, even though a formal error should be discovered,
sufficient to reverse the proceedings,” but the defendant is left
to his writ of error ; though, as we have seen, the court may,
without any motion, arrest the judgment,’ and may alter
their sentence any time during the same term.* It should
seem that the court may, if they think fit, arrest the judg-
ment, notwithstanding it has been given. A motion in arrest
of judgment, however, cannot ever be entertained, after judg-
ment against the defendant on demurrer.5....If the judg-
ment is ultimately arrested, all the proceedings will be set
aside, and judgment of acquittal will be given ; but it will be
no bar to a subsequent indictment, which the prosecutor may
immediately prefer.”® And the prisoner is not entitled as of
course to his discharge ; for he may be held to answer to any
new indictment which may be brought against him.’

§ 853. To compel parties under indictment to take their
objections more promptly than the common-law rules require,
statutes have been enacted in various of our States, the effect
whereof is to modify greatly the foregoing doctrines. Thus,
in Massachusetts: ‘“ Any objection to a complaint, indict-
ment, or other criminal process, for any formal defect appar-
ent on the face thereof, shall be taken by demurrer or motion
to quash, assigning specifically the objection relied on, before
a judgment has been rendered by a trial justice or a police
court, or a jury has been sworn in the Superior or Supreme
Judicial Court. No motion in arrest of judgment shall be
allowed for any cause existing before verdict, unless the same
affects the jurisdiction of the court.” ® And in other States

1 1 East, 146; 11 Harg. St. Tr. 299. 8 3 P. Wms. 439; 4 Co. 45; Com.
2 3 Bur. 1901-1903; Com. Dig. In- Dig. Indictment, N; 4 Bl. Com. 375 ;

dictment, N. The State v. Thomas, 8 Rich. 295.
3 | Hast, 146. 7 The State v. Holley,1 Brev. 35 ;
4 6 East, 328; 1M. &S. 442. ante, § 715
5 2 Ld. Raym. 1221. 8 Mass. Stat. 1864, c. 250, § 2, 3.

VOL. I. 51 [601]
§ 853

PRACTICE.

[BOOK VI.

there are statutes approaching more or less closely the sweep-

ing terms of these provisions.?

1 Thus, in Louisiana, “every objection
to any indictment for any formal defect,
apparent on the face thereof, shall be ta-
ken by demurrer or motion to quash
such indictment, before the jury shall be
sworn, and not afterwards.” The State
v. Boudreaux, 14 La. An. 88. Yet the
courts hold, that this does not apply to
matters of substance essential to the
very existence of the offence ; for, where
such objections exist, the judgment may
be arrested. The State v. Nicholson,
14 La. 785. In a Georgia case, Mc-
Donald, J. stated the statutory law of
the latter State, as follows: ‘ All ex-
ceptions which go merely to the form of
the indictment, must be made before
trial. Cobb. 833 ; Penal Code, par. 295.
If the prisoner on being arraigned shall
demur to the indictment, the demurrer
must be made in writing. Ib. par. 304.
If the indictment be defective, the party
is not entitled to a new trial, on that
account, under the Act of 1854, unless
he made his exception to it in the time
and in the manner pointed out by stat-
ute. The presiding judge should over-
rule every exception not made in this
manner; and it is only in cases where
the exception is illegally overruled, that
the Act requires the court to grant a
new trial to the applicant.” Wise v.
The State, 24 Ga. 31. Therefore the
objection that the indictment concludes
erroneously, if valid, cannot be taken
in arrest of judgment. Camp. v. The
State, 25 Ga. 689. In Maryland, the
statute provides, “that no indictment
or presentment for felony or misde-
meanor shall be quashed, nor shall any
judgment upon any indictment for fel-
ony or misdemeanor, or upon any pre-
sentment, whether after verdict, by con-
fession, or otherwise, be stayed or re-
versed |for certain specific causes men-
tioned], nor for any matter or cause
which might have been a subject of de-
murrer to the indictment.” Conse-

[602]

quently, since the defences that the act
alleged in theindictment is no offence,
and that the enactment on which the in-
dictment is framed is unconstitutional,
may be raised by demurrer, they can-
not be taken on motion in arrest of judg-
ment, or in any other like way. Cow-
man ». The State, 12 Md. 250. Seealso,
Kellenbeck v, The State, 10 Md. 431,
So, in an indictment for murder, a wrong
allegation of venue ; a failure to desig-
nate the prisoner as a free negro ; a trans-
position of the names of the prisoner and
the murdered man, whereby the crime
appears to be charged upon the latter ;
and an incorrect statement of the name
of the prisoner, — are all matters which
must be taken advantage of by the de-
murrer or not atall. And a curious
working of this statutory provision is
seen in the following point: When,
therefore, a prisoner in such a case is
found by the jury “not guilty, by rea-
son of insufficiency of the indictment,”
he may plead autrefois acquit to a new
indictment for the same offence; and
such new indictment will be barred by
reason of what was done under the for-
merone. That the plea of former ac-
quittal must in this case prevail, was
shown by Le Grand, C. J. thus: “It is
clear that each and every of the ob-
jections urged against the first indict-
ment was ‘ matter or cause which might
have been a subject of demurrer’; and,
the prisoner electing not to demur, but
to go to trial on the issue of not guilty,
if the jury had returned a verdict of guil-
ty against him, the judgment on such
finding could not have been ‘stayed or
reversed.’” The State v. Reed, 12 Md.
263,273. And see Wedge v. The State,
12 Md. 232. Some other points, inter-
esting in this connection, are the follow-
ing: In Missouri the Revised Code pro-
vides, that no criminal judgment shall
be arvested for any defect or imperfec-
tion which does not prejudice the sub-
CHAP. XLVI] ARREST OF JUDGMENT. § 855

§ 854. The question of the harmony of some of the stat-
utes of this sort with provisions to be found in the constitu-
tions of many or most of our States, may yet become an
interesting one. There is no doubt, that, as a general propo-
sition, it is competent for legislation to prescribe the time and
method in which particular objections. shall be taken ; and,
if a defendant chooses not to avail himself of the law’s path
to secure his rights, he shall not strike out a way of his own.
Still, if it is competent for legislation to provide, that, the
defendant not objecting, the grand jury may allege certain
things which do not constitute a crime in law, and the court
may sentence the defendant to suffer therefor such a course
of imprisonment, for instance, as is equivalent to what is
provided as a punishment for crime, this can be only in a
State whose constitution makes no provision for the orderly

conduct of criminal or other judicial business.

It will not

be well here to anticipate what may hereafter come before

the courts.

§ 855. The form of the motion in arrest is not much dis-

stantial rights of the defendant upon
the merits; and it was held that this
should at least be limited in its oper-
ation to defects of the kind which are
enumerated therein. ‘The section of
the statute in which this provision oc-
curs, commences by enumerating a great
number of trivial defects, such as the
omission of defendant’s title, the words
‘with force and arms,’ the time when
the offence was committed, a proper
venue, &c., and then concludes with the
general clause.” The State ». Pember-
ton, 30 Misso. 376. In this State it has
been held, that the constitutionality of
@ statute creating a county cannot be
examined on a motion in arrest of judg-
ment for a misdemeanor. Said Ryland,
J.: “ There is nothing on the record to
raise or support this question, and it
strikes us as a novel proceeding for any
one of the courts of this State to under-
take to kill off any one of the counties
of the State established by law, by a

mere motion in arrest of judgment in a
criminal case for a misdemeanor.” The.
State v. York, 22 Misso. 462. And see
The State v. Paul, 5 R. I. 185; The State
vo. Keeran, 5 R. I. 497. Under the Ken-
tucky Criminal Code, the only ground
upon which a judgment can be arrested
is,that the facts alleged in the indictment
are not a public offence within the juris-
diction of the court. Walston v. Com-
monwealth, 16 B. Monr.15. The ques-
tion of jurisdiction, not taken before
trial, is not open on motion in arrest.
Tipper v. Commonwealth, 1 Met. Ky. 6.
In Indiana, the motion in arrest of judg-
ment is now governed solely by statute,
and embraces only two points: 1. The
jurisdiction of the court. 2. Whether
the facts stated constitute » public of-
fence. Dillon v. The State, 9 Ind. 408.
See Hare v. The State, 4 Ind. 241. As
to England, see Reg. v. Law, 2 Moody
& R. 197 ; Reg. v. Ellis, Car. & M. obs

[603]
§ 855 PRACTICE. _ [BOOK VI.

cussed in the books. Perhaps the following may be judi-
cious : —

“ And now, after verdict and before sentence, comes the said B, and
prays that judgment herein may be arrested ; and for cause says, that [&c.,
setting forth the grounds of the motion] ; and for other manifest defects in
the record aforesaid appearing.”

[604]
CHAP. XLVII.] THE SENTENCE. § 858

CHAPTER XLVII.

THE SENTENCE.

§ 856. IN the work on the Criminal Law we had occasion
to consider the punishment which the law prescribed for the
various offences, so far as it was deemed best to discuss a
matter which is mainly regulated by statutes in our several
States; together with those collateral consequences which
proceed, by operation of law, from the conviction and from
the judgment of the court following. It remains for us here
to take a view of some points which are connected more im-
mediately with the procedure.

§ 857. We have seen, that, when the indictment contains
several counts, it is the theory of the law that each count is
for a separate offence ; while, in the actual legal practice, as
established where the common-law rules prevail, the indict-
ment in fact covers but a single offence, or at most a single
transaction, if it is for felony ; though, when it is for misde-
meanor, it sometimes covers more than one transaction and
sometimes it does not.1 Sometimes, also, a part of the counts
are bad, while the residue are good, and there is a general
verdict covering the whole; yet, according to the American
doctrine, and even, as it seems, the English, this finding of
the jury will sustain a judgment rendered thereon of some
sort.2 But it may embarrass the court in some of these cir-
cumstances to render a judgment which shall be both good
in itself, and which shall appear good if afterward it is exam-
ined on a writ of error.

§ 858. If, according to the doctrine prevailing in a part of
our States, the punishment is less than the law prescribes,
the defendant cannot take advantage of the error ;? while,

1 Ante, § 179-184, 197 -204. 3 Crim. Law, I. § 711-713.

2 Ante, § 841.
51* [605]
§ 860 PRACTICE. [BOOK VI.

according to the doctrine prevailing in other of the States, he
can have the judgment vacated for such an error ;} as, every-
where, he can have it set aside if the error is to his preju-
dice.2 But in some of our States the statutes fix only the
maximum of punishment, leaving the court to go as low as it
sees fit; then, of course, the judgment can never be errone-
ous because the punishment is too small in degree, provided
it is of the kind directed by the statute.

§ 859. When the judge who presided at the trial is to pro-
nounce the sentence, he, knowing what the evidence was,
sees whether or not there should be sentence for more than
one crime, and he does not need the aid of proofs specially
produced; and, where sentence is to follow a plea of guilty,
he can be made acquainted with the facts by affidavits or oral
evidence, Thus, in one way or another, the judge can always
be put into a situation to render an intelligent sentence. He
must, consequently, take care of two points, — first, that the
sentence conforms to the law in fact; secondly, that it shall
so appear on the examination of the record.

§ 860. To accomplish these objects, if he sees that a part
of the counts in the indictment are bad, he will pass judg-
ment only on the good counts.? Yet if, not observing the
defect, he passes judgment on the whole indictment, it will
not be erroneous, provided there is sufficient of good allega-
tion to sustain the judgment.* But if there is a good count
and a bad count, and the judgment exceeds what the law
permits for the good one alone, it will be erroneous.5 So, if
there is a single count, and it contains aggravating matter
defectively alleged, the judgment may be such as the law
awards for the part of the crime which is well charged ; but
it will be erroneous if it is for the higher punishment pre-

575,

1 Haney v. The State, 5 Wis, 529.

2 Crim. Law, I. §711-713.

8 Manly v. The State, 7 Md. 135;
Shaw v. The State, 18 Ala. 547 ; The
State v. Brown, 3 Strob. 508 ; Wash ».
The State, 14 Sm. & M. 120. And see
Baker v. The State, 30 Ala. 521.

* Boose v. The State, 10 Ohio State,

[606]

And see Bennett v. The State, 8
Humph. 118; People ». Stein, 1 Parker
C. C. 202; The State v. Pace, 9 Rich.
355.

5 The State v. Bean, 21 Misso. 269.
And see Buck v. The State, 1 Ohio
State, 61.
CHAP. XLVII.] THE SENTENCE. § 862

scribed by the law for the aggravated offence, which the plead-
er intended to set out. In such a case, the court should not
arrest the judgment, but impose the milder sentence.!

§ 861. There are other cases where the matter is very
simple when the question is, what judgment is to be pro-
nounced ; though not so plain when the sufficiency of the
judgment comes up for examination on a writ of error.
Thus, if the indictment contains two counts, one for a mere
assault and battery, and the other for the like assault and
battery aggravated by the intent to kill, and the two appear
on the evidence to relate to one transaction, and there is a
general verdict of guilty ; here, the one count is but an ap-
pendage to the other in which it merges; and the punish-
ment which the law provides for the one greater offence, and
no more, should be awarded.?_ And it was said, in Maryland,
to be the practice, in cases of this sort, to pass judgment on
the count which charges the highest grade of the offence.®
Likewise it was laid down in Georgia, that, where there are
several counts charging different grades of the same offence,
with punishments differing in degree only, yet of the same”
nature, and the jury return a general verdict of guilty, the
judgment will not be arrested, but the court will award
judgment for the highest grade of the offence set out in the
indictment. Now, if in these cases the judgment is rendered
only on the one count, and this one count proves on exami-
nation to be good, the question is just as plain when it comes
up on writ of error as it appears at the time of the sentence.
Yet there might be circumstances in which the judge would
hardly feel himself justified in thus ignoring matter which
was well alleged, and upon which the jury had, in part,
founded their verdict of guilty.

§ 862. In England, where there was an indictment in two

1 Commonwealth v. Kirby, 2 Cush. guilty, the sentence is to be only such
577. as is provided by law for the house-

2 See Manly v. The State, 7 Md.135. breaking, aggravated by the felonious
In like manner, where the indictment is intent; there cannot be added to this
in one count, charging a breaking and the punishment provided for a larceny.
entering into a dwelling-house with the Commonwealth v. Hope, 22 Pick. 1.
intent to steal, and an actual stealing 8 Manly v. The State, 7 Md. 135.
therein, and there isa general verdict of | * Bulloch v, The State, 10 Ga. 47.

[607]
§ 864 PRACTICE. [BOOK VI.

counts for misdemeanor, and the offences were in fact sepa-
rate, and so appeared in the evidence and upon the record,
and the statute provided a punishment for each offence not
exceeding one year, yet the learned judge passed one general
sentence of two years’ imprisonment upon the whole indict-
ment and finding ; the sentence was held, on a case reserved,
to be wrong. There should have been, on the two counts,
“ consecutive judgments of one year’s imprisonment each.’ !
Analogous to what is here laid down, we have what Archbold
tells us is the present practice in England, when there is an
indictment for misdemeanor in several counts, and they all
relate to one offence, “ to pronounce ahd enter up the same
judgment separately on each count of the indictment.” ? In
these latter circumstances, it is perceived, the several sen-
tences of imprisonment are concurrent in point of time; and,
when one has run, they have all expired. But, in the former
instance, the punishment on the one count begins where that
on the other ends.é
§ 863. In Massachusetts, however, it is held, contrary to
“what thus appears to be the English doctrine, that, if there
are two good counts for distinct offences, or for offences which
stand on the face of the indictment as distinct, and there is
one general sentence for the whole, yet the sentence does not
exceed the sum of what the law awards to the two crimes
considered as distinct, the judgment cannot be pronounced
erroneous on writ of error.*
§ 864. This minute statement of points and authorities
does not clear the subject of all difficulty. But it is deemed
1 Rex v. Robinson, 1 Moody, 413.

Ed. 62; ante, § 841 and note. And see

The reader, to see the full force of this
decision, should compare the report with
Stat. 2 Will. 4, c. 34, § 7, on which the
indictment was founded. The court of
revision evidently considered the case to
come within the first clause of the sec-
tion; while perhaps the theory of the
judge, who pronounced the sentence,
may have been, that it was within the
subsequent provision.

2 Archb. Crim. Pl. & Ev. 13th Lond.

[608}

Douglas v. Reg. 13 Q. B. 74.

3 And see, on this subject, Buck v.
The State, 1 Ohio State, 61; Wood-
ford v. The State, 1 Ohio State, 427.

* Charlton v. Commonwealth, 5 Met.
532 ; Booth v. Commonwealth, 5 Met.
535. See Baker v. The State, 4 Pike,
56; The State ». Ambs, 20 Misso. 214;
Stevens v. Commonwealth, 4 Met. 360,
364; ante, § 202, 203.
CHAP. XLVIL] THE SENTENCE. § 865

best that no attempt be here made at further elucidation, ex-
cept what appears in the following suggestion. If the indict-
ment is drawn as for several offences, while in truth only one
is meant to be charged, there appears no reason why, in mat-
ter of principle, the court, when the question comes up on
writ of error to reverse the sentence, cannot judicially take
cognizance of this practice, and presume it to have been fol-
lowed in the case under consideration, when such presump-
tion will sustain the judgment. So if, according to the law
and practice of the court, there may be more offences than
one, as actually committed in distinct transactions, included
in the indictment, there seems, in like manner, to be no rea-
son why, on a writ of error, the court may not also take judi-
cial cognizance of this matter of law and practice, when there-
by the judgment will be sustained. If these propositions
should be accepted as sound in law, then there could be no
occasion for conflict between the. proceedings at the sentence
and the course of decision on a writ of error.

§ 865. Chitty describes the formalities which are gone
through with at the passing of sentence, as follows:1 ‘+ Be-
fore judgment is pronounced upon the defendant, the crier
makes proclamation, commanding ‘all manner of persons to
keep silence, whilst sentence of death is passed upon the
prisoner at the bar (or other judgment is given against him),
upon pain of imprisonment.’? But it is not necessary that
this form should appear on the record, and its omission will
not be material.2 It is now indispensably necessary, even in
clergyable felonies, that the defendant should be asked by the
clerk if he has anything to say why judgment of death should
not be pronounced on him ;‘ and it is material that this ap-
pear upon record to have been done ; and its omission, after
judgment in high treason, will be a sufficient ground for the
reversal of the attainder.® On this occasion, he may allege

11 Chit. Crim. Law, 699 - 701. 3 Salk. 358 ; Comb. 144 ; 3 Mod. 265.

2 See form, Cro. C. C. 482; Dick. See form, 3 Harg. St. Tr. 212 ; 6 Harg.
Sess. 228 ; 6 St. Tr. 833. St. Tr. 833.

8 2Ld. Raym. 1469. 5 Rex v. Speke, 3 Salk. 358; Rex

4 Com. Dig. Indictment, N; 4 Bl. ». Geary, 2 Salk. 630, Comb. 144; 3
Com. 370, 375, note 2; 4 Bur. 2086; Mod. 265. According to a Georgia
[609]
§ 866 PRACTICE. [BOOK VL

any ground in arrest of judgment ; or may plead a pardon, if
he has obtained one, for it will still have the same consequen-
ces which it would have produced before conviction, the stop-
ping of the attainder.! If he has nothing to urge in bar, he
frequently addresses the court in mitigation of his conduct,
and desires their intercession with the king, or casts himself
upon their mercy. After this, nothing more is done, but the
proper judge pronounces the sentence.

§ 866. “The judge usually precedes the sapien by an
address to the prisoner, especially if his crime be capital, in
which he states that he has been convicted on satisfactory
evidence, and informs him when there is little hope that mer-
cy will be extended to him. Sometimes also he takes an op-
portunity of impressing the circumstances of the prisoner’s
guilt on the minds of the spectators, and traces out the re-
mote but important causes which have led him to his unhap-
py condition.2 Even in case of an acquittal, he may often
usefully warn the defendant against the circumstances which
might again place him in an equivocal situation, especially if
there seems reasonable ground to suppose him guilty.” ? It is

case, it is proper toask a party, whohas ror. The State v. Ball, 27 Misso. 324.

been convicted upon a capital charge,
if he has anything to say why sentence
of death should not be pronouncéd
against him. But the omission of this
ceremony in minor felonies will not be
a sufficient ground for reversing the
judgment ; provided it appears, that the
prisoner and his counsel were both in
court when the sentence was pronounced,
and urged nothing in arrest of judg-
ment, or in mitigation of the defendant’s
guilt. Grady v. The State, 11 Ga. 253.
And in a still later case, the omission of
this question was deemed not to be fa-
tal, even where the sentence was death.
Sarah\v. The State, 28 Ga. 576. In
New Jersey it is held, that the inquiry
of the prisoner, and the record of it,
as mentioned in the text, are necessary
only in capital cases. West v. The
State, 2 Zab. 212. Andin Missouri, the
omission of this matter in the record,
in a case not capital, is not a fatal er-

[610]

In Pennsylvania, in a capital case, the
omission was held to be fatal; but there
was no discussion as to how it would be
if the offence, being a felony, was pun-
ishable only byimprisonment. Hamil-
ton v. Commonwealth, 4 Harris, Pa.
129. In New York it has been laid
down, that this branch of the law ex-
tends to all felonies, whether punish-
able by death or not. The learned judge
added : “ On convictions for misdemean-
ors, and especially when tried by courts
of special jurisdiction, and in which
there is no power to arrest judgment,
perhaps the reason of the rule fails.”
Safford v. People, 1 Parker C. C. 474,
477, opinion by Hand, J. See also,
People v. Stuart, 4 Cal. 218, 226 ; Dy-
son v. The State, 26 Missis. 362.

1 4 Bl. Com. 376.

2 1 Gisb. Duties of Man, 405.

8 Td. 406.
CHAP. XLVII.] THE SENTENCE. § 867

obvious, however, that the formalities set out in this section
are not indispensable ; but, if they are omitted, the judgment
is good.

§ 867. We have already considered what: is to be done, -
when it is alleged that the defendant has become insane since
the trial. In like manner,? “ when a woman is convicted
either of treason or felony, she may allege pregnancy in de-
lay of execution. This humane practice is derived from the
laws of ancient Rome, which direct quod pregnantis mulieris
damnate pena differatur quoad pariat, and has been estab-
lished in England, from the earliest periods. In order, how-
ever, to render this plea available, she must be quick with
child, at the time it is offered ; for mere pregnancy, in any
earlier stage, will not be regarded.6 Even when this is the
case, it will not operate as a plea in bar at the trial, or as a
cause for arresting the judgment, but can only be pleaded in
stay of execution. To enable the criminal to do this, the
clerk of assizes always asks her, whether she has anything to
allege why execution should not be awarded against her,’ as
he would do to any male convict who had been sentenced at
a former session or by another tribunal.’ If she allege that
she is pregnant, a jury of twelve matrons are impanelled and
sworn to try whether she is quick with child, for which pur-
pose they retire with her to some convenient place, and, if
they find in the affirmative, which, it is said, the gentleness
of their sex generally inclines them to do, when pregnancy
exists at all,® she is respited till a reasonable time after her
delivery, or till the ensuing session. The latter mode of
respiting seems to be preferable ; because, according to the
best authorities, if the delivery take place in the interval, no
execution can with propriety be awarded until the next as-

1 Ante, § 531, 532. § 3Inst.17; 2 Hale P.C. 413; 1 Hale

2 1 Chit. Crim. Law, 759-761. P. C. 368; 4 Bl. Com. 395.

8 3 Inst. 17, 18; 1 Hale P. C. 368 ; 7 4 Bl. Com. 395, note 1; 1 Hale P.
2 Hale P. C. 406, 413; 2 Hawk. P.C. C. 368; 2 Hale P. C. 407, 413.
ce. 51, § 9; 4 BL Com. 395. 8 1 Hale P. C. 368.

* 4 Bl. Com. 395. ¥ 2 Hale P. C. 413.

55 Inst. 17; 1 Hale P. C. 368; 2 1° 3 Inst. 17; 1 Hale P. C. 368, 369;

Hale P. C. 413; 2 Hawk P.C.c.51, 2 Hale P..C. 413; 2 Hawk. P.C.c¢, 51,
§ 9. §9; 4 BL Com. 395.

[611]
§ 868 PRACTICE. [BOOK VI.

sizes ; for she ought again to be asked, if she has anything
to allege in bar of execution, as she may have obtained a
pardon, or have something to urge in reversal of judgment.’
Besides, the first respite is considered as matter of record,
though only entered in fact by the clerk of assize in a book
of agenda, and cannot be determined but by a new award of
execution.2 If, at the next sessions, she has not been deliv-
ered, and according to the course of nature there is still a
possibility that she may be delivered, she will be again res-
pited till the session ensuing.? And it is said, that, where it
is discovered that she was not quick with child, at the time of
the verdict of the matrons, or even where she was not then
with child at all, but has since become so, she ought. to re-
ceive another respite. But it is certain, that, if she had been
once delivered, she has no right afterwards to claim any fur-
ther delay of execution ; because, as it is said, she ought not,
by her own incontinence, or voluntary act, after sentence, to
evade the sentence of the law.5 But as the original delay
was intended, not from forbearance to the mother, but pity
for the innocent, this seems scarcely reconcilable with the
humane principle which dictates the first reprieve; and prob-
ably, in such a case, the judge would exercise the discretion
he always possesses, in granting another respite.” §

§ 868. It is believed, that, as matter of actual practice, the
judge, with us, will usually, in consultation with the counsel
on both sides, grant, with their mutual concurrence, such a
continuance of the cause for sentence as will prevent the ne-
cessity of resorting to the common-law provision for a jury of
matrons. Yet such a jury may undoubtedly be impanelled
in our States, the same as in England, unless the statutes
otherwise provide.’ It is not probable that pregnancy can

11 Hale P. C. 369; 2 Hale P.C. 2 Hawk. P. C. cv. 51, § 10; Finch,

414. 478.
21 Hale P. C. 369, 370 ; 2 Hale P. ® 4 Bl. Com. 395, note.

C. 414. 7 Thus, in South Carolina, a woman
31 Hale P. C. 369; 2 Hale P. C. brought up to receivea capital sentence

414; 4 BL Com. 395. pleaded pregnancy. ‘ Whereupon,”
#1 Hale P C. 369. says the report, “she was remanded to

-5 3 Inst. 17, 18; 4 Bl Com. 395; jail; and the sheriff was directed to
1 Hale P. C. 369; 2 Hale P.C. 413; summon a jury of matrons, de ventre

[612]
CHAP. XLVII.] THE SENTENCE. § 868

be pleaded at an earlier stage of the cause than the sentence.
It has been held in Arkansas, that, where a woman has been
convicted of a penitentiary offence, her pregnancy, furnishes
no ground for a new trial! In an English case, which oc-
curred in 1838, when the petit jury had brought in a verdict
of guilty, “the learned baron” who tried the case, says the
report, ‘‘ passed sentence of death upon her. And on Mr.
Bellamy, the clerk of assize, asking the prisoner. if she had
anything to say in stay of execution, she replied, ‘I am with
child now.’ ” Upon this a jury of matrons was summoned
forthwith ; but they found, by their verdict, that she was not

quick with child.?

inspiciendo. The court then adjourned
from day to day till the inquisition was
found. It was then returned by the
sheriff into court, under the hands and
seals of twelve matrons, in which they
certified that they had examined the pris-
oner and found that she was not preg-
nant. The prisoner was then brought
up and received sentence of death, and
was afterwards executed in pursuance
of the sentence.” The State v. Arden,
1 Bay, 487, 489, 490.

1 Haleman v. The State, 13 Ark. 105.

2 Tt may be useful to set down the

course of the proceeding, as detailed in

the report of this case. Upon the wo-
man’s plea being thus delivered orally :
“ Gurney, B. —Let the sheriff impanel
a jury of matrons forthwith, Let all
the doors be shut, and no one be suf-
fered to leave the court. [The reporter
tells us, that this order is always given
before a jury of matrons is impanelled ;
and he believes the reason is ‘ to prevent
the ladies from leaving the court,’ and
thus rendering it difficult to collect a ju-
ry.] The under sheriff went to twelve
married ladies, who were present in
court ; and, having obtained their names,
he returned them in a panel to Mr. Bel-
lamy, and these ladies were then called
by Mr. Bellamy, and, having answered
to their names, the fore, matron was
sworn in the following form: —

“© You, as fore matron of this jury, swear

VOL. L. 52

that you will diligently inquire, search, and try
Anne Wycherley, the prisoner at the bar, wheth-
er she be quick with child or not, and thereof a
true verdict give, according to the best of your

skill and knowledge. So help you God.’

“ The other matrons were then’ sworn
as follows : —

“¢The same oath which your fore matron
has taken, on her part, you shall well and truly
observe and keep, on your respective part. So
help you God.’

‘A bailiff was then sworn in the fol-
lowing form :—

“ ¢You shall well and truly keep this jury of
matrons without meat, drink, or fire, candle-
light excepted ; you shall suffer no person but
the prisoner to speak to them ; neither shall you
speak to them yourself, unless it be to ask them

if they are agreed on their verdict, without leave
of the court. So help you God.’

“ The jury of matrons then retired to
a private room, and the prisoner was
taken to them.”

The report then describes a supple-
mental proceeding, which does not al-
ways attend these cases, but it attended
this one : —

“ After a short time they [the ma-
trons] sent a message into court, that they
wished for the assistance of a surgeon.

“ Gurney, B. —I think that I ought

_not, considering the terms of the bai-

liff’s oath, to allow a surgeon to go to
the room in which the jury of matrons
is, and that they should come into court.”

Upon this, the jury of matrons came
into court, and a surgeon was sent out
to examine the prisoner. When he had
done this, and had come back into the

[613]
§ 870 PRACTICE. [BOOK VI

§ 869. The form of the sentence, as entered upon the rec-
ord, should not be, “It is ordered,” &c.,1 or “ ordered by the
court,” &c.;? for words like these imply an act of the judges,
while the punishment which the sentence pronounces, comes
from the law itself. In like manner, if the record expresses
the mere opinion of the court, — as, “ the court is of opinion
that said Knowles is guilty, and is of opinion that he pay a
fine of forty shillings,” — this is erroneous.? The true style
is, “It is considered,” &c.* In like manner, a record entry
that a verdict of guilty was rendered, and that the State re-
covered of the defendant dollars, is no judgment ; there-
fore the court may afterward render judgment on the verdict
thus recorded.

§ 870. Where the sentence is to pay a fine, the order of
the court should accompany the sentence, that the defendant
stand committed until the fine, or the fine and costs, either
or both, as the case may be, shall be paid. This is the com-
mon-law doctrine and practice, and the same practice is con-
firmed also by statutory provisions in some of our States.®
There are perhaps cases which seem to imply, that the sen-
tence is not good unless it contains this provision to enforce

 

presence of the judge and the jury of

matrons, he was sworn according to the.

form, “ You shall true answer make,”
&c., and then delivered his testimony.
On the reception of this testimony, the
jury again retired; and, having agreed
on their verdict, they came back and
rendered it in opencourt. Reg. v. Wy-
cherley, 8 Car. & P. 262.

1 Rex v. Kenworthy, 1 B. & C. 711,
3D. & R. 173.

2 Baker v. The State, 3 Pike, 491.

8 Knowles v. The State, 2 Root, 282.

* And see Hawkins v. The State, 9
Ala, 137. In one case the words were:
“Tt is considered that the said Joel M.
Johnson pay a fine of two hundred and
fifty dollars, and that the said Albert
Smith pay a fine of one hundred dol-
lars, and that they stand committed un-
til the fine and costs of this prosecution
be paid.” And it was held that this

[614]

form is not objectionable as requiring
the committal of each until the fine of
the other is paid; for such is not its
trae interpretation. Johnson v. The
State, 2 Dutcher, 313. This decision
is probably sound, yet it is suggested
that the following form would be pref-
erable: —

“ It is considered by the court here, that the
said Joel M. Johnson pay-a fine of two hundred
and fifty dollars, and one half of the costs of
this prosecution, and that the said Albert Smith
pay a fine of one hundred dollars, and the re-
maining one half of the costs of this prosecu-
tion, the said costs of prosecution being taxed
in full at thirty-seven dollars and fifty-two
cents, of which sum the one half, as aforesaid,
is eighteen dollars and seventy-six cents, and
that the said Johnson and Smith severally stand
committed, each until the fine and costs ad-
judged against him be paid.”

5 Easterling v. The State, 35 Missis.
210. :

° Rex v. Hord, Say. 176; Reg.’ 2.
Layton, 1 Salk. 353, Keilw. 41; Hill
v. The State, 2 Yerg. 247; Harris v.
CHAP. XLVII.] THE SENTENCE. § 871

its execution.!. But it was held in New York, on grave con-
sideration, that, if the sentence requires the defendant to pay
a fine, and the judgment then proceeds to award process for
its recovery, according to the practice of the court, this is
good, though there is no clause requiring the commitment of
the defendant until the fine is paid.?

§ 871. That the doctrine thus laid down in New York is
the sound and generally-prevailing law, appears plain from
the following statement of the matter, made by Chancellor
Walworth in the Court of Errors; wherein, also, appear
some points of practice important to be understood: “In
proceedings in civil suits at common law, against a defendant
in an action of tort, in addition to the usual judgment for the
debt or damages awarded to the plaintiff, there was a judg-
ment that the defendant be taken until he paid a fine to the
king ;° and, in cases of misdemeanor where a verdict might
be given against him in his absence, a capias was awarded to
bring him in to receive judgment ; or, if he was in court, he
might be committed to prison until the fine which had been im-
posed upon him for the offence was paid. It seems now to be
well settled, that, for the collection of the fine imposed upon
the defendant upon such conviction, the people have the right
to, proceed against the property of the defendant by a levari
facias, as well as against the body; and perhaps they may
proceed against both at the same time. All that is necessary
to insert in the judgment in relation to the execution is the
award of the proper process to carry into effect the sentence of
the court. Ifit was a matter of course to commit the party

be taken till he paid a fine to the king,
considering it as a public misdemeanor

Commonwealth, 23 Pick, 280 ; Faris v.
Commonwealth, 8 B. Monr. 79.

1 Rex v. Hord, supra.

2 Kane v. People, 8 Wend. 203.

8 This highly illustrative matter is
stated as follows in Tomlins’s Law
Dictionary, under the title ‘““Capias pro
Fine. Anciently, when judgment was
given in favor of the plaintiff in any ac-
tion in the king’s courts, it was consid-
ered that the plaintiff be arrested for
his wilful delay of justice, or capiatur

coupled with the privateinjury.” This
provision of the old common law was
abolished by statute. But it shows us,
that, under the common law, there
might be a judgment for a fine ren-
dered against 4 man in his absence ;
and then, upon the judgment, he might
be arrested by a writ entitled a capias
pro fine, as already explained. Ante,
§ 690 and notes.
[615]
§ 872 PRACTICE. [BooK VI.

to prison immediately, to remain in execution until the fine
was paid, such would be the effect of awarding process for the
recovery of the fine, according to the course and practice of
the court ; and, upon this judgment, a capias ad satisfacien-
dum pro fine may properly issue to the sheriff, to take the
defendant, and to detain him in jail until the fine is paid.
And if, as I think was the case, the public prosecutor might
at the same time proceed against the property of the defend-
ant, to collect the fine by levari facias, this judgment is suffi-
cient to authorize the issuing of that execution also.” }

§ 872. Whether everything which is thus stated by Chan-
cellor Walworth would be held as sound in law, in all our
States, is matter upon which the author has no means of
speaking from authority. In the ordinary course of things,
it is seldom that, in any of our States, there is any occasion
to enforce a judgment for a fine in any way other than by a
commitment of the defendant, who is actually in the power
of the court at the time when sentence is pronounced.?
There is a statute of the United States which provides,
“ that, in all criminal cases in which there has been or shall
be a judgment or sentence against any person, as a fine or
penalty, whether alone or along with any other kind of pun-
ishment, the same shall be deemed a judgment debt, and

1 Kane v. People, 8 Wend. 203, 215. factas may issue immediately to take

2 See, as to Virginia, Pifer v. Com-
monwealth, 14 Grat. 710. A fine as-
sessed by the mayor of Cincinnati, for
the violation of an ordinance, may be
collected either by commitment of the
person on whom the fine is imposed, or
by jieri facias. Huddleson ». Ruffin,
6 Ohio State, 604. Chitty states the
English law as follows: “If the de-
fendant will not pay the fine, a capias
pro fine may be awarded. 1 Salk. 56.
A levari facias may also be issued after
conviction of an indictment for not re-
pairing. Com. Dig. Execution ; Rex
v. Wade, Skin. 12. And where a de-
fendant, in an indictment for a misde-
meanor, has received judgment of fine
and imprisonment, it was held a levari

[616]

goods in execution of the fine. 2 B. &
Ald. 609; 1 Chit. 428. The ‘sheriff is
bound ex officio to levy the fine imposed
upon « defendant convicted for a mis-
demeanor, and, at all events, the writ of
levari facias is regular, if it has been
adopted on the part of the crown. 1
Chit. 583. The court will not give the
sheriff directions how he shall dispose
of property remaining in his hands,
which has been seized in execution to-
wards the payment of a fine imposed
upon a defendant convicted of a blas-
phemous libel; but, if the sheriff has
made an improper return, it may be
quashed. 1 D. & R. 474.” 1 Chit.
Crim. Law, 811.
CHAP. XLVIL] THE SENTENCE.

§ 873

(unless pardoned or remitted by the President) may be col-
lected on execution in the common form of law.”1 And
either under the common law or by force of statutes, in some
of the States, a fine of this sort is, or may be, treated as a
kind of judgment debt due to the State.2 An infant’s prop-
erty is liaMe to satisfy such a fine, together with costs. It
has been held, in Texas, that this is not “such a judgment
as comes within the intention of.the law allowing interest on
judgments.” * Neither is a judgment for a fine a debt, with-
in the meaning of statutes abolishing imprisonment for debt.®

§ 873. The judgment ought to be in such terms as to leave
no doubt whether the commitment is for the non-payment of
the fine, or whether it is a part of the punishment. “ For,”
it was resolved in an old case, “the cause of commitment
ought to be certain, to the end that the party may know for
what he suffers, and how he may regain his liberty. If he
was committed for the fine, it ought to be until he repay the
fine ; but, if the intent of the censors was to punish him, not
only by fine, but also by imprisonment, they ought to have
made them two distinct parts of the judgment, by condemn-
ing him to prison so long, and from thence also until he
should pay the fine.” ® Though the usual and proper form
of the judgment is, that the defendant stand committed until
the fine be paid, or the fine and costs, or the costs; yet, in
Georgia, where the judgment was, that he pay a fine of one
hundred dollars, and the costs of prosecution ; and, on fail-
ure to pay the same, be committed to jail for three months,
unless sooner paid; this was held to be good.’

1 Stat. 1863, c. 46, § 2,12 Stats. at
Large, 657.

Donald, J. observed : “ The penalty for
the offence of which the defendant was

2 And see Cagle v. The State, 6
Humph. 391; Strafford v, Jackson, 14
N. H. 16.

3 Beasley v. The State, 2 Yerg. 481.

#4 The State v. Steen, 14 Texas, 396.

5 Dixon v. The State, 2 Texas, 481;
The State v. Mace, 5 Md. 337.

§ Groenvelt’s case, 1 Ld. Raym. 213.
And see Riley v. The State, 16 Conn.
47,

7 Brock v. The State, 22 Ga. 98. Me-

52*

convicted is pecuniary altogether. The
court, on imposing the penalty, may
enforce its payment by adjudging that
the party convicted be committed until
the fine and costs are paid. The im-
prisonment is no part of the penalty
imposed, but it is the means, and the
legal means, of enforcing the judgment
of the court. Such is the judgment in
this case. The imprisonment is not
ordered as a penalty, and the judgment

[617]
§ 875 PRACTICE. [BOOK V1.

§ 874. Ifa prisoner, committed for the non-payment of his
fine, escapes, this is no discharge of the judgment.!_ Neither
is it any ground for discharging him, on which the court in
the absence of statutory direction can proceed, that he is poor,
and unable to pay.2 Yet there are in most of our States
statutes by force of which the court will, after a tifhe, set the
prisoner at liberty if he is unable to make the payment ad-
judged against him.2 At the same time, such discharge does
not, under every form of the statute law, relieve the defend-
ant from the legal duty to the State to pay the fine; but his
property may still be holden for it.*

§ 875. It is sometimes provided by statutes, that the court
may, in its discretion, inflict either a pecuniary punishment,
or imprisonment ; or may sentence the prisoner, in the alter-
native, to pay a fine or be imprisoned.’ But aside from any-
thing which may come from statutes of this sort, the judg-
ment should be direct and unconditional, and distinctly lim-
ited in its terms. Thus, in Connecticut, a sentence by a
justice of the peace that the defendant be committed to the
workhouse “ until released by.order of law,” was held to be
bad ; notwithstanding the statute provided for the imprison-
ment of persons in such a case “ until released by order of
law.” Still it was said, the sentence “should have been for
a definite time, or, at least, until the term of the next county
court, then to be discharged or not, as by the court should
be adjudged proper.”® So a judgment that the defendant
be fined and “be of good behavior,” appears to have been

is not in the alternative, and the impris-

with this case, Matter of Sweatman, 1
onment when suffered is not a dis-

Cow. 144,

charge of the penalty. That still re-
mains. The judgment, as pronounced,
is milder and more favorable to the
prisoner than the ordinary judgment, —
to stand committed until the fine is
paid ; for, under this sentence, if he pays
the fine and costs before the expiration
of three months, he is to be discharged,
and, whether he pays or not, at the ex-
piration of three months he is to be dis-
charged.” p. 101. See, in connection

[618]

1 The State v. Simpson, 1 Jones, N.C.
80.

2 Luckey v. The State. 14 Texas, 400.

3 See Strafford », Jackson, 14 N. H.
16.

* Commonwealth v. Long, 5 Binn.
489.

5 See Reg. v. Green, Gilb. Cas. 231 ;
Douglas. v, Reg., 13 Q. B. 74, 5

* Washburn v. Belknap, 3 Conn.
502, 506.
CHAP. XLVIL]

THE SENTENCE. § 877

deemed ill, for the lack of stating a definite time! “ And,’
said Lord Holt, ‘a fine, unless such a thing be done in fu-
turo, is void.” 2

_§ 876. It is irregular, therefore, to annex to a sentence a
provision for its subsequent remission. For, said Gaston, J.,
“a judgment, though pronounced by the judge, is not his
sentence, but the sentence of the law. It is the certain and
final conclusion of the law, following upon ascertained prem-
ises. It must, therefore, be unconditional. When it has been
rendered, — except that during the term in which it is ren-
dered? it is open for reconsideration, — the court have dis-
charged their functions, and have no authority to remit or

mnitigate the sentence of the law.” ¢
§ 877. The judgment, even for a fine, must be pronounced

1 Rex v. Rayner, 1 Sid. 214.
2 Rex v. Hertford, Holt, 320. In

another case, there was a commitment

of a defendant by justices of the peace,
“for refusing to account for a toll by
him received, and until he do account,
and pay what shall be due to the pro-
prietors of the said toll.” But, “‘ per
curia, the commitment is illegal; for
no certain sum is thereby appointed to
be paid, and then the defendant may
remain in prison for life.” Rex v. Cat-
terall, Fitzg. 266. See, also, Rex ».
Barnes, 2 Stra. 917. In an Indiana
case, as stated by Holman, J.: “ The
plaintiff in error was convicted of steal-
ing ninety dollars, the property of
George Short. The act under which
this prosecution was conducted requires,
that the person offending shall restore
to the owner the thing stolen, and pay
to him the value thereof; or twofold
the value thereof if the thing stolen be
not restored. In this case the judgment
awards, that the plaintiff in error ‘make
his fine to the said George Short in the
sum of ninety dollars, or the sum of
ninety-six dollars, if the three dollars
lost of the ninety be not returned.’
From this we understand, that eighty-
seven dollars had been restored ; and,

if the remaining three should not be re-
turned, the court award that the offender
pay ninety-six more, which, with the
eighty-seven restored, will make one
hundred and eighty-three dollars, three
more than the act authorizes. Inde-
pendently of this, there is manifest un-
certainty in this part of the judgment.
The amount of money which the plain-
tiff in error has to pay, whether ninety
or ninety-six dollars, depends on a fu-
ture event, to wit, whether or not the
remaining three dollars shall be re-
turned ; and there is no ‘tribunal or
officer known in the law, to determine
when that event shall have taken place.”
Therefore the judgment was held to be
erroneous. Morris v.The State, 1 Blackf.
87. In England, where a fine fixed by
statute for a misdemeanor is miscal-
culated in the Verdict and the judgment,
the court, upon a rule served on all par-
ties interested, will alter the rule for
judgment against the prisoner, and the
entry roll as to so much of the punish-
ment, but they will not alter the judg-
ment and verdict. Rex v. Stevens, 3
Smith, 366.

3 Post, § 877.

4 The State ». Bennett, 4 Dev. &
Bat. 43, 50.

~, [619]
[BOOK VI.

§ 879 PRACTICE.

in open court, and not privately in the judge’s chamber.!
The fact that the judge has made a formal announcement of
the sentence, or that the clerk has entered it in his minutes,
or both, does not preclude the judge from correcting an error,
or altering his first determination. And, if no steps have
been taken to carry the sentence into execution, it may be
changed at any time during the term of the court at which it
is pronounced, and before final judgment is signed.”

§ 878. Though the sentence to imprisonment ought prop-
erly to specify at what time it is to be carried out,’ yet time
is not of the essence of such a sentence. Therefore, where
a defendant, who had been convicted of an assault, was sen-
tenced to be imprisoned for two calendar months “ from and
after the Ist day of November next,” but did not go into prison
‘according to the sentence, and, at a subsequent term, it was
directed that the sentence for two months’ imprisonment be
immediately executed, the proceeding was held to be correct.5
Hence also we have the doctrine already mentioned, that, if
the prisoner was previously sentenced to a period of imprison-
ment, a second sentence, for another offence, may be made by
the court to commence when the former shall have expired.’

§,879. In cases of capital sentence, and others in which
there is to be a particular corporal punishment inflicted, it
is not the practice, in England, for any court of criminal ju-
risdiction to make the day upon which execution is to be
done a part of the original sentence. The time of inflicting
such punishment is usually left either to the discretion of
the officer to whom the execution of the sentence belongs, or
is appointed by a particular rule of the court which awards

ceased when the warrant was exe

1 Anonymous, T. = 68.
cuted.”

2 See Rex v. Fletcher, Russ. & Ry. 58;

People v. Thompson, 4 Cal. 238 ; Jobe
v. The State, 28 Ga. 2385; Matter of
Mason, 8 Mich. 70. In People v. Duf-
fy, 5 Barb. 205, 208, Hurlbut, P. J.
said: “In our judgment, the magistrate
lost all jurisdiction of the matter when
he signed the record of conviction and
issued the warrant of commitment ; but,
if that were questionable, we do not en-
tertain a doubt that such jurisdiction

[620]

8 Kelly v. The State, 3 Sm. & M..
518.

* Crim. Law, I. § 283, 730.

5 The State v. Cockerham, 2 Ire. 204.

® Crim. Law, I. § 731.

7 Russell v Commonwealth, 7 S. &
R. 489; The State v. Smith, 5 Day,
175 ; Wilkes v. Reg. 4 Bro. P. C. 360,
367; Commonwealth v, Leath, 1 Va.
Cas. 151.
CHAP. XLVI] THE SENTENCE. § 880

the punishment.) It is undoubtedly sometimes practised, in
this country, to fix the day of the execution at the time of
pronouncing sentence, and incorporate it in the sentence;
yet this is by no means uniformly, if indeed it is generally,
done. In some of our States, the day of executing a capital
sentence is to be fixed by the governor ; and then, of course,
it cannot be set down in the sentence itself. And every-
where with us the sentence in the English form is good? If
the day which has been fixed for the execution of the sen-
tence has passed without its being executed, the court or
governor, as the case may be, should fix another day; and
the judgment remains good, though the time has elapsed,
until its command is executed.’ Still, ifa second day is to
be fixed by the court, after the original time and the term of
the court have passed, the prisoner should be brought for
this purpose to the bar of the court.

§ 880. There are, connected with the sentence, some other
points adjudged ; but they are not of such a general charac-
ter as to render their discussion here advisable. It should
be observed, however, that every court of general criminal

* jurisdiction has the power to respite or suspend, for sufficient
cause shown, its sentence after it is pronounced, and before
it is executed. And Totten, J., sitting in the Tennessee
court, said: “ There are many cases, no doubt, where it is
necessary and proper to suspend the execution of the final
judgment. For instance, where the prisoner has become non

1 Atkinson v. Reg., 3 Bro. P. C. 517. :

2 Webster ». Commonwealth, 5 Cush.
386 ; Cathcart », Commonwealth, 1
Wright, Pa. 108. In the latter case,
Strong, J. said: “ The manner and
form of giving judgment in England,
in 1718, in cases of conviction for mur-
der, was precisely that which the court,
of Oyer and Terminer adopted in this
case. The convict was sentenced to
death by hanging, but the sentence did
not fix the time and place of execu-
tion. That such was the mode and
form of pronouncing judgment in cap-
ital felonies appears from all the books.

Rastell’s Entries ; 2 Hale’s Pleas of the
Crown, 399 ; Coke’s Entries, 352, 353 ;
and 3 Bur. 1812, Nor’ was it changed
by the statute of 25 Geo. 2, v. 37, which
enacted that all persons found guilty of
wilfal murder should be executed on
the day next but one after sentence
passed. See Rex »v. King, 3 Bur. 1812,”
p. 115. See, also, Russell v. The State,
33 Ala. 366.

8 The State v. Oscar, 13 La. An.
297; The State v. Kitchens, 2 Hill, S.
C. 612.

* Rex v. Harris, 1 Ld. Raym. 482.

- [621]
§ 880 PRACTICE. [BOOK VI.

compos between the judgment and the award of execution ;
or, in order to give room to apply to the executive for a re-
prieve or pardon; or, in special cases, where the necessity
and propriety of such course are rendered evident to the
mind of the court.”! In England, the power to respite, it ap-
pears, may be executed by the judges even in vacation ;? and
perhaps the same may be done under the common law of this
country.?

1 Fults v. The State, 2 Sneed, 232, 2 Anonymous, 2 Dy, 205, pl. 5.
235. See also, Allen v. The State, 3 Miller’s case, 9 Cow. 730.
Mart. & Yerg. 294.

[622]
CHAP. XLVI. ] EXECUTION OF SENTENCE. § 882

CHAPTER XLVIII.
THE EXECUTION OF THE SENTENCE.

§ 881. We have already considered how a fine, levied on
the defendant by the sentence of the court, is to be collected.
It remains to make some observations upon the other pun-
ishments.

§ 882. Chitty says:1 “In the King’s Bench, when judg-
ment of death is given, and the execution is to be performed
by the marshal of the court, in whose custody the prisoner is
always supposed to continue, the entry is et preceptum est
marescallo, &c., quod faciat executionem periculo incumbente.2
When a nobleman is attainted of felony or treason before the
Lord High Steward, there is a precept for the execution in
the name of the High Steward, and authenticated by his
seal. And a similar precept is said formerly to have been
issued under the hand of the judge in every execution for a
capital felony.t In the High Court of Parliament, before his
Majesty, the sentence is always put in force by a writ from
the king.® Formerly, when judgment was given by commis-
sioners of oyer and terminer, the precept for execution was
issued to the sheriff in the names, and under the seals, of
three of the commissioners, one of whom was of the quorum;
and justices of jail delivery were accustomed to award a sim-
ilar instrument, reciting the judgment, and commanding ex-
ecution to be done, or entering on the record e¢ dictum est
per curiam hic vicecomiti comitatos predicti, quod faciat exe-
cutionem periculo incumbente.6 But it has long been settled,

11 Chit. Crim. Law, 780, 781. 5 Id. ib. ; Williams Just. Execution
2 9 Hale P. C. 5, 409. and Reprieve. See form, Foster, 146 ;
8 3 Inst,31; 2 Hale P.C.409;4 Bl. 4 Bl]. Com. App. VII.
Com. 403; Williams Just. Execution 8 3 Inst. 31;2 Hale P.C. 409; 4
and Reprieve. Bl. Com. 403 ; Williams Just. Execu-
* 4 Bl. Com. 403. tion and Reprieve.

[623]

ry
§ 883 PRACTICE. [BOOK VI.

that, in capital cases, the prisoner may be put to death with
any writ or precept.1 And when the proceedings of the court
were in Latin, the execution of the prisoner was directed by
the words sus. per col. written against his name in a calendar
prepared for the purpose.”

§ 883. ‘“ The practice at the present day, at the assizes, is
as follows: When all the other public busine§s of the court
is terminated, the clerk of assize makes out in writing four
lists of the prisoners, with separate columns ; containing their
crimes, verdicts, and sentences; and a blank column, in which
the judge writes what is his pleasure respecting those capital-
ly convicted, as to be executed, respited, or transported. If
the sheriff afterwards receives no special order from the judge,

‘he executes the judgment of the law in the usual manner,
according to the directions of his calendar.t In every coun-
ty, this important subject is settled with great deliberation by
the judge and the clerk of assize, before the former leaves
the town where the assizes are holden: but probably, in dif-
ferent counties, with some slight variation ; as, in Lancashire,
no calendar is left with the jailer, but one is sent to the séc-
retary of the state for the department. But, in London, the
recorder, after reporting in person to the king the several
cases of the prisoners, and receiving his royal pleasure that
the law should take its course, issues his warrant to the sher-
ifs, directing them to perform the execution on the day and
at the place appointed. In the Court of King’s Bench, if the
prisoner be tried at the bar, or brought thither by habeas
corpus, a rule is made for the execution, either specifying
the time and place, or leaving them to the discretion of the
marshal.’ It seems to be the proper mode for the court not
to name a day, when the execution is to take place in another
county ; but make a rule to deliver the prisoners to the sheriff
of that county where the punishment is to be inflicted.” 8

1 Finch, 478; 2 Hale P. C. 409. 8 Id. ib. See form, 4 Bl. Com. App.
2 4 Bl. Com. 403; 2 Hale P.C. 409. VI.
3 4 BL. Com. 404, note]; 2 Hale P. 7 Foster, 43 ; 6 Harg. St. Tr. 382; 3

C. 409. Bur. 1812 ; 4 Bl. Com. 404; 2 Hale P.
+ 4 Bl. Com. 404, note 1. C. 409. See form, 4 Bl. Com. App. IV.
5 4 Bl. Com. 404, note 1. ® 3 Bur. 1812.

[624]
CHAP. XLVIII.]

EXECUTION OF SENTENCE. § 885

§ 884. “The court,” says Chitty in another passage,
“may either appoint the place, or they may leave it to the
sheriff.” 2 It is not, however, best to extend further this
statement of details as collected by the English writers. A
digest of a few points will be given in a note.2 In most of
our States, matters of this sort are determined by a course of
domestic usage, following more or less closely the English ;
but we need not enter info these questions in volumes intend-
ed for general use.

§ 885. There are not many points, of a general nature,
connected with the subject of imprisonment, to be here dis-
cussed. Some local and inferior points are stated in a digest
of cases appended in a note.t In England, the Court of

11 Chit. Crim, Law, 783.

2 3 Bur. 18123 4 Bl. Com. 404 ; Wil-
liams Just. Reprieves and Executions.

3 Where the sheriff has the custody
of the prisoner, the judgment of the
court passing sentence of death upon
him is, without any warrant or copy of
the calendar, sufficient to authorize and
require the sheriff to do execution ; the
copy of the calendar signed by the
judge is « mere memorial. Rex »
Antrobus, 2 A. & E.788, 798, 4 Nev.
& M.565. The Court of King’s Bench
has authority to order the sheriff of any
county, or the marshal of the court, to
carry into execution a sentence of death,
pronounced by a judge under a com-
mission of oyer and terminer and gen-
eral jail delivery. Rex v. Garside, 4
Nev. & M. 33, 2 A. & E. 266. In this
case, also, the court refused to hear an
application from a sheriff, into whose
custody the prisoners had been removed,
praying that the order to do execution
might not be made upon him. Yet in
Rex »v, Antrobus, supra, it was held
that a sheriff is not bound, upon service
of a copy of the calendar of prisoners
signed by a justice of jail delivery at
the assizes, to execute prisoners against
whom sentence of death has been passed,
unless such prisoners are in his legal
custody. The bodies of executed mur-

VOL. I. 53

derers were by the common law at the
king’s disposal, therefore the court could
not direct them to be hung in chains,
though the king could. Rex v. Hall, 1
Leach, 4th ed. 21.

4 The Pennsylvania acts of March
23, 1826, and April 10, 1835, which
authorize the committing of infants to

‘the house of refuge without trial by

jury, are constitutional. Said the court:
“‘The House of Refuge is not a prison,
but a school, where reformation and
not punishment is the end.” Ex parte
Crouse, 4 Whart.9. In Massachusetts,
by Rev. Stats. c. 139, § 8, a sentence to
imprisonment in the State prison must
be partly to solitary imprisonment and
partly to confinement at hard labor ;
therefore a sentence which directs no
soljtary imprisonment is erroneous, and
may be reversed on error at the suit of
the convict. Stevens v., Commonwealth,
4 Met. 360. And see, for other points
under the statutes of this State, Shep-
herd v. Commonwealth, 2 Met. 419.
In New Jersey, jails and workhouses
are treated as entirely distinct in their
origin, object, and government. There-
fore authority to a justice of the peace
to commit to the workhouse, will not
authorize a committal to the common
county jail. The State v. Ellis, 2 Dutch-
er, 219. The house of correction for

[625]
§ 886 PRACTICE. [BooK vL

Queen’s Bench, sitting at Westminster, can, at common law,
sentence the convict to any prison in England, as well as to the
one belonging to the court.1 Or, as the doctrine is stated by
Chitty,? since “all prisons within the realm are the king’s, the
Court of King’s Bench may commit an offender to any legal jail
within the kingdom.” ® So in Georgia it has been held, that,
if the county jail is insecure, one convicted of murder may
be committed by the court to the jail of another county.‘

§ 886. Perhaps, on general principles, aside from what
may come from the peculiar language employed in particu-
lar statutes, it may be competent for the courts of this coun-
try to sentence convicts to any prison which may be located
within their general jurisdiction ; even, for instance, to com-
mait to the State prison one who is to suffer the common-law
imprisonment for a common-law misdemeanor.® . Yet, accord-
ing to a Pennsylvania case, when persons are convicted of a
riot, though of an aggravated kind, it is illegal to sentence
them to the penitentiary ; the proper imprisonment for the
offence being in the county jail.6 But such a point as this,
necessarily, in this country, depends so much upon a consid-
eration of the particular language of statutes, and upon the
general course of legislation upon the subject, and the usage
in the particular State, as to render a general discussion of
it of but little practical help in new cases which arise.
the county of Middlesex, adapted to the
separate reception of felons pursuant to
Stat. 22 Geo. 3, c. 64, and other acts, isa
legal prison for the safe custody of per-
sons under a charge of high treagon.
Ex parte Evans, 8 T. R. 172.

1 Rex v. Hart, 30 Howell St. Tr.
1131, 1194, 1394, 12 Q. B. 1041, note.
21 Chit. Crim. Law, 800.

3 3T.R.176; Barnes, 385, 388, 389 ;
Lofft, 436 ; 3 Inst. 100. See also, Rex
». Musson, 9 D. & R. 172.

* Revel v. The State, 26 Ga.275, In
Pennsylvania, prior to the statute of

ment in the jail of that county. Bar-
low v. Commonwealth, 3 Binn. 1.

5 Thus, I am referred by George
Bemis, Esq., of Boston, well known for
extensive learning in matters connected
with the criminal law, to the unreported
Massachusetts case of Commonwealth
v. Ebenezer Shives, who, as appears by
the State prison records, was, at Lenox,
May 5, 1818, sentenced by the Supreme
Judicial Court to confinement in the
State prison five years at hard labor,
and thirty days solitary, for a common
law conspiracy against the character of

April 4, 1807, a prisoner, convicted
out of the county of Philadelphia, of
any offence except felony, or larceny,
could not be sentenced to imprison-

[626]

a young girl.
8 Clellans 7. Commonwealth, 8 Barr,
223,
CHAP. XLVIIL | EXECUTION OF SENTENCE. § 888

§ 887. It has been held in England, that the Court of
Queen’s Bench has no authority to interfere in the regulation
and management of the jails in the kingdom. Therefore,
where persons who had been found guilty of a misdemeanor,
and confined in a county jail under the sentence of the court,
prayed to be allowed the same indulgences as prisoners con-
fined for felony, this tribunal refused to make any order upon
the jailer for that purpose.! In a Pennsylvania case, where
the prisoner asked to be discharged on a habeas corpus, it
was observed, by Huston, J.: “This, then, presents the case
of a person legally confined, but who alleges he is not legally
treated. If the keepers misbehave, by using undue rigor or
imposing hardships or severities on the prisoner not author-
ized by law, they may be punished by a proper proceeding,
before the proper tribunal; or, if the misbehavior consists in
undue indulgence,” there is aremedy. Yet a matter of this
sort will not furnish ground on which the prisoner can be
discharged from confinement.”

§ 888. “ If,’ says Chitty,? “ the order of a court be to con-
fine a person in a certain prison, the confining him in any
other prison would be false imprisonment, for which he may
recover damages.’ * The other punishments known to the
common law are so entirely out of use in this country that it
is not necessary to consider them here.

1 Rex v. Carlile, 1 D. & R. 535. the construction of certain statutes. In

2 Pember’s case, 1 Whart. 439, 443,
444; 8. p. Reddill’s case, 1 Whart. 445,
448. In these cases it was held, that
prisoners sentenced in 1828 to impris-
onment to hard labor for « number of
years in the Walnut street prison ; and
thence removed, on this ‘prison being
sold, to the Arch street prison, where
they were kept without hard labor ;
were not therefore entitled to be dis-
charged on habeas corpus. The ques-
tion, however, turned principally upon

North Carolina, a prisoner who has
been convicted of a misdemeanor, and
sentenced to imprisonment in the jail,
can only be entitled to the privilege of
the prison bounds or rules, under the
act of assembly, by an express order
or rule of the court which sentences
him. Ex parte Bradley, 4 Ire. 543.

8 1 Chit. Crim. Law, 800.

* 1 Salk. 408 ; Skin. 664; Bac. Ab.
Trespass, D, 3.

[627]
§ 890 PRACTICE. [BOOK VI.

CHAPTER XLIX.

THE ESCAPE OF PRISONERS FROM CUSTODY.

§ 889. Tue offence of escape has been considered in an-
-other- connection.1_ One consequence always attending an
escape is, that the prisoner is liable to be rearrested.2 And
we have seen,’ that, when one breaks away from a lawful ar-
rest, the officer does not need to be supplied with a fresh
warrant to justify the retaking of him.

§ 890. “If,” says Chitty,* “the prisoner was attainted in
another court, or has since his sentence been out of custody,
_it is open to him to allege that he is not the party against
whom the sentence was given ;° or, if the prisoner escapes
and is retaken, the same question may arise.® In these cases,
the court must ask the party in custody whether he has any-
thing to say why execution should not be awarded against
him.” On this he may, ore tenus, and without holding up his
hand, aver that he is not the person mentioned in the record ;
to which the attorney-general may, in the same way, reply that
he is the same, and that he is ready to verify it; and a venire
will be awarded to try the issue thus joined, returnable zn-
stanter.§ The prisoner may be allowed counsel to assist him,
but the court will not put off the trial unless strong grounds
are-shown to presume that the party has been mistaken.°

1 Crim. Law, II. § 1026, 1027, 1052-
1065.

8 Ante, § 620.
* 1 Chit. Crim. Law, 777, 778.

2 « A party who is in custody, accused
or convicted of a criminal offence,—
whether he be in jail awaiting his trial,
or in execution of a sentence after tri-
al, — if he escapes, may be recaptured
at any time afterwards, and this wheth-
er the escape was voluntary or involun-
tary on the part of the sheriff.” Black,
C. J. in Schwamble v. The Sheriff, 10
Harris, Pa. 18, 19.

[628]

5 Foster, 40; 1 W. Bl. 3; 4 Bi. Com.
396.

6 3 Bur. 1810.

71 Hale P. C. 368; 3 Bur. 1810;
1 W. Bl. 4; Foster, 40.

8 1 W.BI. 4; Foster, 40, 41; Rex v.
Rogers, 3 Bur. 1809.

® 3 Bur. 1810; Foster, 41; 1 W. Bl.
4; 4 Bl. Com. 396.
CHAP. XLIX.] ESCAPE OF PRISONERS. § 892

Nor will time be allowed him to produce witnesses, unless he
will positively swear that he is not the party attainted.! Nor,
though his life is in question, can he be allowed to make any’
peremptory challenges.* ‘During this trial, if the offenders
have escaped and are considered desperate, they ‘may be
chained together.’ If the jury find them to be the same per-
sons, no proclamation ought to be made before the award of
execution ;* but execution will immediately be awarded ac-
cording to the original sentence.” 5

§ 891. The plea thus spoken of has seldom, in practice,
been used in the United States ; though it is evidently a part
of our criminal law procedure, the same as of the English,
In a Mississippi case, when, after verdict, the prisoners who
had remained constantly in custody were brought up for sen-
tence, they tendered a plea denying their identity. But the
judge treated it as a nullity, and passed sentence ; and the
court of review held that he did right. Said Trotter, J.:
“This plea, which in practice is interposed ore tenus at the
bar of the court, is never allowed except in cases where the
prisoner has escaped after verdict and before judgment, or
after judgment and before execution. In this case it should
not have been received, because the record does not show any
escape. The prisoners were constantly in custody. It was,
therefore, properly treated as a nullity.” ® :

§ 892. Ifa prisoner, after being arrested on a magistrate’s
warrant, has given bail for his appearance at court, he cannot
be rearrested for the same offence on the supposition that his
bail is insufficient. This supposed insufficiency of bail does
not constitute an escape.’

1 Foster, 42; 4 Bl.Com. 396; 4 W. & Id. ib.

Bl. 4, 5. 6 Thomas 2. The State, 5 How. Missis.
21 Lev. 61; Foster, 42;1 W. BL 20, 31, referring to 1 Chit, Crim. Law,
6; 4 Bl. Com. 396. 776; 3 Bur. 1870.
3 3 Bur. 1812. 7 fasam v. The State, 27 Ala. 17.
# 3 Bur. 1811.

53* [629]
§ 895 PRACTICE. [BOOK VI.

CHAPTER L.
CONVICTIONS BEFORE INFERIOR MAGISTRATES.

§ 893. Wes have already seen something respecting the
origin and nature of the office of justice of the peace.) It
was a considerable time after the original institution of this
office, and after justices of the peace had become habituated
to hearing criminal causes in sessions, where the proceedings
were by indictment by a grand jury and trial by a petit jury,
when first it was made competent in some special cases for
justices out of sessions to proceed on view or on complaint,
without the intervention of a jury either grand or petit, to
convict and punish offenders.? Still, at the time when the
colonies which now compose our older States were settled,
this branch of the English statutory law had become consid-
erably developed.

§ 894. The matter with us, however, is almost entirely
,dependent on our own statutes. Indeed, in most of our
States, it is wholly so. There have been instances in this
country of summary convictions on view, without complaint,
oath, or evidence ;* but they are rare, and probably in most
of our States the magistrate can proceed only on a written
complaint, attested by the oath of the complainant.

§ 895. In a recent English case, it was observed by Parke,
B., that, to justify a summary proceeding before a magistrate,
there must be tendered to him an “information,” as it was
called; or, as it is more frequently termed in the United
* States, a “complaint.” But he added, “that, unless a statute
requires it, an information need not be on oath, or even in

1 Ante, § 631 et seq. 8 Holcomb v. Cornish, 8 Conn, 375;
2 See, for an instructive summary Commonwealth 2. Eyre, 1 S. & BR.
of this whole matter, Paley Convict. 347,
Introd.

[630]
CHAP. L.] CONVICTIONS BEFORE INFERIOR MAGISTRATES. § 898

writing.” And in the particular case, the conviction was
held by all the judges to be good, though the information was
not upon oath. But most of the statutes, English and Amer-
ican, require the information to be upon oath and in writing.”
And in Maine it was held, under the system of statute laws
there prevailing, that, where a statute directs a prosecution
to be instituted “on complaint,” the meaning is, a complaint
on oath or affirmation.®

§ 896. There may occasionally arise a question as to the
legal competency of the complainant. In England, on-the mat-
ter of granting a criminal information by a superior court, it
was held that the uncontradicted testimony of a particeps
criminis will be accepted as sufficient, in a case urgently re-
quiring judicial interposition. And there seems to be no
reason why, in these cases before magistrates, any person who
can legally be a witness may not legally be a complainant.

§ 897. Some allusion has already been made to the ques-
tion of the degree of technical accuracy which must attend
the complaint in its framework and structure. And it may
be deemed to be the American doetrine, that, on the one
hand, it need not be more technically exact and nice than an
indictment ; while, on the other hand, there is, in some of the
States, below this line an undefined space over which the al-
legation may travel in freedom from those technical restraints
which the indictment demands. The prudent way for the

practitioner is to make the complaint technically exact ; and |

the courts should be cautioned against suffering the rules to
be here relaxed too much, since what is right before one tri-
bunal ought to be equally so before another.

§ 898. A complaint of the kind we are considering may be

‘1 Reg. v. Millard, Dears. 166, 167, par.7; Cummings’s case, 3 Greenl. 51;

6 Cox C. C. 150, 20 Eng. L. & Eq. 595,
referring to Basten v. Carew, 3 B. & C.
649; Wilson v. Weller, 1 B. & B. 57.

2 The State v. Quigg, 1 Green, N. J.
293; In re Perham, 5 H. & N. 30.

8 Campbell v, Thompson, 16 Maine,
117,

4 Rex v. Steward, 2 B. & Ad. 12.

5 Ante, § 242, 247 and note, 383, note,

Frisbie v. Butler, Kirby, 213 ; Com-
monwealth v. Keefe, 7 Gray, 332 ; Keel-
er v. Milledge, 4 Zab. 142 ; Alexander
v. Commonwealth, 1 Bibb, 515; City
Council v. Seeba, 4 Strob. 319; Mayor
v. Mason, 4 Dall. 266 ; Mayor ». Nell, 3
Yeates, 475 ; Ford v.The State, 4 Chand.
148. And see, In re Perham,5 H. & N.
30; Brown v. Mobile, 23 Ala. 722,

[681]

x
§ 899 PRACTICE. [BOOK VI

amended.! It stands, in this respect, on the same foundation
with the criminal information.”

§ 899. The record of a summary conviction seems to have.
been a very nice matter at one time in England, and in some
of our own States. Indeed, in New York, perhaps also in
one or two other States, the same thing appears to be true
even now. Thus, in New York, it is laid down that the rec-
ord must set forth the information or charge ; a summons or
notice to the accused ; his appearance or non-appearance ;
his confession or defence ; the evidence, if he does not con-
fess; the judgment or adjudication; and the true dates
and places, all with precision. And Edmonds, J. observed:
“ The power thus exercised is not in conformity to, but is in
derogation of, the common law, is derived solely from the
statutes ; and all proceedings under the authority so created
must be strictly conformable to the special law in each in-
stance, from which all their force is derived.2.... The ne-
cessity of putting under some restraint a power so summary,
so arbitrary, so materially affecting personal liberty, and so
liable to be perverted to purposes of oppression and wrong,
required from the courts great watchfulness and care.
Hence frequent decisions were made by the highest’ courts
in regard to it, and a system of regulations and restrictions
grew up and became incorporated into the common law.
Those regulations and restrictions were a part of the common
law at the adoption of our Constitution, which made the com-
mon law the law of our land; and, when by our statutes we.
adopted this peculiar mode of trial, we necessarily subjected
it to the principles already established in regard to it.” 4

1 The State v. Batchelder, 6 Vt. 479,
488.

2 Ante, § 611.

8 Referring to Cole’s case, W. Jones,
170; 1 Show. 14.

4 People v. Phillips, 1 Parker C. C.
95,99; Morris v. People, 1 Parker C.

Powers v. People, 4 Johns. 292; Willis
o. Havemeyer, 5 Duer, 447; Simpson
v. Rhinelanders, 20 Wend. 108 ; Birds-
all v. Phillips, 17 Wend. 464. As to
Pennsylvania, see Commonwealth v.
Hardy, 1 Ashm. 410. In South Car-
olina, upon summary convictions, the

C. 441 ; Morewood v. Hollister, 2 Seld.

309. And see further as to this matter

in New York, Bennac ». People, 4 Barb.

164; People v. Miller, 14 Johns, 371 ;
[632]

defendant must be summoned and heard ;
there must be a specific charge against
him, and the substance of the evidence
must be set forth in the record. Sin-
CHAP. L.] CONVICTIONS BEFORE INFERIOR MAGISTRATES. § 901

§ 900. It should be observed, in respect to some of these
views, that the earlier English statutes, giving this summary
jurisdiction to justices of the peace, permitted no appeal from
the decision of the single justice on the facts! Thence it be-
came necessary to hold the justice to the strictest rules which
the courts could properly devise and execute, respecting his
record ; for this was the only means by which his errors of
judgment or of will could be corrected.? But since appeals,
opening the whole case to re-examination, are allowed from
the judgment of the justice, and the hearing before him is, at
the election of the defendant, merely a preliminary matter,
no reason appears why, if the defendant chooses not to appeal,
the record of the justice should be overthrown for any but
grave causes. And though we may not be able to state in
exact outline what is the general American doctrine on this
subject, it is believed to be in substance what is thus indicat-
ed. Still there are some American views, approaching exact-
ness, to be here considered.

§ 901. Thus, as this jurisdiction comes only from statutes,
the terms of the statutes must be precisely followed. And,
as a branch of this doctrine, since the court of a justice of the
peace, like all other inferior tribunals, has no general juris-
diction, but only such as the statute confers, the record must
show upon its face all the facts out of which the jurisdiction

gleton o. Commissioners, 2 Bay, 105;
Geter v. Commissioners, 1 Bay, 354.

1 Paley Convict. 4th ed. 12.

2 In Paley Convict. 4th ed. 10, 11,
we have the following: “ The earliest
statute, upon which a summary convic-
tion by a justice is on record, or of
which a precedent is found in the books,
is that of 33 Hen. 8, c. 6, against the
practice of carrying daggs, or short-
guns. Mr. Lambard has given a pre-
cedent of a conviction upon this stat-
ute; and there appears to have been
one removed into the Court of Queen’s
Bench, by certiorari, as early as the
forty-third year of Elizabeth, 1600 ; and
this very case affords a proof of the ob-

jection, which, in the state of manners
at that day, might well exist against re-
laxing the jealousy of the common law,
by entrusting anything like arbitrary
authority in private hands. It appears
that a sheriff’s officer, going to execute
a writ against a justice of peace for a
debt, and taking with him a hand-gun,
from apprehension of a rescue, the jus-
tice, instead of obeying the writ, ap-
prehended, convicted, and imprisoned’
the officer, till he paid a fine of 10/.,
under color of the act of parliament.”

8 The State v. La Bore, 26 Vt. 765 ;
Keeler v. Milledge, 4 Zab. 142; Bargis
v. The State, 4 Ind. 126; Common-
wealth v. Hardy, 1 Ashm. 410.

[633]
§ 902 PRACTICE. [BOOK VL

is derived.1 According to a Massachusetts case, a conviction
before a justice of the peace is well sustained by a record
which shows, that the defendant, on being asked whether he
was guilty or not of the offence alleged against him, fraudu-
lently and wilfully stood mute; and that, after due examina-
tion of witnesses and a full hearing of the case, he was ad-
judged to be guilty, and was sentenced to imprisonment.” In
Pennsylvania, a summary conviction must contain a finding,
that a special act has been performed by the defendant, and
it must be so described as to be individualized, and appear to
be of the class of unlawful acts. And if the record contains
no definite facts, but only a legal conclusion from facts unre-
corded, a superior court cannot, without compelling a return
of the evidence, or taking testimony of what it was, decide
whether the legal conclusion — that is, the conviction of the
offence —is right or wrong. In such cases, it usually reverses
the conviction, because no act appears upon the record justi-
fying the judgment.®

§ 902. These are, indéed, only general views relating to a
subject which has been swelled, by Paley and others, to a vol-
ume. Yet they will furnish, to the intelligent practitioner,
a helpful guide through paths of statutory interpretation and
practice.

1 Arthur v. The State, 22 Ala. 61; Brackett v The State, 2 Tyler, 152,
Granite Bank v. Treat, 18 Maine, 340; 167.
Barrett v. Crane, 16 Vt. 246; The State 2 Ellenwood v. Commonwealth, 10
v. Kimbrough, 2 Dev. 431; The State Met. 229.
v. Seaborn, 4 Dev. 305; Low vu. The 8 Commonwealth v. Nesbit, 10 Casey,
Commissioners, R. M. Charl. 302; The 3898. And see Commonwealth v. Burk-
State v. Shreeve, 3 Green, N. J. 57; hart, 11 Harris, Pa, 521.

[634]
CHAP. LI] THE RECORD. § 905

CHAPTER LI.

THE RECORD.

Szcr. 903, 904. Introduction.
905-912. Keeping and Making up of the Record.
913-932. Form of the Record.

§ 903. THE matter of this chapter lies so much in uncer-
tainty in the adjudged American law, and it has been so lit-
tle treated of by preceding authors English and American,
that, in order to do any adequate justice to the subject, we
shall be obliged to extend the chapter over a wider space than
might at the first impression seem necessary. And when we
have reached the end, we shall be obliged to confess, that
only general views and principles have been given at some
places where the reader desired specific rules, and instruc-
tions drawn into exact form. The practice of the States dif
fers, the constitution and jurisdiction of tribunals differ, and
the opinions of judges are not quite harmonious one with
another ; therefore, in a work intended for general use, it is
impossible to reduce this whole matter to exact form.

§ 904. What is to be said will be divided as follows: I.
The original Keeping and ultimate Making up of the Record ;
II. The Form of the Record.

I. The original Keeping and ultimate Making up of the
Record.

§ 905. The record of judicial proceedings is always, in the
first instance, taken down by the clerk of the court in the way
of short entries made upon his docket, or of endorsements upon
papers filed, and the like. It is not until after the term of
the court closes, that the extended record, or record proper,
is made’; and, for the making up of this record, resort is had
to the docket entries, to the accompanyjng files of papers, and

[635]
[BOOK VL

§ 907 PRACTICE.

to the several endorsements upon them. These serve as
memoranda for the clerk. In’ England, the extended entry,
or record proper, is written upon parchment ; in the United
States, books made of stout paper are used.

§ 906. The clerk of the court, in making these docket
entries and the like, though practically proceeding in most
instances without any interference or special instructions
from the bench, still, in point of law, acts as the recording
agent of the judge, who is entitled to supervise and control
his entries, and who does sometimes practically interfere with
them.? And suppose the judge discovers that the clerk has
made a mistake in the entry of one of his orders of the pre-
ceding day, he may direct the error in the entry to be cor-
rected.’ Likewise, if the clerk, in entering a verdict of ac-
quittal, prefaces the entry by a statement of the grounds on
which it was rendered, the statement not being authorized by
the jury, the judge may and should direct this matter to be
expunged. Again, after there has been a trial and convic-
tion at the same term at which the indictment was found,
the judge may then direct the clerk, for the purpose of sup-
plying omissions in the docket entries, to indorse on the in-
dictment “filed,” and to date the indorsement according to
the fact, and to sign it; he may also cause an entry to be
made on the minutes, that the indictment was returned into
court. Over such matters the court has control during the
term ; and it may alter or amend them or set them aside, as
justice may require.5

§ 907. Such alterations as those mentioned in the last sec-

1 See Weed v. Weed, 25 Conn. 337 ;
Osborne v. Toomer, 6 Jones, N. C. 440;
Cromwell v. Bank of Pittsburg, 2 Wal-
lace, Jr., 569; Gibson o«. Common-
wealth, 2 Va. Ca. 111; Read v. Sutton,
2 Cush. 115; Croswell v. Byrnes, 9
Johns. 287.

2 «The docket is the record, until
the record is fully extended, and the
same rules of presumed verity apply to
it as to the record. Every entry is a
statement of the act of the court, and
must be presumed to be made by its di-

[636]

rection, either by a particular order for
that entry, or by a general order, or by
a general and recognized usage and
practice, which presupposes such an or-
der.” Shaw, C.J. in Read 2. Sutton,
2 Cush. 115,123. See also, Weighorst
v. The State, 7 Md. 442.

8 Gibson v. Commonwealth, 2 Va.
Cas. 111.

* Commonwealth v. Quann, 2 Va.

‘Cas. 89.

5 Franklin v. The State, 28 Ala. 9.
CHAP. LL]

THE RECORD. , § 908

tion are made to correct errors and secure accuracy in the
record. But sometimes the order itself is changed, and the
entry made to correspond to the altered fact. Thus, a prose-
cuting officer having, by leave of court, entered a nol. pros.
to a part of an indictment, it was held that the court did
right in then permitting him to have this entry stricken from
the docket, the defendant’s witnesses being still in attend-
ance! And, as a more general proposition, while proceed-
ings are in fieri, the court may reconsider and modify or ex-
punge its orders, judgments, and the like,? as a speaker or
writer may withdraw or change a word which he finds does
not convey the idea which on reflection he intends. And an
order, which has been made, may be modified or annulled at
any time during the term. This is so even where the court
is held by two different judges presiding separately ; the sec-
ond one has the same power over the orders of the first as
over his own?

§ 908. When the term of the court has closed, it is too
late to undo, at a subsequent term, what was done at the
former term. <A judgment of the court, for instance, cannot
then be opened and modified, or set aside.* Neither, it has
been held, can the clerk, at a subsequent term, make an en-
try of what truly transpired at the preceding term.. But this
refers to the power of the clerk, proceeding of his own motion.
The court may order nunc pro tunc entries, as they are called,
made to supply some omission in the entry of what was done
at the preceding term ; yet this is a power the extent of which
is limited, and not easily defined. In general, mere clerical

1 The State o Nutting, 39 Maine,
359,

2 Commonwealth ». Goddard, 13
Mass. 455, 458; ante, § 877.

3 The State v. Womack, 17 Texas,
237, And see Van Dyke ». The State,
22 Ala. 57. ,

4 Brush v. Robbins, 3 McLean, 486 ;
Rex v. Hunter, 1 Wils. 163; Common-
wealth v. Shanks, 10 B. Monr. 304;
Morrison v. Dapman, 3 Cal. 255; Van
Dyke v. The State, 22 Ala. 57.

VOL. I. 54

5 McQuillen v. The State, 8 Sm. &
M. 587.

6 The State v. Clark, 18 Misso. 432 ;
Morrison ¥. Dapman, supra; Bilansky
v. The State, 3 Minn. 427; The State
v. Pearce, 14 Ind. 426 ; Jones v. Lewis,
8 Ire. 70 ; Day v. The State, 13 Misso.
422; Brady v. Beason, 6 Ire, 425;
Nelson v. Barker, 3 McLean, 379; Stew-
art v. Bennett, 1 Fla. 437; Pinkston v.
Taliaferro, 9 Ala. 547; Green v, The
State, 19 Ark. 178; Matter of Toney,

[637]
Ҥ 911 : PRACTICE. [BOOK VI.

errors may be amended in this way.! So of the mistake of
the clerk in the name of the judge before whom the indict-
ment was found.”

§ 909. The court, in determining whether a record or a
docket entry requires amendment, in order to represent the
fact, is not bound by the ordinary rules of evidence. It may
resort to any proof which is satisfactory.?

§ 910. It seems pretty plain on principle, that, if the court
would have its records kept in an orderly way, it should di-
rect the mune pro tunc entry of the correction to be made as
follows. In the records of the term at which the entry is or-
dered, let an entry appear to the effect, that, whereas on in-
spection of the record of the preceding term an error therein
appears, &c., it is considered that the same be corrected and
amended, &c., setting out the amendment. Then let the
clerk enter the amendment also, in full, if there is space, in
the margin of the preceding record ; adding a reference to
the record in which the order for the amendment appears.
The books of record, therefore, will, on inspection, show the
amendment ; yet, when the clerk is called on for a transcript,
he will make it as though the record had originally stood as
amended.*

§ 911. There is some difference of practice, in our several

11 Misso. 661; The State v. Maher, 35
Maine, 225.

alter the original record. Said Nash, J.:
“When the amendment is ordered, it

1 Brady v. Beason, supra; Common-
wealth v. Phillips, 11 Pick. 28; The
State v. Ball, 27 Misso. 324 ; Common-
wealth v. Miller, 6 Dana, 315.

2 The State v. Craton, 6 Ire. 164.

® Mayo v. Whitson, 2 Jones, N.C.
231.

* Probably the actual practice of
courts, in this matter, differs. The fol-
lowing is a digest of such cases as are
at hand: Amendments should not be
made by interlineations or by expung-
ing ; the record should show in what
the amendment consists. Farrelly v.
Cross, 5 Eng. 197. When an amend-
ment is ordered, the clerk is bound, not
only to record it, but also actually to

[688]

is the duty of the clerk to obey the or-
der ; not by entering it on the record to
be amended, but altering the record
itself, so as to answer to the amend-
ment, and, when so amended, it stands
as if it never had been defective. When,
therefore, the clerk gives a transcript of
the record, it must be so amended, ex-
clusive of the order; and, if he sets
forth in the transcript when and how he
altered it, it is surplusage, being no part
of that record.” Jones v. Lewis, 8 Ire.
70, 72. Where an order has been en-
tered for amending a record, the’ amend-
ment may be made at any time after-
ward. Marshall v. Fisher, 1 Jones, N.
C.1ll.
CHAP. LI.]

THE RECORD. § 912

States, in respect to the mode of making up and perpetuating
the judicial records. For example, the whole course of things
in this respect is, in Pennsylvania, described as being very
loose! “ With us,” said Gibson, C. J., “a full record is sel-
dom, perhaps never, formally made up; but the docket, which
stands in its place, must contain the substantial parts of it,
from which, together with the other records in the office, such
arecord might be formed. It is because the procéedings re-
main in paper that we have been able to dispense with strict
form as to tense and person ; holding fast, however, to mat-
ter of substance.” 2 There may be also some other States in
which the practice is not so good as it should be; but, if pre-
cedents from Pennsylvania are to be followed: elsewhere, let
us hope that her truly valuable ones will be generally selected
for the purpose, rather than this one.

§ 912. It is a good general proposition, that, when a paper
belonging to the files of a court has been lost, its place may
be supplied by a copy, proved to be such, and by order of
court accepted in place of the original. Such is pretty plain-
ly the true doctrine ; though it would seem, that, in some of
the cases, the proceeding has been conducted on the idea of
the continued existence of the original in theory of law, its
contents being shown by the evidence which supports the cor-
rectness of the copy, and the court permitting this course on
proof of the original being lost.? If a record which is lost
comes up collaterally to be shown in evidence, its loss must
be proved, and then secondary evidence can be given of its
contents ;+ but this is a different matter from the loss of a
paper on which further proceedings may be had. Suppose,
then, an indictment is lost before trial, or before sentence, can
its place be supplied by a copy? If the trial had not been
reached, and the grand jury were at hand, the prosecuting

1 Cromwell: ». Bank of Pittsburg, 2
Wallace, Jr. 569.

2 Hamilton v. Commonwealth, 4 Har-
ris, Pa 129, 133.

3 See’ and compare Eakin v. Vance,
10 Sm. & M. 549; Schwartz v. Orthi-
mer, 4 Ind. 109 ; Ravenscroft v. Gib-
oney, 2 Misso. 1 ; Dayrell v. Bridge, 2

Stra. 1264 ; Evans v. Thomas, 2 Stra.
833; Douglass v. Yallop, 2 Bur. 722 ;
Robinson v. Davis, 1 Stra. 526; Rash
v. Whitney, 4 Mich. 495; Coman »v,
The State, 4 Blackf. 241 ; Wilkerson
v. Branham, 5 Ala. 608.

* Commonwealth v. Roark, 8 Cush.

210.
[639]
§ 912

PRACTICE.

[BOOK VI

officer would generally choose that a new indictment should
be found ; but there are circumstances in which this ques-
tion becomes important, and it has been judicially answered

both ways.!

In matter of principle, it seems difficult to ob-

ject to the supplying of the indictment, provided a copy suffi-
ciently exact is at hand; because, though it is found by the

11. According to an Ohio case, if,
after conviction, an indictment is stolen
from the files, its place may be supplied
by a copy, like lost instruments or plead-
ings. Mount v. The State, 14 Ohio,
295. In Alabama it was held by a ma-
jority of the court, two judges dissent-
ing, that, if an indictment is lost or de-
stroyed, its place cannot be supplied by
the substitution of a copy. It was ad-
mitted, that, in civil cases, a lost dec-
laration or other pleading may be thus
supplied. But, said Phelan, J.: ‘In
criminal proceedings, we are, in many
cases, bound by settled principles of law
and practice to consider, not only that
which abstractly exists, but a certain
visible, external form, as essential to the
legal existence and sufficiency of the
thing itself. For instance, what author-
ity in law will protect an officer in ar-
resting my person on a criminal charge,
or require of me to submit to the ar-
rest? Will a copy of a warrant do ?
Not at all. It must be the original,
lawful warrant itself, which I have a
right to call for and inspect. This rule,
we are inclined to think, has been com-
monly applied to indictments. The pris-
oner has been supposed to have a right
to have an inspection of the indictment
found, and to be arraigned on that only.
.... Admitting, then, that a court
may supply or substitute whatever part
of the proceedings it has power to issue
or create in the first instance, yet the
principle will not embrace an indict-
ment, because the court has no power to
make that, or to direct it to be made.”
Ganaway v. The State, 22 Ala. 772,
774. See also, Reinhart v. The State,
29 Ga. 522,

2, There is in Texas, as probably in

[640]

some of the other States, a statute reg-
ulating this general matter of supply-
ing lost records. In the case of an in-
dictment, the fact of the loss is to be
entered on the minutes of the court,
which avoids the statute of limitations ;
and a new indictment is to be preferred.
The second is to be found in the same
manner as the first, on the testimony of
witnesses, sworn to give evidence before
the grand jury, touching the truth of
the accusation ; and the prosecution is
to be conducted on the second indict-
ment in the same manner as it would
have been on the first. The State v.
Elliott, 14 Texas, 423. Yet this find-
ing of a new indictment is not necessa-
ry; for the statute authorizes, in all
cases, the making good of the missing
matter by copies, where the “ records
and papers, or any part thereof, apper-
taining to the proceedings in any court
of this State may have been, or may
hereafter be, lost or destroyed.” And
Wheeler J. observed: “ It may be very
difficult to make the proof necessary to
supply the loss; and the more conven-
ient course, in practice, doubtless would
be to prefer a new indictment, as in the
case of The State 2. Elliott, 14 Texas,
423. And this may always be done
when the grand jury are in session, and
the State's witnesses are in attendance.
But if the district attorney sees proper
to supply the loss in the mode provided
by the statute, and can prove clearly
and conclusively the exact contents of
the Jost indictment, we see nothing to
prevent it. The proof in this case es-
tablishes conclusively the identity of the
copy with the original indictment for
which it was proposed as a substitute.”
The State v. Adams, 17 Texas, 232, 237.
CHAP. LI] THE RECORD. § 918

grand jury, and not by the court, the order permitting a copy
to take the place of the original is only a recognition by the
court, in a way according with the general rules of evidence,
of the same fact which it recognizes when the original is used ;
namely, that the grand inquest has, by a certain form of
words, presented the prisoner for trial before a petit jury.
And, since rights are not lost by the loss of records and instru-
ments in writing in other instances, no good reason appears
why they should be deemed to be lost in this instance.

II. The Form of the Record.

§ 918. What we are now to consider is the extended rec-
ord, in distinction from the docket entries of the clerk.! It
does not follow, that, because a matter is proper to be entered
upon the clerk’s docket, or indorsed upon the indictment, it
is therefore necessary to be included in the extended record.
The clerk, in drawing this extended record upon the frame-
work of the docket entries and the like, acts under the judi-
cial control the same as he did in making the docket entries;
and, if the former does not conform to the latter, the court
may order such an amendment as shall make it conform.
Where the docket entry of the verdict was, “ guilty of murder
in the second degree,” and the record as ultimately drawn out
by the clerk was, “ guilty of the felony and murder charged,
and that such felony and murder is murder in the second de-
gree,” the court deemed the difference to be immaterial, the
one being the technical expression of the other.2- But where
the docket entry of a judgment was, “to be sold for the pe-
riod of five years out of the limits of the State,” and this was
extended in the record into the words, “to be sold out of the
State of Maryland, at public sale, as a slave, for the period of
five years, under the provision of the act of assembly in such
case made and provided,” the latter was held to be more than
a technical amplification of the former, and to be unjustifia-
ble. The effect of the judgment was changed by the insertion
of the words “at public sale.” @

1 Post, § 922, 3 Watkins v. The State, 14 Md. 419.
2 Weighorst v. The State, 7 Md. 442, This general matter may be further il-

54™ [641]
§ 916 PRACTICE. [BOOK vr.

§ 914. In construing the record, we must consider all the
parts of it in their combination ; and give, if possible, equal
effect to every part.! Thus what is uncertain in one part
may be made plain by what appears in another.? According-
ly, where, in a case of murder, the record did not show at its
commencement that the jury were sworn ; but, at the begin-
ning of its statement of the second day’s proceedings were the
words, “ thereupon also came the defendant, and his counsel,
as also the counsel for the State, together with the jury that
had been impanelled as aforesaid, and sworn as aforesaid, and
the trial of said cause was resumed,” &c.; and further on it
was added, that the jury “return into court, and on their
oaths say,” &c. ; this was held, all its parts being taken to-
gether, sufficiently to set out the swearing of the jury before
the testimony was produced.?

§ 915. Leaving now these general views, let us proceed to
examine the several parts of the record. And, in doing this,
we shall take, as the guide to our inquiry, the “ Record of an
Indictment and Conviction of Murder, at the Assizes,”? which
is printed in the Appendix to the fourth volume of Black-.
stone’s Commentaries. It appears there separated from all
note or comment; but here it will be cut into parts, and each
part will be considered by itself, as follows : —

§ 916. The Caption and Introduction. These matters have.
already furnished the subject for a separate chapter in the
present volume ;* yet the form here given will not be with-
out its instruction to the reader. It isa form used in a court
of special and inferior jurisdiction, when the conviction takes
place in the, same court where the indictment was found. The

lustrated as follows: A criminal infor- that it was not only legal, but laudable,

mation was refused against « magis-
trate for returning, to a writ of certio-
rari, a conviction of a party in another
and more formal shape than that in
which it was first drawn up, and of
which a copy had been delivered to the
party convicted by the magistrate’s
clerk ; the conviction returned being
warranted by the facts. And Lord
Kenyon, C. J. said: “Iam of opinion

[642]

in him to do as he has done, and he
would have done wrong if he had acted
otherwise.” Rex v. Barker, 1 East,
186,

1 Cherry v. The State, 6 Fla. 679.

2 Loper v. The State, 3 How. Missis.
429,

5 Crist v. The State, 21 Ala. 137.

* Ante, § 145 et seq.
CHAP. LI] THE RECORD. § 917

reader should compare the part given in this section with
the discussion in the previous chapter.

‘¢ Warwickshire, Be it remembered, that, at the general session of the
to wit. hon the king of oyer and terminer, holden at Warwick
in and for the said county of Warwick, on Friday the twelfth day of March,
in the second year of the reign of the lord George the Third, now king of
Great Britain, before Sir Michael Foster, knight, one of the justices of the
said lord the king assigned to hold pleas before the king himself, Sir Ed-
ward Clive, knight, one of the justices of the said lord the king, of his court
of common bench, and others their fellows, justices of the said lord the king,
assigned by letters patent of the said lord the king, under his great. seal of
Great Britain, made to them the aforesaid justices and others and any two
or more of them (whereof one of them the said Sir Michael Foster and Sir
Edward Clive, the said lord the king would have to be one) to inquire (by
" the oath of good and lawful men of the county aforesaid, by whom the truth
of the matter might be the better known, and by other ways, methods, and’
means, whereby they could or might the better know, as well within liber-
ties as without) more fully the truth of all treasons, misprisions of treasons,
insurrections, rebellions, counterfeitings, clippings, washings, false coinings,
and other falsities of the monies of Great Britain, and of other kingdoms or’
dominions whatsoever ; and of all murders, felonies, manslaughters, killings,
burglaries, rapes of women, unlawful meetings and conventicles; unlawful
uttering of words, unlawful assemblies, misprisions, confederacies, false alle-
gations, trespasses, riots, routs, retentions, escapes, contempts, falsities, neg-
ligences, concealments, maintenances, oppressions, champarties, deceits, and
all other misdeeds, offences, and injuries whatsoever, and also the accesso-
ries of the same, within the county aforesaid, as well within liberties as with-
out, by whomsoever and howsoever done, had, perpetrated, and committed,
and by whom, to whom, when, how, and in what manner; and of all other
articles and circumstances in the said letters patent of the said lord the king
specified, the premises and every or any of them howsoever concerning ;
and for this time to hear and determine the said treasons and other -the
premises, according to the law and custom of the realm of England ; and
also keepers of the peace, and justices of the said lord the king, assigned to
hear and determine divers felonies, trespasses, and other misdemeanors com-
mitted within the county aforesaid, by the oath of Sir James Thomson, bar-
onet, Charles Roper, Henry Dawes, Peter Wilson, Samuel Rogers, John
Dawson, James Philips, John Mayo, Richard Savage, William Bell, James
Morris, Lawrence Hall, and Charles Carter, esquires, good and lawful men
of the county aforesaid, then and there impanelled, sworn, and charged to
inquire for the said lord the king and for the body of the said county, it is
presented.”

§ 917. The Jurisdiction of the Court. If the reader has
made the comparison requested, he has seen, that, in this form,
[643]
§ 917 PRACTICE. [BOOK VI.

there are some things not strictly necessary to be stated ; and’
there are other things which should be given when the indict-
ment is before a court of special and inferior jurisdiction, yet
not, when it is before a superior court of general jurisdiction.
“The rule for jurisdiction,” it has been observed, “ is, that
nothing shall be intended to be out of the jurisdiction of a
superior court, but that which specially appears to be so; and,
on the contrary, nothing shall be intended to be within the
jurisdiction of an inferior court but that which is so expressly
alleged.” ? “If this is to be accepted as the true rule of the
record, still there may be differences of judicial opinion as to
its application. Thus, according to a New Jersey case, it is
not necessary for the record to show where the court, being
one of general jurisdiction, was held at the term when the
cause was tried; because the place for the holding of the
courts is fixed by the statute, which it will be presumed the
judges obeyed, since the court could not lawfully sit in any
other place.2 On the other hand, in Tennessee, such things
as this, it would seem, must appear in. the caption of the rec-

1 As to this last point, see ante, § 153,
154, 901.

2 Peacock v. Bell, 1 Saund. Wms.

Ed. 73, 74. The role was stated in like
terms, by Smith, J. in the Mississippi

sumed in favor of the jurisdiction of a
justice of the peace. The State v. Hart-
well, 35 Maine, 129. Inferior tribunals,
not proceeding according to the course
of the common law, are strictly confined

court, as follows: “The only difference
between the judgment of a court of
general jurisdiction, and one of special
and limited jurisdiction, is this; in the
one case, the jurisdiction of the court
is presumed, until the contrary appear ;
in the other, a party claiming a right
under it must know affirmatively, that
the court had jurisdiction.” Byrd
v. The State, 1 How. Missis. 168, 173.
Superior courts are presumed to do
everything in the prescribed manner
and form. The State v. Kimbrough, 2
Dev. 431; The State v. Seaborn, 4 Dev.
305. In the absence of proof, the pre-
sumption of law is, that a justice of the
peace, when acting as an examining
magistrate, has not transcended his ju-
risdiction. People v. Mack, 1 Par-
ker C. C. 567. Nothing can be pre-

[644]

within the authority specially conferred
upon them, and the ground of their ju-
risdiction must appear on the face of
their proceedings. The State v. Metz-
ger, 26 Misso. 65. Where parties act
by virtue of a special statutory author-
ity, it must appear that they had the
qualification required by the statute. In
such case, ‘the proceedings must show
upon their face every thing necessary
to the jurisdiction. The State v. Wil-
liamstown Turnpike, 4 Zab. 547. See
also, Proctor v, The State, 5 Harring,
Del. 387.

8 West v. The State, 2 Zab. 212. So,
in California, the term of the court is
sufficiently stated, if the day is given on
which the indictment is found. People
v. Beatty, 14 Cal, 566,
CHAP. LI.]

THE RECORD.

§ 917.

ord. Thus, where the caption was, ‘State of Tennessee,
Stewart county, Monday, October 26, 1846. Court met ac-
cording to adjournment, present,” &c. ; it was held to be in-

sufficient.

“ From this statement,” said Green, J., “‘ we can-

not see that the court, by whom the indictment was taken,
was holden at the court-house, in Stewart county, where by
law it is required to be holden.” ! But matters of this sort
depend much upon a consideration of the entire statute law

1 Bob v. The State, 7 Humph. 129;
Carpenter v. The State, 4 How. Missis.
163. Some further peints adjudged, re-
lating to matters of this sort, are the fol-
lowing: Where, by the caption to the
record, the court appeared to have been
opened on the first day of the term, by
the clerk, at the time and place pre-
scribed by law, and adjourned by him
from day to day until the appearance
of the judge, it will be presumed that
the court was held on each day at the
same place. Smith v. The State, 9
Humph. 9. Where a cause was con-
‘tinued to a term beginning on a, certain
day, and the record shows that it was
tried on a subsequent day ; the contin-
uance from day to day in the same term
need not appear on the record, as the
whole term is regarded as but one day.
Berrian v. The State, 2 Zab. 9. A court
may either sit without adjournment, or
it may adjourn from one day to another,
within the term allotted to it ; but it is
not necessary to state the adjournment
on the record. The State v. Martin, 2
Tre. 101. If the record of a criminal
case shows, that, in the course of the trial,
the court had, on an adjournment from
one day until the next, placed the jury
in the charge of a bailiff, the legality of
the manner in which the jury was com-
mitted to his care, will be presumed.
Dias v. The State, 7 Blackf. 20. The
fictions of law that a term of court is
but one day, and that a day is indivis-
ible, do not prevent the court from in-
quiring as to the day or the hour if it
becomes important. People v. Beatty,
14 Cal. 566. <A caption to a record

which does not state where the court
was holden at which the conviction was
had, or that w grand jury of good and
lawful men was impanelled, is defective,
and the judgment must be arrested for
either of these causes. Grandison |v.
The State, 2 Humph. 451. Where the
record showed, that the court was held
at L., that the jurors were from L.
county, and that the grand jury were
sworn to inquire for the body of the
county of L., this was adjudged sufficient
to show, that the court was held for L.
county, without any express allegation |
of the fact. Melton v. The State, 3
Humph. 389. If an indictment is found
in one court and tried in another, and
an order for the delivery of the indict-
ment to the latter does not appear of
record, the omission is fatal. Cruiser
v. The State, 3 Harrison, 206; The
jurisdiction of a court to which a crim-
inal has been transferred by change of
venue, is not ousted by a failure to en-
ter on the minutes of the court at the
first term a transcript of the records of
the case. Calhoun v. The State, 4
Humph. 477. Where the conviction is
at a term of the court which is by law
prescribed for the disposition of crim-
inal business’ only, the record need not
aver that the term was held for the dis-
position of such business. Turns v.
Commonwealth, 6 Met. 224. Where a
record states that a court was held be-
fore the Hon. J. P. (who was one of the
judges of the superior court of North
Carolina), without adding that he is one
of the judges, &c., this is sufficient.
The State v. Lewis, 3 Hawks, 410,
[645]
§ 919 PRACTICE. [BOOK ‘VI.

of the State relating to the jurisdiction of the courts, and the
established usage in making up the records.

§ 918. Names, Impanelling, Swearing, fc., of the Grand
Jury. We have already considered the principal matters of
this sort.! Some points are given or repeated here in a note.”
As to the swearing of the grand jury, the indictment must
appear in the record to have been found upon oath. And if
the record undertakes to set out the oath, and sets out one
which is insufficient in form, it will be ill. But it need not
give the form; and, if it states that the jurors were duly
sworn, not mentioning by what form of words, this will be
sufficient.’

§ 919. Appointment of Foreman, and the like. Looking
at the matter as one of principle there can be no doubt, that,
as a question of propriety and good order, there ought to be
a record made by the clerk of the appointment of foreman of
the grand jury, together with the names of the grand jurors,
and this should become a part of the permanent record of the
term, but should not be repeated in the special record of each
particular case. Yet suppose such a thing is omitted from the
general record, can each particular person who is indicted take
advantage of the omission, and have the proceedings against

1 Ante, § 154, note, 155. * Bell v. The State, 5 Eng. 536;

2 Tn an English case, it was not stated
on the record that the jurors on the pan-
el were good and lawful men of the
county. It appeared that by the venzre
the sheriff was ordered to return good
and lawful men of the county, and that
for this purpose he had impanelled and
returned the persons on the panel. It
was held that there was no error. Man-
sell v. Reg. 8 Ellis & B. 54. In Ohio
the record should state the names of the
grand jury, but it need not mention
their particular qualifications. Parks v.
The State, 4 Ohio State, 234; Mahan
v. The State, 10 Ohio, 232. The record
need not show that the jurors were
electors and freeholders ; though, if they
were not, this is good cause of challenge.
Shoemaker v. The State, 12 Ohio, 43.

[646]

Bivens v. The State, 6 Eng. 455 ; Drake
v. Brander, 8 Texas, 351; Arthur v.
The State, 3 Texas, 403; Pierce v. The
State, 12 Texas, 210; Russell v. The
State, 10 Texas, 288; Wrocklege ».
The State, 1 Towa, 167. According to
a Mississippi case, the statement, in the
bill of Indictment, that the jury were
sworn, will not cure the record, if this
matter is not mentioned in it. Foster
v. The State, 81 Missis. 421. Where
the record states that the foreman of the
grand jury was sworn, this is not suffi-
cient to raise the presumption that the
residue were sworn, in the absence of
any finding of record. Cody v. The
State, 3 How. Missis. 27.
CHAP. LL] THE RECORD.

§ 921

him reversed ? There appears to be no good reason why he
should, especially if the court is one of general jurisdiction.
And that he cannot is probably the better law, as seen in the
midst of somewhat conflicting adjudications.

§ 920. The Tense. Chitty says:? “ In the record, all the
acts of the court ought to be stated in the present tense, as
preceptum est, not preceptum fuit ; but the acts of the par-
ties themselves may be properly stated as past.2 And there-
fore, if it states that the sheriff was commanded instead of ts
commanded, the error will be fatal.” 4 But in North Caro-
lina it is held, that, though the acts of the court are more
correctly stated in the present tense, yet, the use of the past
having been long practised in the State, it will not be ad-
judged fatal. And we have seen that it is not fatal in
Pennsylvania.§

§ 921. The Indictment. Next in order, according to the
form given by Blackstone, is the indictment, which is set out
in the record verbatim. It is, in this form, as follows : —

“ That Peter Hunt, late of the parish of Lighthorne in the said county,
gentleman, not having the fear of God before his eyes, but being moved
and seduced by the instigation of the devil, on the fifth day of March, in
the said second year of the reign of the said lord the king, at the parish of

Lighthorne aforesaid, with force and arms, in and upon one Samuel Collins,
in the peace of God and of the said lord the king then and there being, fe-

1 The matter of naming the grand
jurors has been already considered.
Some other points adjudged are the fol-
lowing : The fact, that the appointment
of the foreman of the grand jury was
not entered’on the minutes of the court,
is not material where the indictment is
endorsed by the foreman and returned
to court. People v. Roberts, 6 Cal. 214.
Where the record showed the appoint-
ment of A as foreman, and then an in-
dictment was found, signed “ B, fore-

man”; the court presumed, in the ab-:

sence of proof to the contrary, that A
had been discharged and B appointed.
Mohler v. People, 24 Ill. 26. Where
the wrong Christian name of the fore-
man was recorded in the book, but he
was sometimes known by one and

sometimes by the other, and the judge
allowed the record to be amended, this
was held to be no error. Jackson v. The
State, 11 Texas, 261. Where the rec-
ord finds that D. B. was sworn as fore-
manof the jury, this necessarily implies
that he was appointed, and is sufficient.

‘So, if it appears that the jurors were

sworn, it will be intended that they were
“then and there” sworn. Woodsides
v. The State, 2 How. Missis. 655.

2 1 Chit. Crim. Law, 720.

38 1 Mod. 81; Comb. 358; 2 Saund.
898, note ; 1 T. R. 320.

* 2 Saund.'393.

5 The State v. Martin, 2 Ire. 101; The
State v. Reeves, 8 Ire. 19.

6 Ante, § 911.

[647]
§ 922 PRACTICE. [BOOK VI.

loniously, wilfully, and of his malice aforethought did make an assault; and
that the said Peter Hunt with a certain drawn sword, made of iron and steel,
of the value of five shillings, which he the said Peter Hunt in his right hand
then and there had and held, him the said Samuel Collins, in and upon the left
side of the belly of him the said Samuel Collins, then and there feloniously,
wilfully, and of his malice aforethought did strike, thrust, stab, and pene-
trate; giving unto the said Samuel Collins, then and there with the sword
drawn as aforesaid, in and upon the left side of the belly of him the said Samuel
Collins, one mortal wound of the breadth of one inch, and the depth of nine
inches ; of which said mortal wound he the said Samuel Collins, at the parish
of Lighthorne aforesaid in the said county of Warwick, from the said fifth
day of March, in the year aforesaid, until the seventh day of the same month
in the same year, did languish, and languishing did live ; on which said sev-
enth day of March in the year aforesaid, the said Samuel Collins, at the
parish of Lighthorne aforesaid, in the county aforesaid, of the said mortal
wound did die: and so the jurors aforesaid, upon their oath aforesaid, do
say, that the said Peter Hunt him the said Samuel Collins, in manner and
form aforesaid, feloniously, wilfully, and of his malice aforethought did kill
and murder, against the peace of the said lord the now king, his crown, and

dignity.”

§ 922. Indorsements and Docket Entries, as distinguished
from the Extended Record. This matter has been alluded to
before.1 And although the distinction here spoken of exists,
it is impossible to state, on judicial authority, where the line
of demarcation runs. Still it is very plain, that, on the
ground of this distinction, many of the apparent conflicts in
the authorities relating to the question of the record may be
reconciled ; while, on the other hand, it will remain true that
there are other conflicts which are not in any way reconcila-
ble. To point to one or two instances in which there may be
a reconcilement, we may also observe, that, when an indict-
ment is found by the grand jury, the foreman writes upon it
the words “ A true bill,” and signs it with his name as fore-
man.” Now, there are plainly certain stages of the proceed-
ing in which this indorsement upon the indictment is more
or less material ; yet, in the record as finally made up and
extended, this indorsement, according to the form given us
by Blackstone, does not appear. The single statement, that
‘‘it is presented” so and so, covers all such things. And
we may presume, that the same reasoning applies to such -a

1 Ante, § 913. 2 Ante, § 188 et seq.
[648]
CHAP. LI.] THE RECORD. § 923

matter as the indorsement of the prosecutor’s name on the
indictment.1_ Thus, according to a North Carolina case, if
the record shows that a grand jury was drawn and impan-
elled, sworn, and charged to inquire for the State, of and con-
cerning all offences, &c., and by such grand jury “it was
presented in manner and form following, that is to say,” set
ting out the bill of indictment, this is sufficient without copy-
ing the entry of “a true bill,” usual on the backs of indict-
ments. And Pearson, J. said: “It is not necessary that the
record should set out the manner in which a bill of indict-
ment was presented, or the evidence and memoranda and en-
tries from which the record was made up. It is sufficient and
most proper that the record should only set out the fact that
it was presented by the grand jury. This avoids all that use-
less detail with which records are frequently encumbered ;
such as, who was appointed foreman, the signature of the
foreman, the signature of the attorney for the State, what wit-
nesses were sworn and sent, and (as we find, in many cases,
by an examination of the files of the court) who was the con-
stable of the grand jury. Such matters constitute no part of
the record, but are minutes from which the record is made
up.”? It requires but a little exercise of our natural reason
to teach us, that in the nature of things there must be docket
entries and other like memoranda of steps taken in the cause,
which, while serving a necessary temporary purpose, like the
scaffolding of a building in the process of being erected,
should be left as unrecorded rubbish when the perfected
structure of the finished cause is to appear standing for the
inspection of future ages upon the record.

§ 923. Still there are, in our American books, decisions of
points whose place, in view of the distinction drawn in our
last section, does not always very clearly appear. Thus: the
record must show, that an indictment, found by the grand
jury, and indorsed by the foreman’ as a true bill, was by the
grand jury returned into court, or judgment in the case will

1 Ante, 4 131 et seq.
2 The State v. Guilford, #Jones, N. C. 83, 85.

VOL. I. 55 [649]
§ 923 PRACTICE. [BOOK VI:

be arrested! The fact that an indictment. is returned and
presented in court must appear of record.? If it does not,
judgment will be arrested.2 Where as in the record, it ap-
pears, the indictment was found and returned into the court
below by the grand jury, and was there treated by the pris-
ouer as a valid indictment so found and returned, the judg-
ment cannot be reversed because of any mere failure in the
record to show that the grand jury was regularly selected
and summoned, in a case where the contrary does not ap-
pear.* ‘Parol evidence, to supply the omission of the record
of the presentment of an indictment to the grand jury, is in-

admissible.®

1 Chappel v. The State, 8 Yerg. 166.

2 Green v. The State, 19 Ark. 178;
Jenkins v. The State, 30 Missis. 408.

8 Adams v. The State, 11 Ind. 304;
Gardner v. People, 20 Ill. 430. Wher
a bill of indictment has been found by
the grand jury, and indorsed by the
foreman “a true bill,” it must be
brought into court, and presented by
the grand jury, arid then the finding
Must be recorded. And an omission to
record the finding cannot be supplied
by a paper purporting to be an indict-
ment, with an indorsement “a true
bill,” signed by the person who was
foreman of the grand jury at that time.
Nor can it be supplied by the recital, in
the record, that he “ stands indicted,”
nor by his arraignment, nor by his plea
of not guilty. Commonwealth v. Ca-
wood, 2 Va. Cas. 5:7. See Hite v. The
State, 9 Yerg. 198 ; Brown v. The State,
7 Humph. 155. If it appears from the
record that an indictment was returned
into court a true bill, though there be
nothing to show that the indictment was
sent by the attorney-general, ex officio,
the court will, after verdict, presume the
indictment was submitted to the grand
jury, in the mode contemplated by the
statute. Bedford v. The State, 2 Swan.
Tenn. 72. A presentment becomes part
of the record of court by being returped
into the court by the jury, and filed by

[650]

Greene, Iowa, 249.

the clerk, without any memorandum
upon the minutes of the court of these
facts. But it is otherwise of an indict-
ment. Said Green, J.: “An indict-
ment is only signed by the foreman of
the grand jury ; and, therefore, unless
it appears from the record that the bill
was returned by the jury into open court
“a true bill,’ it cannot appear that it
has been before them, and found by
them. Notso in the case of a present-
ment. That is signed by all the jurors,
and we have thus an assurance that they
have acted on it and found the facts
it presents.” The State ». Muzingo,
Meigs, 112, 113. In Florida, the fact
of its not appearing by the record that
the grand jury returned their bill in the
circuit court, indorsed “a true bill” by
the foreman, will not authorize the Su-
preme Court to grant an arrest of judg-

. Ment. Frances v, The State, 6 Fla. 306.

By force of a statute, in Iowa, the bring-
ing into court of the indictment must up-
pear of record. The State v. Glover, 3
If the indictment
was properly indorsed, returned, and
filed, it is no objection that its return was
not entered on the minutes of the court.
Mose v. The State, 35 Ala. 421.
4 Shaw v. The State, 18 Ala. 547.

5 The State ». Glover, 3 Greene,
Towa, 249.
CHAP. LL] THE RECORD. § 924

§ 924. The remainder of the Record down to the Ver-
dict: —

“Whereupon the sheriff of the county aforesaid is commanded, that he
omit not for any liberty in his bailiwick, but that he take the said Peter
Hunt, if he may be-found in his bailiwick, and him safely keep to answer
to the felony and murder whereof he stands indicted. Which said indict-
ment the said justices of the lord the king above named, afterwards, to wit,
at the delivery of the jail of the said lord the king, holden at Warwick in
and for the county aforesaid, on Friday the sixth day of August in the said
second year of the reign of the said lord the king, before the right honor-
able William lord Mansfield, chief justice of the said lord the king, assigned
to hold pleas before the king himself, Sir Sydney Stafford Smythe, knight,
one of the barons of the exchequer of the said lord the king, and others
their fellows, justices of the said lord the king, assigned to deliver his said
jail of the county aforesaid of the prisoners therein being, by their proper
hands to deliver here in court of record in form of the law to be determined.
And afterwards, to wit, at the same delivery of the jail of the said lord the
king of his county aforesaid, on the said Friday the sixth day of August, in
the said second year of the reign of the said lord the king, before the said
justices of the lord the king last above named and others their fellows afore-
said, here cometh the said Peter Hunt, under the custody of William
Browne, esquire, sheriff of the county aforesaid (in whose custody in the
jail of the county aforesaid, for the cause aforésaid, he had been before
committed), being brought to the bar here in his proper person by the said
sheriff, to whom he is here also committed: And forthwith being demanded
concerning the premises in the said indictment above specified and charged
upon him, how he will acquit himself thereof, he saith, that he is not guilty
thereof; and thereof for good and evil he puts himself upon the country «
And John Blencowe, esquire, clerk of the assizes for the county aforesaid,
who prosecutes for the said lord the king in this behalf, doth the like:
Therefore let a jury thereupon here immediately come before the said
justices of the lord the king last abovementioned, and others their fellows
aforesaid, of free and lawful men of the neighborhood of the said parish of
Lighthorne in the county of Warwick aforesaid, by whom the truth of the
matter may be the better known, and who are not of kin to the said Peter
Hunt, to recognize upon their oath, whether the said Peter Hunt be guilty
of the felony and murder in the indictment aforesaid above specified, or not
guilty : because as well the said John Blencowe, who prosecutes for the said
lord the king in this behalf, as the said Peter Hunt, have put themselves
upon the said jury. And the jurors of the said jury by the said sheriff for
this purpose impanelled and returned, to wit, David Williams, John Smith,
Thomas Horne, Charles Nokes, Richard May, Walter Duke, Matthew Lion,
James White, William Bates, Oliver Green, Bartholomew Nash, and Henry
Long, being called, come ; who, being elected, tried, and sworn, to speak the
truth of and concerning the premises, upon their oath say.”

[651]
§ 925 PRACTICE. [BOOK VI.

§ 925. Presence of the Prisoner. We have already con-
sidered in what cases and at what times it is necessary for
the prisoner to be personally present in court.1. And it ap-
pears to be a matter pretty well settled, that, where the per-
sonal presence is necessary in point of law, the record must
show the fact.2 Yet this need not be by express aver-
ment; for, if the fact of the presence results necessarily from
other matter stated, this is sufficient.? And if the presence
is once stated, and it clearly appears from the whole record
to have been continuous, this will be sufficient.t In a Vir-
ginia case, Samuels, J. observed of the facts under review
and of the law as follows: ‘The record, made up as it now
stands, shows, that, on the 24th of April when a motion was
made to set aside the verdict of the jury, and again on the
26th of April when the motion was overruled and the judg-
ment rendered, the plaintiff appeared by attorney ; and there
is nothing to show, that he was personally present in court
on either day. This is probably the result of mere inadver-
tence in making up the record, yet this court must look only
to the record as itis. .. . . It is the right of any one, when
prosecuted on a capital or criminal charge, ‘ to be confronted
with the accusers and witnesses’ ; and it is within the scope of
this right that he be present, not only when the jury are hear-
ing his case, but at any subsequent stage when anything may
be done in the prosecution by which he is to be affected.”
Therefore the judgment below was reversed. In Pennsylva-
nia the distinction has been taken, that, while the record in a
capital case must show affirmatively the prisoner’s presence
in court ;® in a case not capital, though it be for felony, this
matter may be left to presumption. Said Knox, J.: “In
felonies not capital, it is allowable to presume that everything,

1 Ante, § 682 et seq. Stephens v. People, 4 Parker C. C. 896;

2 Scaggs v. The State, 8Sm.& M. The State v. Langford, Busbee, 436.
722; The State v. Matthews, 20 Misso. * Stephens ». People, 19 N. Y. 549.
55 ; The State v. Cross, 27 Misso. 332; 5 Hooker v. Commonwealth, 13 Grat.
Sperry v. Commonwealth, 9 Leigh, 623. 763, 766.

8 The State v. Craton, 6 Ire. 164; 6 Dunn »v, Commonwealth, 6 Barr,
Sweeden v The State, 19 Ark. 205; 384.

(652, ‘
CHAP. LL] THE RECORD.

§ 927

was rightly done, until the contrary appears.” ! This doc-
trine is not recognized in other cases, which the writer has
examined, decided elsewhere; and it is inconsistent with
some of the foregoing decisions, referred to in this section.

§ 926. Joinder of Issue. The form of record which we
have here given, sets out the full formal plea of the prisoner,?
and the joinder of issue by the person who appears for the
prosecution. All this matter actually passes at the arraign-
ment, ore tenus, if at all. But generally, at the present day,
and in our States, there is nothing really said, except the
words “ Not Guilty,” pronounced by the prisoner. Yet the
rest is supposed to be said. And it has been laid down in
New Jersey that the omission to insert the similiter, in join-
ing issue, may be corrected at any time in the record ; since,
in point of fact, it is added only when the extended record is
made up.2 Chitty even observes:* “Nor is it essential that
any issue should be stated, as having been joined between the
crown and the defendant.” 5 And, in accordance with this,
the similiter has been held in some of our States to be an
unnecessary part of the record.®

§ 927. The Petit Jury. The record must in some way
show that the petit jury were sworn, else it will be insuffi-
cient.?. But where a record set forth the indictment, the an-
swer of the prisoner to the inquiry how he would acquit him-
self, the reply of the attorney-general, the order for a jury to
come; and then proceeded, “and afterwards, in the said case,
The State v. Thomas H. Christmas, indictment murder, the
following jury being sworn and impanelled, to wit, &c., who
say that the prisoner Thomas H. Christmas is guilty of the
felony and murder in manner and form as charged in the bill

It is not error in the record, that the
prisoner “ puts himself upon the coun-

1 Holmes v. Commonwealth, 1 Casey,
991, 224.

2 Ante, § 577 and note.

8 Berrian v. The State, 2 Zab.9. See
Johnson v. People, 22 Ill. 314.

4 1 Chit. Crim. Law, 720.

5 8 Harg. St. Tr. 286, 287; 4 Bur.
2085.

6 Hawkins v. The State, 7 Misso.
190; The State v. Carroll, 5 Ire. 139,

55 *

try,” instead of the words, “ to be tried
by God and the country.” The State
v. Reeves, 8 Ire. 19. The record need
not show a formal arraignment. Hayr-
man v. The State, 11 Ind. 311.

7 Nels v. The State, 2 Texas, 280 ;
Boose v. The State, 10 Ohio State,
575,

[653]
§ 928 PRACTICE. [BOOK VI.

of indictment; ” it was held to be adequate in this respect.
In a New York case it was deemed good cause for the reversal
of a capital judgment against the defendant, rendered at a
court of oyer and terminer, that no precept for summoning
the petit jury was returned and filed.? But the law is not so
in all the States, and in respect to all the courts ;% as will be
evident when we consider the different methods adopted in
the different States for selecting and bringing together the
petit jury. It was held, in Tennessee, not to be necessary
for the venire facias to be spread upon the minutes of the
court; but the record should show the return of the venire,
and the selection of the proper jury. And, according toa
Pennsylvania decision, where process is issued to the sheriff
and county commissioners to draw a jury for a court of oyer
and terminer, it is error if the record does not show, either
expressly or by necessary inference, that the jurors have been
legally drawn. In New Jersey, if the record shows that the
petit jurors were elected and tried, the law will infer that
they were good and lawful men, summoned at the proper
place. These may be deemed specimen points of what we
find in the books. In Massachusetts, there is no positive
rule of law which requires the names of the jurors who find
a defendant guilty on an indictment, to be inserted in the
record of each particular case.’
§ 928. The Verdict and Judgment of Conviction : —

“ That the said Peter Hunt is guilty of the felony and murder aforesaid,
on him above charged in the form aforesaid, as by the indictment aforesaid
is above supposed against him; [and that the said Peter Hunt, at the time
of committing the said felony and murder, or at any time since to this time,
had not nor hath any goods or chattels, lands or tenements, in the said
county of Warwick, or elsewhere, to the knowledge of the said jurors.]
And upon this it is forthwith demanded of the said Peter Hunt, if he hath
or knoweth anything to say, wherefore the said justices here ought not upon

1 The State v. Christmas, 4 Dev. & 5 Eaton v. Commonwealth, 6 Binn.

Bat. 410. 447.
2 McGuire v. People, 2 Parker C. C. ® West v. The State, 2 Zab. 212.
148, : See, also, The State v. Price, 6 Halst.
8 Turns v. Commonwealth, 6 Met. 203.
224, 7 Turns v. Commonwealth, supra.

* Conner v. The State, 4 Yerg.187. See ante, § 922.
[654] }
CHAP. LL] THE RECORD. § 931

the premises and verdict aforesaid to proceed to judgment and execution
against him: who nothing farther saith, unless as he before had said.
Whereupon, all and singular the premises being seen, and by the said jus-
tices here fully understood, it is considered by the court here, that the said
Peter Hunt be taken to the jail of the said lord the king of the said county
of Warwick, from whence he came, and from thence to the place of execu-
tion on Monday now next ensuing, being the ninth day of this instant Au-
gust, and there be hanged by the neck until he be dead; and that after-
wards his body be dissected and anatomized.”

§ 929. The Verdict of Manslaughter and, Allowance of
Clergy. .

“ That the said Peter Hunt is not guilty of the murder aforesaid, above
charged upon him; but that the said Peter Hunt is guilty of the felonious
slaying of the aforesaid Samuel Collins ; [and that he had not nor hath any
goods or chattels, lands or tenements, at the time of the felony and man-
slaughter aforesaid, or ever afterwards to this time to the knowledge of the
said jurors.] And immediately it is demanded of the said Peter Hunt, if
he hath or knoweth anything to say wherefore the said justices here ought
not upon the premises and verdict aforesaid to proceed to judgment and
execution against him: who saith that he is a clerk, and prayeth the bene-
fit of clergy to be allowed him in this behalf.. Whereupon, all and singular
the premises being seen, and by the said justices*here fully understood, it
is considered by the court here, that the said Peter Hunt be burned in his
left hand, and delivered. And immediately he is burned in his left hand,
and is delivered, according to the form of the statute.”

The words above enclosed in brackets have reference to
certain forfeitures which are unknown in, this country, and
are therefore to be omitted from our forms.

§ 930. Judgment on an Acquitial. Chitty says:+ “When
the defendant is acquitted upon the merits, by the verdict of
a jury, or discharged on the allowance of a plea of pardon,
the proper entry is, —

“ Whereupon all and singular the premises being seen and fully under-
stood by the court of our said lord the king now here, it is considered and

adjudged by the said court here, that the said defendant be discharged of
the premises and do depart hence without day in this behalf.”

§ 931. Summary and Conclusion. Chitty sums up the
contents of a record in a case of felony as follows:? It “ states
the session of oyer and terminer — the commission of the

1 1 Chit. Crim. Law, 718, 719. 2 1 Chit. Crim. Law, 720.
[655]
§ 932 PRACTICE. [BOOK VI

judges — the presentment by the oath of the grand jurymen
by name — the indictment — the award of the capias or pro-
cess to bring in the offender — the delivery of the indictment
into court — the arraignment — the plea — the issue — the
award of the jury process— the verdict— the asking the pris-
oner why sentence should not be passed on him — and the
judgment of death passed by the judges.” So in Illinois it
has been laid down, that a record of a criminal case, after the
caption stating the time and place of holding the court, should
consist of the indictment, properly indorsed, as found by the
grand jury, the arraignment of the accused, his plea, the im-
panelling of the traverse jury, their verdict, and the judg-
ment of the court. It is not necessary it should appear by
the record that the names of the witnesses were indorsed on
the back of the indictment, that the prisoner was furnished
with a copy of the indictment, that the court committed the
jury to the charge of a sworn officer during a recess, that
they were placed in charge of a sworn officer when they re-
tired to consider of their verdict, or that the oaths to the wit-
nesses were administered according to law. The defendant
should take advantage of any irregularity, by objecting at the
time ; and, if his objection was overruled, the fact should be
preserved by a bill of exceptions.t

§ 932. This chapter might be extended by some further
citations of points ‘and authorities, but it is not deemed best.
The subject, as it rests in the American law, is draped some-
what in mist ; and, to dispel the mist, it should be approached
by those several lights, one by one, which shine from the pe-
culiar jurisprudence, and statute laws, and practice, of the
respective States. This is a work, not for an author writing
for all the States, but for the practitioners and the courts in
each State.

1 McKinney v. People, 2 Gilman, 540; Pate v. People, 3 Gilman, 644.
[656]
CHAP. LIL] WRIT OF ERROR. § 934

CHAPTER LII. ;

THE WRIT OF ERROR.

§ 983. Tue writ of error is known equally in civil causes
and in criminal. In accordance, therefore, with the rule
which substantially limits our discussions to the criminal law,
in distinction from the civil, we shall abstain from any close
examination of the nature and province of this writ. The
form of, the writ, and of proceedings thereon, in criminal
causes, may be found in various places in the books.!

§ 934. There are some differences of judicial opinion on
points connected with this writ; but, in the language of Shaw,
C. J., who stated the doctrine as held in Massachusetts and
some of the other States: “ A writ of error is understood to
be a writ ex debito justitie, where, by reason of any mate-
rial error or mistake in a judgment actually rendered in a
court of record, the judgment is illegal, and ought not to
stand. The following description of a court of record, as the
result of the cases cited, is commended by Mr. Dane: ‘ When-
ever a new jurisdiction is erected by statute, and the court or
judge that exercises that jurisdiction acts as a court or judge
of record, according to the course of the common law, a writ of
error lies to their judgment; but, where they act in a sum-
mary method, or in a new course, different from the common
law, only a certiorari lies. A power to fine and imprison
is sometimes stated as the distinguishing characteristic ; but,
as such power may be given by special statute, or otherwise,
it is no certain test. The power of proceeding according to
the course of the common law, though the jurisdiction be
newly given by statute, seems to be a more certain one.”

1 As, for instance, 2.Gude Crown Parker C. C. 495; O’Leary v. People,
Pract. 207; Coates v. People, 4 Par- 4 Parker C. C. 187.
ker C. C. 662; Lake v. People, 1 2 Referring to 5 Dane, Ab. 56, 57.
[657]
§ 936 PRACTICE. [BOOK VI.

Therefore it was held, that a writ of error lies to reverse the
judgment of a justice of the peace; and this notwithstanding
the law had given to the defendant the right of appeal.t ,
§ 935. But from this general statement it is necessary to
descend: a little into particulars ; and we shall then see, that
this writ is not everywhere and in all circumstances held to
be ex debito justitie. The following is extracted from Chit~
ty:? “A writ of error, to reverse a judgment, lies from all
inferior jurisdictions to the King’s Bench, and from the King’s
Bench to the House of Peers; and it may be brought in the
King’s Bench to reverse an attainder before the Lord High
Steward.2 It may be brought by the party himself, or, after
his death, by his heir or executor, to reverse an attainder of
treason or felony ; but by no other persons, whatever.interest
they may claim in the reversal.t When once judgment is
given, this is the only remedy for any defect in the proceed-
ings® But it never can be obtained before judgment ; and,
therefore, a defendant, who has been admitted to clergy, can-
‘not thus set aside the conviction, but may remove the indict-
ment into the King’s Bench, and there take advantage of
mistakes, in the shape of exceptions.®
§ 936. “ The history and nature of writs of error, in crim-
inal cases, is stated by Lord Mansfield with great ability and
clearness.’? According to his authority, until the reign of
Queen Anne, a writ of error, in any criminal case, was held
to be merely ex gratia. It was then laid down, that writs of
error in crirninal cases were not grantable ex debito justitia,
but ex gratia regis; ‘and that, in such case, a man ought
to make application to the king; and he will refer to his coun-
sel; and, if they certify that there is cause, he will grant a
writ of error.’® It never was granted except when the king,
from justice when there was really error, or from favor where

&:
1 Thayer v. Commonwealth, 12 Met, Eliz. 225, 275, 558; 1 Leon. 325; 1
9, 10, Salk. 295 ; Co. Lit. 18, note; 2 Hawk.
2 1 Chit. Crim, Law, 747 ~ 749. P. C. ¢.50,§ 11; 4 Bl. Com. 392.

8 1 Sid. 208; 2 Hawk. P. C. c. 50, 5 Cro. Jac. 404.
$17; 4 Bl Com. 392; 3 B. & P. ® Cro. Eliz. 489.
354, ! 7 4 Bur. 2550 - 2552,

* 5 Co.111a; Owen, 147, 148 ; Cro. 8°] Vern. 170, 175.

[658]
CHAP. LII.] WRIT OF ERROR. § 937

there was no error, was willing the judgment should be re-
versed. After writ of error granted, the attorney-general
never made any opposition, because either he had certified
‘there was error,’ and then he could not argue against his
own certificate ; or the crown meant to show favor, and then
he had orders ‘not to oppose.’ The king, who alone was con-
cerned as prosecutor, and who had the absolute power of par-
don, having thus expressed his willingness that the judgment
should be reversed, the Court of King’s Bench reversed it
upon very slight and trivial objections, which could not have
prevailed if any opposition had been made, or if the precedent
had been of any consequence. The form of reversal, ‘ for
the errors assigned, and other errors appearing upon the rec-
ord,’ delivered the court from the necessity of specifying any ;
and they, therefore, frequently reversed it when there was
really no error at all, because it was evidently with the king’s
concurrence ; and, as he had at all times the power of refus-
ing the writ, the precedent was thought of no importance.?

§ 987. “ But, in the third year of Queen Anne, it was re-
solved by ten of the judges, that, in every case under treason
and felony; a writ of*error was not merely a matter of favor,
but of right, and ought to be granted.? Still it remains en-
tirely in the breast of the crown, whether it shall be granted
or refused on an attainder of felony or treason ; so that the
king may absolutely refuse, though the error is ever so mani-
fest.2 And, in misdemeanors, notwithstanding the determi-
nation that it is a matter of right, this was only intended to
mean when there is probable cause of error.* It does not,
therefore, issue as a matter of course, even in these cases, but
under the fiat of the attorney-general.5 This, it is true, he is
bound to grant, wherever probable grounds are laid, as a
matter, not of indulgence, but of justice; and the court will
order him, if he improperly refuse.6 And the attorney-

1 Lord Mansfield, 4 Bur. 2550. Com. 392; 2 Saund. 101 a, note; 2
2 4 Bur. 2550; 2 Salk. 504. Salk. 504.

84 Bur. 2551; 1 Sid. 69; 1 Bulst. 4 4 Bur. 2551; 4 Bl. Com. 391.
71; 3 Mod. 42; 1 Vern. 170, 175; 1 5 4 Bur, 2551.
Bur. 641; Cas. temp. Hardw. 251 ; 6 8 Mod. 177; Fortes. 87; 4 Bur.
2 Hawk. P. ©. c. 50, § 11; 4 Bl. 2580, 2550.
[659]
§ 940 PRACTICE. [BOOK VI.

general may take the opinion of the court before it is
granted,” }

§ 938. In the United States, this writ is very much reg-
ulated by statutes, which differ in the different States. But
aside from statutory provisions, it is not held necessary in all
our States to apply to the attorney-general, or to the court,
to have the writ of error. allowed ; but, in the language of
Wash, J., sitting in the Missouri tribunal, “ the party will be
entitled of right to his writ in all cases where, in England, he
would have it with or without the consent of the crown.” ?
And, as observed by Chase, C. J., in the Maryland court, the
fiat of the attorney-general is ‘“ never applied for.” 8

§ 989. On the other hand, there are States in which the
English practice, or something like it, prevails, and the writ
of error can be employed only when specially allowed hy the
attorney-general or by the court, And this is so in some of
the States by statutes ; as, in Ohio, where the statute author-
izes the courts, “on good cause shown, to issue writs of er-
ror.”5 In Massachusetts, where the writ is generally suable
as of right, a statute provides, that “no writ of error upon a
judgment for a capital offence shall issue, unless allowed by
one of the justices of the Supreme Judicial Court, after no-
tice given to the attorney-general, or other attorney for the
Commonwealth.” 6

Ԥ 940. There are some decisions as to the courts from and
to which the writ of error will lie; but these pertain’ too

1 Parker C. C 474; Colt v. People, 1

1 Id. ibid.
Parker C. C.611; Temple v. Common-

2 Mitchell v. The State, 3 Misso.

283. And see Colloway v. The State,
1 Misso. 211.

8 The State v. Buchanan, 5 Har. &
J. 317, 362. Seealso, Anderson v. The
State, 5 Har. & J.174; Manly v. The
State, 7 Md. 135.

4 Miles v. Rempublicam, 4 Yeates,
319 ; Commonwealth v. Profit, 4 Binn.
424; Loftin v. The State, 11 Sm. &
M. 358; Lavett v. People, 7 Cow. 339;
Jones v. Commonwealth, 2 Va. Cas,
224; Baker v. Commonwealth, 2 Va.
Cas. 353, And see Safford v. People,

[660]

wealth, 1 Va. Cas. 163.

5 Farris v. The State, 1 Ohio State,
188.

& Webster v. Commonwealth, 5 Cush.
386, 394. And see Stout v. People, 4
Parker C. C. 132; People v. Hendrick-
son, | Parker C. C. 396.

7 Commonwealth v. Brown, 3 J.J.
Mar. 597 ; Commonwealth ». Mitchell,
3 J. J. Mar. 6830; Commonwealth ».
Jefferson, 6 B. Monr. 313 ; Tomlin v.
The State, 19 Ala. 9; Abrahams v.
Commonwealth, 11 Leigh, 675 ; An-
CHAP. LII.] WRIT OF ERROR.

§ 942

much to the usage of particular States to require special ex-
amination here. It is held in the Supreme Court of the
United States, that no writ of error, of prohibition, or of cer-
tiorari will lie to a Circuit Court, in acriminal cause. And
the only way in which a decision, in a criminal cause, can be
taken for revision from a circuit court into the Supreme
Court, is upon a certificate of the judges of the latter tribu-
nal, that their opinions are opposed upon a question raised at
the trial. “ But certainly,” said Taney, C. J., “the party
had no right to ask for such a certificate, nor could it have
been granted consistently with the duty of the court, if the
judges agreed in opinion, and did not think there was doubt
enough to justify them in submitting the question to the judg-
ment of.the court.” }

§ 941. The writ of error does not lie until final judgment
has been rendered, disposing of the whole cause, including all
the counts.2. And if it is brought, as it usually is, to correct
an error in law, it reaches only to those errors which pertain
to the record ; and it does not reach preliminary matters, and
such as are pleadable only in abatement, and collateral papers
which belong merely to the files of the court and not to the
record, and the like. But such errors, for instance, in the
indictment, as would be fatal on general demurrer, or on
motion in arrest of judgment, may be reached by writ of error.*

§ 942. We have already seen,’ that the writ of error lies

derson v. Commonwealth, 4 Leigh, 693 ;
Anderson v. Commonwealth, 5 Leigh,
740; People v. Stearns, 23 Wend. 634;
The State ». Tuomey, 5 How. Missis.
50; Hayden v. Commonwealth, 10 B.
Monr. 125 ; United States v. Eliason,
16 Pet. 291.

1 Ex parte Gordon, 1 Black, 503,
505. is

2 People v. Merrill, 4 Kernan, 74 ;
Miles v. Rempublicam, 4 Yeates, 319 ;
Loftin ». The State, 11 Sm. & M. 358 ;
People v. Nestle, 19 N. Y. 583; The
State v. Dillon, 3 Hayw. 174 ; Rex v.
Kenworthy, 3 D. & R. 173,1 B. &C.
711. And see Bank of Lexington 2.

VOL. I. 56

Taylor, 2 Sm. & M. 27; Hedges ».
Madison, 1 Gilman, 806. )

8 Nash v. Reg. 9 Cox C.C. 424, 10
Jur. n. 8. 819; Campbell v. Common-
wealth, 2 Va. Cas. 314; Turns v. Com-
monwealth, 6 Met. 224; Byrd v. The
State, 1 How. Missis. 247; Grant v.
People, 4 Parker C. C, 527 ; Common-
wealth v. Offener, 2 Va. Cas. 17 ; Samp-
son v. Commonwealth, 5 Watts & S.
385 ; Commonwealth v. Church, 1 Barr,
105; Turner v. The State, 28 Missis.
684; People v McMahon, 2 Parker C.
C. 663 ; Rex v. Wildey, 1.M. & S. 183.

+ Jesse v. The State, 28 Missis. 100.

5 Ante, § 934.
[61],
§ 944 PRACTICE. [BOOK V1.

only to those courts whose proceedings are conducted accord-
ing to the common law, and which are termed courts of rec-
ord. Where the court is not of record, or where the pro-
ceedings have not extended to final judgment, the remedy is
by certiorari, and not by writ of error.

§ 943. When, therefore, the writ of error appears to be the
proper remedy, it may be resorted to for the correction even
of errors which might have been reached by other methods
at an earlier stage of the proceeding. Even if there might
have been an appeal, which was not taken, still the writ of
error may be resorted to.? Said Howard, J.: “ Although
this remedy by appeal, in civil cases, takes away the remedy
by a writ of error by implication as a general rule, yet, in
criminal cases, the reason for the rule ceases, and there it
does not apply. The applicant, in such cases, is required to
recognize with surety to prosecute his appeal, or stand com-
mitted. His remedy by appeal would often be more onerous
than that by a writ of error, to reverse an erroneous judg-
ment; and therefore it is, that his right to proceed by error is
not taken away or impaired by giving him the right of ap- |
peal.” 8

§ 944. A few other points, as settled in particular States,

1 Reg. v. Bothel, Holt, 157; Reg. z.
Paty, 2 Salk. 503, 504, 2 Ld. Raym.
1105 ; Commonwealth v. Simpson, 2
Grant, Pa. 438 ; Wilde ».. Common-
wealth, 2 Met. 408; John v. The State,
1 Ala. 95; Ex parte Tarlton, 2 Ala.
35; Reg. v. Leighton, Fortes, 178, 175.
In 2 Saund. Wms. Ed. 101, note, it is
said: “A distinction is taken by Lord
Holt, that, wherever a new jurisdiction
is created by act of parliament, and the
court or judge that exercises this juris-
diction acts as a court or judge of rec-
ord, according to the course of the common
law, a writ of error lies to their judg-
ments; but, where they act in’ a sum-
mary method, or in a new course different
rom the common law, a writ of error does
not lie, but a certiorari. Groenvelt v.
Burwell, 1 Salk. 263, Carth. 491,Comyns,

[662] ©

76, 80; 5. P.1 Salk. 144. If an erroneous
judgment be given in a court which is
not a court of record, no writ of error
lies, but a writ of false judgment. F.N.
B. 38, A, 7thed; Co. Lit. 288 5. Buta
common-law court cannot correct the
errors of a court not of record by writ
of false judgment,any more than those
of an inferior court of record by writ of
error, if the proceedings of such court
are not according to the course of the
common law. Therefore it was held,
that a writ of false judgment does not
lie from the Southwark Court of Re-
quests to a court of common law.
Scott @. Bye, 2 Bing. 344, 9 Moore,
649.”

2 Ante, § 934.

8 Barnett v. The State, 36 Maine, 198,
200, 201.
+ CHAP. LIL]

WRIT OF ERROR. § 946

appear in a note.t In some of our States, the writ of error
is available as well to the State, or Commonwealth, as to the
defendant,? while in others it is not.

§ 945. It is a correct general proposition, that, when upon
writ of error the judgment is found to be erroneous, it will
be reversed. Yet, under the proper circumstances, the court
may reverse it in part, and affirm it in part ;* though, if it is
such an entire thing as does not admit of separation into parts,
this cannot be done.*

§ 946. But there is a difference of judicial opinion in this
country upon the question, whether, if the error is simply in
the sentence, the court can, instead of reversing the judg-
ment, either itself alter the sentence to correspond with the
law, or remit the case to the lower court with directions to
have it altered there; or whether, on the other hand, the

1 A writ of error, and not of habeas
corpus, is the proper remedy to reverse
an additional punishment wrongfully
awarded against a convict, under the
Massachusetts statute of 1817, c. 176.
Riley’s case, 2 Pick. 172; Cooke, pe-
titioner, 15 Pick. 284. Where the writ
of error is stricken from the docket, on
account of a division of opinion in the
court, the court below may enter an af-
firmance. Styles v. The State, 28 Ga.
388. Ina case of felony a writ of error
may be awarded at, and made return-
able to, the same term in which the
judgment was rendered. Lazier v. Com-
monwealth, 10 Grat. 708. A prisoner
who had been convicted of a felony ob-
tained a writ of error and supersedeas,
and pending the same broke jail and
escaped. Thereupon the court direct-
ed so much of the order as required
the writ to operate as a supersedeas, to
be discharged, and the writ to be dis-
missed on a day certain, unless the pris-

oner should then be again in custody.

Sherman v. Commonwealth, 14 Grat.
677. As ageneral rule, judgment on
a writ of error will follow success in the
particular issue. It is proper, however,
to examine the whole record, and to

adjudge either for the plaintiff or de-
fendant, according to the legal rights,
as they may on the whole appear, with-
out regard to the issue in law which
may have been raised and decided be-
tween the parties. Stephen v. The
State, 11 Ga. 225. After conviction
in a criminal case, it is a matter with-
in the discretion of the court, whether
or not to stay proceedings to await a
decision on a writ of error. People v.
Holmes, 3 Parker C. C. 567. A writ of
error in a criminal case, taken under
the provisions of the act of 1847, oper-
ates ipso facto as a supersedeas, upon the
defendant’s complying with the condi-
tions prescribed in § 4 of the act, and it
is to be recognized and obeyed as such
by the ministerial officers of the law,
without the necessity of a special order
in relation thereto. Rabon v. The State,
7 Fla. 10.

2 Crim. Law, I. § 863; Temple v.
Commonwealth, 1 Va. Cas. 163; Peo-
ple v..Nestle, 19 N. Y. 583.

8 Montgomery v. The State, 7 Ohio
State, 107; Lougee v. The State, 11
Ohio, 68.

* Christian v, Commonwealth, 5 Met.
530,

[663]
§ 947 PRACTICE. [BOOK V1

entire proceedings shall be reversed, and the prisoner set a
liberty. In England, the latter course is pursued ; and it i:
held that the court above has no power, either to send back
the record to have it corrected, or itself to pronounce the
_proper sentence.! Such also is the doctrine in some of oui
States.2 But in Mississippi, the court ordered the case to be
remanded, with directions to the lower tribunal to render the
proper sentence.? And in Pennsylvania the doctrine is clear-
ly maintained, partly by reason of statutes regulating the
matter, but as well also at the common law, that, when the
error is in the sentence, the court will pronounce such judg-
ment as should have been rendered by the court below.*

§ 947. In Massachusetts, it was provided by statute, in
1851, that, “ whenever a final judgment in any criminal case
shall be reversed by the Supreme Judicial Court, upon a writ
of error, on account of error in the sentence, the court may

1 Silversides v. Reg., 2 Gale & D. 617;
Bourne v. Rex, 2 Nev. & P. 248, 7°A,
& E. 58; Rex v. Ellis, 5 B. & C. 395, 8
D, & R. 178.

2 Christian v. Commonwealth, 5 Met.
530; Tully ». Commonwealth, 4 Met.
357.

8 Kelly v. The State, 3 Sm. & M.
518.

4 In a late case, Lewis, C. J. stated
the matter as follows: “The doubts
which formerly existed respecting the
power of the Supreme Court, upon re-
versing a judgment in a criminal case,
are entirely dissipated. We have au-
thorities to show, that the Supreme
Court, on reversal of a judgment in a
criminal case for error in the sentence,
has power to pass such sentence as the
court below ought to have passed. Drew
v. Commonwealth, 1 Whart. 279; Dan-
iels v. Commonwealth, 7 Barr, 371;
Commonwealth v. Ellis, 11 Mass. 465 ;
Kane v. People, 8 Wend. 203. It has
also the power to award a procedendo in
a criminal case ; Rex v. Kenworthy, 1
B. & C. 711; and it may in its discre-
tion remit the record, with orders to
proceed on the indictment after the

[664]

reversal of the erroneous judgment.
Commonwealth v. McKisson, 8 S. & R.
420 ; Commonwealth v. Church, 1 Barr,
105. The actof 16th June, 1836, con-
ferred no new powers in this respect.
It was designed to remove doubts which
had arisen in consequence of conflicting
decisions. The common Jaw embodies
in itself sufficient reason and common
sense to reject the monstrous doctrine,
that a prisoner whose guilt is established
by a regular verdict is to escape pun-
ishment altogether, because the court
committed an error in passing the sen-
tence. If this court sanctioned such a
rule, it would fail to perform the chief
duty for which it was established.”
Beale v. Commonwealth, 1 Casey, 11,
22, It is probably a mistake, however,
to suppose, that, if the prisoner were
discharged on the writ of error, where
such discharge is the course authorized
by law, he would not be liable to a sec-
ond indictment, conviction, and punish-
ment. For the discharge comes from
his own request, whereby he waives the
protection of the provision of law which
exempts from asecond jeopardy.
CHAP. LIL] WRIT OF ERROR. § 948

render such judgment therein as should have been rendered,
or may remand the case for that purpose to the court before
whom the conviction was had.” And it was held that this
provision related to past as well as future judgments ; and
that, as so construed, it was not unconstitutional as being an
ex post facto act.

§ 948. This chapter might be somewhat further extended ;
but it is believed fo be now sufficient to guide those practi-
tioners who-are familiar with the writ of error in civil causes.

1 Jacquins.v. Commonwealth, 9 Cush, 279.

56 * [665]
§ 951 PRACTICE. [BOOK VI.

CHAPTER LIII.
THE WRIT OF CERTIORARI.

§ 949. Someruine has already been said of this writ. Its.
‘form, and the course of proceedings under it, the reader will
find elsewhere.? It “is,” says Chitty, “‘ an original writ, is-
suing out of Chancery or the King’s Bench, directed in the
king’s name to the judges or officers of inferior courts, com-
manding them to return the records of a cause depending be-
fore them, in order that the party may have more sure and
speedy justice before him, or such of his justices as he shall
assign to determine its merits.” 4

§ 950. This writ is much employed in England, and in
a few of our States,> for the purpose of removing criminal
causes, after indictment found and before trial, from a lower
into a higher court, to be tried in the latter.6 Likewise it is
within the discretion of the Court of Queen’s Bench to bring
up a cause from a lower court by certiorari, after conviction

by verdict, and before sentence.’
§ 951. But it is not best even to attempt an enumeration

of the uses of this writ. It is

1 Ante, § 942.

2’See People v. McCormack, 4 Par-
ker C, C. 9; Stephens v. People, 4 Par-
ker C. C. 396 ; The State v. Gustin, 2
Southard, 744; O'Leary v. People, 4
Parker C. C. 187.

8 1 Chit. Crim. Law, 371.

* Fitz. Nat. Brev. 245, A; Bac. Ab.
Certiorari, A; Com. Dig. Certiorari, A,
1; Burn Just. Certiorari.

5 The State v. Jones, 6 Halst. 289;
Case v. Shepherd, 2 Johns. Cas. 27, 28 ;
People v. Baker, 3 Parker C. C. 181;
The State v. Morris Canal and Banking
Company, 1 Green, N. J. 192; Ken-

[666]

often an accompaniment of a

drick », The State, Cooke, 474; People
v. Jewett, 3 Wend. 314; The State
v. Gibbons, 1 Southard, 40; Nicholls
v. The State, 2 Southard, 539; The
State wv. Dayton, 1 Southard, 57 ; Peo-
ple v. Runkel, 6 Johns. 8334; The
State v. Jacobs, Busbee, 218.

® Archb. Crim. Pl. & Ev. 18th Lond.
ed. 80 ; Reg. » Probert, Dears. 30, 18
Eng. L. & Eq. 111.

7 Reg. v. Potter, 2 Ld. Raym. 937,
988. And see People v. Peabody, 26
Barb. 437; Mackaboy v.. Common-
wealth, 2 Va. Cas, 268.
CHAP. LUI. ]

WRIT OF CERTIORARI. § 958

habeas corpus writ, or of a writ of error.2 And as already
intimated,’ it lies to courts of inferior jurisdiction to correct
such errors in their proceedings as cannot be reached by a writ
of error.t Yet it is not every error which can be corrected
in this way ;° as, for instance, questions upon the admission
or rejection of evidence cannot be reviewed on certiorari.®
After judgment, in an inferior court of record, or court pro-
ceeding according to the course of the common law, the rec-
ord can be removed only by writ of error.”

§ 952. The court to which the writ of certiorari is direct-
ed, has no power to decline responding to its mandate.® It
does not send up the record bodily, but a transcript of it.?
The writ must be directed to one having the custody of the
record, or control over it; and a returm by any other person
is unauthorized, and a nullity.

§ 953. These are a few of the various points which relate
to this writ. It is a writ of very extensive use, both in civil
and criminal proceedings ; but it would not be within the
plan of this work to discuss it more minutely. °

1 The State v. Sue, Conference, 54.
See Webster v. Commonwealth, 5 Cush.
386.

2 The State v. Shelton, 3 Stew. 343.

8 Ante, § 942.

# Cross v. Smith, 1 Salk. 148; Rex
». Plowright, 3 Mod. 94 ; Groenvelt v.
Burwell, 1 Ld. Raym. 454, 469 ; Reg.
v, Bethell, 6 Mod. 17; People 7. Tur-
ner, 1 Cal. 152.

5 People v. Van Alstyne, 32 Barb.
131; Whitney v. Board of Delegates,
14 Cal. 479; The State v. Stenart, 5
Strob. 29.

5 People v. First Judge of Columbia,
2 Hill, N. Y. 398.

7 Rex v. Seton, 7 T.R. 873; Rex
v. Yorkshire West Riding, 7 T. R. 467.
But see Reg. v. Bethell, 6 Mod. 17, Holt,
157.

8 The State v. Hunt, Coxe, 287.

9 Nicholls v. The State, 2 Southard,
539.

10 The State v. Howell, 4 Zab. 519;
Commonwealth v. Franklin, 4 Dall.
316.

[667]
§ 955 PRACTICE. [BOOK VIL

CHAPTER LIV.

OTHER WRITS AND PROCESSES.

§ 954. Tuerz are, besides the writs of error and of certio-
rari, various other writs under which relief may sometimes
be obtained in criminal cases. Among these are, —

The Writ or Petition of Review. It is held, in Maine, that
‘the provisions of the statutes regulating reviews extend only
to civil cases. There can be no review, after final judgment,
in a criminal cause.1, A New York statute authorizes a writ
of error on behalf of the people, “to review any judgment
rendered in favor of any defendant upon any indictment for
any criminal offence, except where such defendant shall have
been acquitted by a jury.” And it is held, that this provis-
ion does not extend to judgments rendered before its pas-
sage,” but it extends to such as are afterward rendered even
on indictments which were pending when it was passed. It
is not limited to cases where there has been a verdict of a
jury.2

§ 955. Mandamus. This is a proper remedy to compel
inferior tribunals to perform the duties required of them by
law.* It is sometimes resorted to in criminal cases.5 Its
province is, not to direct the inferior tribunal how to decide
a case, but to proceed with it to a decision. Said Kent, J.,
sitting in the New York court: “ All courts within the sev-
eral. counties have, from the first foundation of our judicial
system, been regarded by law and by practice as inferior

1 Wells’s case, 2 Greenl. 322,

Carpenter ». Bristol, 21 Pick. 258 ; The
2 People v. Carnal, 2 Seld. 463.

State v. The Justices, Dudley, Ga. 37.

8 People v. Clark, 3 Seld. 385.

4 Commonwealth v. Hampden, 2 Pick.
414; Chase v. Blackstone Canal, 10
Pick, 244; Springfield ». Hampden, 4
Pick. 68; Johnson v. Randall, 7 Mass.
340; Strong, petitioner, 20 Pick. 484;

[668]

5 Reg. v. Brown, 7 Ellis & B. 757;
Ex parte Mahone, 30 Ala. 49.

5 Commonwealth v. Judges of Com-
mon Pleas, 3 Binn. 278; Roberts v.
Holsworth, 5 Halst. 57 ; Squire v. Gale,
1 Halst. 157,
CHAP. LIV.] OTHER WRITS AND PROCESSES. § 957

courts ; they can be compelled to duty by a mandamus ; they
can be restrained from usurpation by prohibition.’ }

§ 956. Habeas Corpus.. This is a well-known writ, into
the consideration of which it is not proposed to enter here.
But it is often employed, in various ways, in criminal cases.

§ 957. So there are various other writs and processes, to
which the practitioner in the criminal courts may sometimes
have occasion to resort. The purpose of this chapter is not
to treat fully of any of them, but simply to recall some of
them to the reader’s attention, and to remind him that crimi-
nal procedure may sometimes sweep through the whole field
of common-law practice.

1 People v. Chenango Sessions, 2 Caines Cas. 319.

[669]
§ 959 [Book VI.

PRACTICE.

CHAPTER LV.

JOINT AND SEPARATE TRIALS.

Introduction.

Severance of Defendants in their Trials.

The Joint Trial.

The Trial when the Charge is Several.

Where there are separate Indictments for like Offences.

Sect. 958.
959 - 965.
966 -978.

979.
980 - 983.

§ 958. Wuen several persons are jointly indicted, they are
generally tried jointly. But this is not necessarily so. We
shall, therefore, consider: I. The Severance of the Defend-
ants in their Trials; II. The Rule$ which govern when the
Defendants are Tried Jointly; III. The Trial when the
Charge is Several; IV. The Trial when there are separate
Indictments for like Offences.

I. The Severance of the Defendants in their Trials.

§ 959. When the indictment is properly made joint against
more persons than one, it is never the right of the defendants,
as the matter stands at the common law, to demand separate
trials. Yet separate trials may be permitted by the judge,
at his discretion, on cause being shown him. This doctrine
applies alike in felony and in misdemeanor, in capital cases,
and in those which are not.! The application for the sepa-
rate trial usually comes from the prisoner, but it may equally

1 Whitehead v. The State, 10 Ohio
State, 449; Maton v. People, 15 Ill.
536 ; The State v. Soper, 16 Maine,
2938 ; Commonwealth » Manson, 2
Ashm. 31; The State v. Yancey, 3 Brev.
306 ; Bixbe v. The State, 6 Ohio, 86 ;
The State v. Wise, 7 Rich. 412 ; The
State v. Littlejohn, 1 Bay, 316; Mc-
Allister v. The State, 17 Ga. 618;
United States v. Marchant, 4 Mason,
158, 12 Wheat. 480 ; Mask v. The State,

[670]

32 Missis. 405 ; Hawkins v. The State,
9 Ala. 137; The State ». Smith, 2 Ire.
402 ; The State v. Conley, 89 Maine,
78; United States v. Kelly, 4 Wash.
C. C. 528 ; The State ». Yancy, 1 Tread.
241; Commonwealth ». Robinson, 1
Gray, 555; United States v. Wilson,
Bald. 78; United States v. Sharp, Pet.
C.C. 118. See People v. Howell, 4
Johns. 296.
CHAP. LV.]

JOINT AND SEPARATE TRIALS. § 960

be made on behalf of the State ;! and it appears to be the
doctrine, in some of our States, that the separate trial may be
demanded by the State as matter of right? By statute, in
some of the States, defendants are authorized, generally, or
in some cases, to demand separate trials, if they choose, as
matter of right.3 It is too late to make this demand after the
jury are sworn, and a part of the evidence is heard.*

§ 960. The grounds on which the discretion of the court
is moved to permit separate trials, are various. Thus, if one
of the defendants wishes to avail himself of the testimony of
the wife of another one, he applies for a separate trial; and, as
a general rule, it will be granted him. The reason is, that,
if the trial is joint, the wife cannot be a witness either for or
against any one of the parties, any more than for or against
her husband, — a: rule of evidence, which, in some cases, ap-
pears to be rather technical, but still it is well established on
the authorities.6 Yet, if the trials are separate, the wife may,
as a general rule, testify in favor of or against any bne oth-
er than her husband.’ The limit to this rule is, that, in con-
spiracy and those other offences in which the acquittal of one
defendant works the acquittal of the rest, her interest and
legal identity with her husband will exclude her from testi-
fying in behalf of any one of the defendants, the same as in
behalf of her husband. In such a case, since the benefit
sought from the separate trial could not accrue to the appli-
cant, it will not be granted.® ;

1 Allen v. The State, 10 Ohio State,
287; People v. Stockham, 1 Parker C.
C. 424,

2 Curran’s case, 7 Grat. 619, 627.
See post, § 970. *

3 People v. McIntyre, 1 Parker C. C.
871; Johnson v. The State, 14 Ind. 574;
Winkle v. The State, 20 Ga. 666 ; Law-
rence v. The State, 10 Ind. 453 ; Jones
v. The State, 1 Kelly, 610; People z.

-Labra, 5 Cal. 183.

4 McJunkins v. The State, 10 Ind.
140.

5 Commonwealth v. Marfson, 2 Ashm.
31; Commonwealth . Easland, 1 Mass.
15.

6 Commonwealth v. Easland, supra ;
Commonwealth v. Robinson, 1 Gray,
555 ; Mask v. The State, 32 Missis. 405 ;
Collier v. The State, 20 Ark. 36 ; Rex v.
Smith, 1 Moody, 289 ; Rex v. Locker, 5
Esp. 107 ; Rex v. Frederick, 2 Stra. 1095.
It was once observed by way of dictum,
however, that “ her incompetency ex-
tends no further than to the exclusion
of anything that might tend to crim-
inate her husband.” The State v. Brad-
ley, 9 Rich, 168. *

7 Thompson v. Commonwealth, 1
Met. Ky. 13.

® Commonwealth v. Manson, supra.

[671]
/[BooK VL

§ 962 PRACTICE.

§ 961. If separate trials are granted, no one of the persons
jointly indicted can be a witness for any other one, uutil the
case is disposed of by verdict or plea, as to him; though it
need not proceed to the sentence.1 Therefore the court will
not order a separate trial for this purpose.? But instead of
this, if the prosecutor, in the English practice, wishes to make
use of one of the defendants as a witness, the court will per-
mit a verdict of acquittal to be taken at once, in his case, and
thus he will be rendered competent.? In our own States, the
ready method in such circumstances would ordinarily be for
the prosecuting officer to enter a nol. pros. as to the defend-
ant whose testimony he wished to use.*

§ 962. When, in the case of a joint trial, the evidence in
behalf of the prosecution is all in, and there is no testimony
implicating one of the defendants, it is, if appears, the duty
of the court to permit the verdict to be immediately taken
acquitting this one, and then he will be a competent witness
for the rest.5 If there is some evidence, though slight,
against the defendant whose testimony is thus desired by the
others, the court may, in its discretion, subypit his case to the
jury at this stage of the case ; and, if he is acquitted, he will
be a competent witness. The line, however, between duty
and discretion in this matter, is not very clearly drawn in the
cases.© If one has been discharged on a pleain abatement,

1 Ante, § 511; The State v. Nash, 7
Iowa, 347 ; Campbell v. Commonwealth,
2 Va. Cas. 314; People v. McIntyre, 1
Parker C. C. 871; The State v. Roberts,
15 Misso. 28. Where the indictments
against the two or more persons are sep-
arate, and they are separately tried, they
may be witnesses for or against one
another. United States ». Henry, 4
Wash. C. C. 428. And in some of the
States where the statutes have author-
ized defendants jointly indicted to claim
separate trials, the courts permit them,
on such trials, in consequence of the
statutory provisions, to testify for one
another, if they choose. People v. La-
bra, 5 Cal. 183; Everett v. The State,
6 Ind. 495; Marshall v. The State, 8

[672]

Ind. 498 ; Sloan v. The State, 9 Ind.
565°; Hunt v. The State, 10 Ind. 69.

2 United States v. Gibert, 2 Sumner,
19.

8 Rex v. Rowland, Ryan & Moody
N.P. 401.

4 Ante, § 508, note.

5 The Bounty case, cited 1 East, 313 ;.
The State v. Roberts, 15 Misso. 28.
And see The State v. Blannerhassett,
Walk. Missis. 7.

8 Commonwealth v. Eastman, 1 Cush.
189, 218 ; People v. Bill, 10 Johns. 95;
The State 7. Bean, 36 N. H. 122; The
State v. McLendon, 5 Strob. 85; Jones
v. The State, 13 Texas, 168 ; Fitzger-
ald v. The State, 14 Misso. 418; The
State v. Shaw, 1 Root, 134; The State
CHAP. LV.] JOINT AND SEPARATE TRIALS. . § 966

he may be a witness for the rest ;? or, if he has pleaded guilty,
and no sentence has been pronounced against him, he may be
a witness.?

* § 963. The offence of conspiracy, being committed only
when more persons than one join in the act of wrong-doing,
rests upon somewhat different ground, in respect to this mat-
ter of separate trial, from most other offences. There may,
indeed, be separate trials for this offence ; as, for instance, if
one only appears to the indictment, he may be tried alone,
especially if he so requests.2 And where one of two con-
spirators, who are jointly indicted, dies before trial, the living
one may then be tried alone.t But except when some reason
of this sort prevails, no separate trials will be allowed in cases
of conspiracy.®

§ 964. In like manner, since one person cannot commit an
affray alone, if two persons are indicted jointly for this of-
fence, they cannot, any more than two conspirators, be tried
separately. But if four are indicted for a riot, an offence
which requires the concurrence of three or more persons for
its commission, and two of the four die, the other two may
be tried, convicted, and punished.’

§ 965. Where two persons, who are jointly indicted, are
tried separately, a petit juror who has served on the trial of
one, may still be competent to serve on the trial of the other.®
Still such a case should be submitted to triers, on the ques-
tion of the juror’s indifference.?

Il. The Rules which govern when the Defendants are Tried
Jointly.
§ 966. The principal points to be considered are, —

v. Alexander, 2 Mill, 171 ; Pennsylva- 5 Commonwealth v. Manson, 2 Ashm.
nia v. Leach, Addison, 352. And see 31.

The State v. Carr, Coxe, 1. 6 Hawkins »v. The State, 13 Ga. 322,
1 Rex v. Sherman, Cas.temp. Hardw. 7 Rex v. Scott, 3 Bur. 1262, 1 W.
303. BI. 350. And see Turpin v. The
2 Reg. v. George, Car. & M. 111. State, 4 Blackf. 72 ; The State v. Alli-

8 The State v. Buchanan, 5 Har.&J. son, 3 Yerg. 428; Rex v. Sudbury, 12
500, And see Rex v. Kinnersley, 1 Mod. 262; The State v. Bailey, 3

Stra. 193. Blackf. 209.
4 Reg. v. Kenrick, 5 Q. B. 49, Dav. 8 High Treason case, J. Kel. 7, 9.
& M. 208. ® United States v. Wilson, Bald. 78.

VOL. IL. 87 [673]
§ 969 : PRACTICE. [BOOK VL

First. Challenges to the Jurors. Where the challenge is
for cause, it is plain enough that any disqualification of the
juror to serve as against one of the prisoners should require
him to be rejected as to both; since, in the nature of thi¢
service, he could not sit for the trial of one, without sitting
also for the trial of the other. This point needs no illustra-
tion.

§ 967. But it follows also from the same view, that, if one
of the prisoners challenges: the juror peremptorily, and the
other does not challenge him, he is equally to be removed
from the panel. And, as the right of peremptory challenge
pertains to the prisoner personally, and cannot even be ex-
ercised by counsel,! it follows that a challenge by one pris-
oner is not a challenge by the other. Therefore it has from
the earliest times been held, both in England and the United
States, that, where the right of peremptory challenge exists,
each of the several defendants may challeyge his full number,
while at the same time he has the benefit of the challenges
made by his co-defendants.”

§ 968. To remedy this difficulty, which, if it were not ob-
viated, would in some cases put it in the power of several
defendants so to combine as, by peremptory challenges, to ex-
haust the panel and the ¢ales and prevent a trial, the follow-
ing methods were devised: One, mentioned by Lord Hale, is,
that “‘ they anciently used to sever the prisoners, and so put
them to challenge apart, whereby they may possibly hit upon
the same persons.” @

§ 969. But the method which seems always in later times
to have been pursued, was, either to try the. prisoners sepa-
rately, or else to obtain their consent to join in their peremp-
tory challenges.* Thus, when three persons were jointly in-

, 1 Ante, § 804. Thymolby’s case, 2 Dy. 152; 2 Hawk.
2 See the places referred to in the P. C. c. 41,49; The State v. Mona-

notes to the next two sections; also quas, T. U.P. Charl. 16.

Bixbe v. The State, 6 Ohio, 86; Bris- 8 2 Hale P. C. 263.

ter v. The State, 26 Ala.107; Matonv. = * Salisbury’s case, Plow. 100; 1 Chit.

People, 15 Ill. 536; Hawkins ». The Crim. Law, 535. See People v. How-

State, 9 Ala. 137, 140. See likewise, ell, 4 Johns. 296.

Anonymous, Sir F. Moore, 13, pl. 48;

[674]
CHAP. Lv.] JOINT AND SEPARATE TRIALS. § 971

dicted for high treason, Holt, C. J. “ told them,” says the re-
port, “ that each of them had liberty to challenge thirty-five
of those who were returned upon the panel to try them, with-
out showing any cause; but that, if they intended to take
this liberty, then they must be tried separately and singly, as
not joining in the challenges. But, if they intended to join
in the challenges, then they could challenge but thirty-five in
the whole, and might be tried jointly upon the same indict-
ment. Accordingly they all three joined in their challenges,
and were tried together and found guilty.”1 And, in a case
of a different sort, “ before the jury was called, the judges
agreed between themselves, that, if the prisoners should not
think fit to challenge at all, they might be tried together ;
but, if they should insist on their challenges, they must be
tried separately ; because they cannot join in their challenges,
the number of their peremptory challenges being differently
limited.” Yet, when this case came to trial, a sort of com-
promise was made between the prisoners and the court,
whereby they were tried together, and some challenges were
allowed.?

§ 970. Hawkins says: “It seems agreed, that, where sev-
eral persons are arraigned upon the same indictment, and
severally plead not guilty, it is in the election of the prose-
cutor, &c., either to take out joint venires against them all,
or several against each of them.” ? Where the venires are
several, the prisoners are to be separately tried.*

§ 971. In some of our States, this matter is regulated by
statutes. Thus, in California it is provided, that, “where
several defendants are tried together, they are not allowed to
sever in their challenges, but must join therein” ; and the
court has held, that, if one indicted jointly with another for a
capital offence elects to have a joint trial, he cannot challenge
a juror either peremptorily or for cause, if his co-defendant
refuses to join in the challenge.®

1 Charnock’s case, 8 Salk. 81. * High-Treason case, J. Kel. 7, 9.
2 Swan’s case, Foster, 104, 106, See McWhirt’s case, 3 Grat. 594.

107. 5 People v. McCalla, 8 Cal. 301.
3 2 Hawk. P. C. ¢. 41, § 8. For cases in other States, relating to

[675]
§ 974 . PRACTICE. [BOOK VI.

§ 972. Secondly. The Evidence. The question of the
right of the defendants to be witnesses for and against one
another has already been considered! A new trial will not
be granted for the purpose of enabling the applicant to use
the testimony of one who was tried jointly with him, and ae-
quitted.?

§ 973. “It is,” said Merrick, J., “ one of the peculiarities
of the trial of an indictment against several persons, who.are
jointly charged with the commission of one and the same
crime, that each is entitled to pursue and maintain for .him-
self his own peculiar line of defence. This may sometimes
require the introduction of. evidence, on the part of one or
more of the defendants, to which another may be opposed,
and to which, if tried alone, he might successfully interpose
an objection. But it is the duty of the court to see, that, by
whomsoever it is introduced, it is properly applied ; that
those-who are entitled to avail themselvés of if shall enjoy
the advantages to be derived from it; and that all others,
against whom it could not legally be brought to bear, shall
be scrupulously and completely screened from its “effect.”
Therefore it was held not to be ground of exception, that one
of the defendants drew out from one of the government’s
witnesses, on cross-examination, testimony which was benefi-
cial to himself, but injurious to his co-defendant.2 But, in
such a case, the court should tell the jury that the evidence
must be confined, in its effect upon their minds, to the case
of the particular defendant for or against whom it was admit-
ted; though, should this caution not be requested and there-
fore not given, its omission may not be ground of error.*

§ 974. Thirdfy. The Verdict and Sentence. We have
already seen, that, in these cases, the punishment is, as a
general rule, to be several ; that is, each defendant is to re-
ceive sentence for the full penalty prescribed by the law, the

this matter, see People v. Thayer, 1 Par- 2 The State v. Bean, 36 N. H. 122.

ker C. C. 595; The State v. Phillips, 8 Commonwealth v. Robinson, 1

24 Misso. 475 ; Mahan » The State, 10 Gray, 555, 560, 561.

Ohio, 232. * The State v. Phillips, 24 Misso.
1 Ante, § 961, 962. 475.

[676]
CHAP. Lv.] JOINT AND SEPARATE TRIALS. § 975

same as though he had done the act, or been indicted, alone.!
Yet this doctrine does not apply, in its full extent, to the
costs. In our States generally, the statutes regulate this
matter to such an extent as to prevent any considerable num-
ber of questions arising upon it. Still, in Virginia, where
four persons were jointly indicted for an assault, and they
pleaded severally, and a verdict of guilty was rendered against
them, and separate fines were imposed, it was held, that an
attorney’s fee was not to be taxed against each, but only one
fee against all.2 In Illinois, Walker, J. made the following
observations: ‘‘ Where several persons are jointly indicted
and convicted, they should be sentenced severally, and the
imposition of a joint fine is erroneous.’ It would therefore
seem to follow, that, as the judgment for costs is an incident
following the judgment in the cause, it would be erroneous
to render a joint judgment against all the defendants indict-
ed, unless the trial resulted in a conviction that was joint.
The defendants, when convicted, are severally liable for all
the costs made by the People in procuring their several con-
victions ; but not for the costs of each other, or for separate
costs made by the People against their co-defendants. The
judgment for costs, in this case, was against the defendant
[who was indicted and tried jointly with other persons] for
all the costs of this proceeding. A proper construction of
this judgment only authorizes the clerk, we think, to tax the
People’s costs made in her conviction, and not any separate
costs made by the People in procuring the conviction of her
co-defendants.” + It was laid down in Arkansas, that, where
the defendants have been tried jointly, the judgment may be
separate for the fines, and joint for the costs.®

§ 975. If there is a verdict brought in against one of two
defendants, and the jury cannot agree .as ‘to the other, the
court may receive it.as to the one. And the rule is general,

1 Crim. Law, I. § 732-736. . And see Boyken v. The State, 3 Yerg.
2 Commonwealth ov. Sprinkles, 4 426; Searight v Commonwealth, 13 S.

Leigh, 650. & R301.
3 Referring to The State v. Gay, 10 5 Calico v. The State, 4 Pike, 430.
Misso. 440, 8 Rex v. Cooke, 7 D. & R. 673, 5 B.

4 Moody v. People, 20 Ill. 315, 319. & C. 538; Rex v. Thomas, Cas. temp.
57 * [677]
§ 976 PRACTICE.

[BOOK VI

that there may be a verdict and judgment, or either, against
any one of several defendants in advance of the rest.1 In
like manner, one may be acquitted, while the others are con-
victed, or while the charge remains open as to them.2? But
if the offence and the indictment are of such a nature that
the acquittal of one shows the others to be necessarily inno-
cent, or innocent of the particular crime as alleged, the ac-
quittal of such a one is fatal to the proceeding as against thre
others.

§ 976. One would suppose, that, as a general rule, subject
only to such exceptions as are suggested by the last period,
if the indictment embraces, though in but a single count, of-
fences which are included within one another, the defendants
may be convicted of different offences; or, in other words,
one may be convicted of the whole charge, another of a part
of it, and another of another part. Such is evidently the de-
duction of legal reason, and this result is not altogether un-
sustained by authority. Thus, in Mississippi, it has been held
to be no ground for arresting judgment, that three defend-
ants, jointly indicted and tried for murder, were by the jury

found guilty of different offences.‘

Hardw. 278 ; Commonwealth v. Wood,
12 Mass. 313; The State v. Parham, 5
Jones, N. C.416. And see The State
v. Martin, 2 Ire. 101; Reg. v. Ashmall,
9 Car. & P. 236.

1 Hall v. The State, 8 Ind. 439.

2 Rex v. Taggart, 1 Car. & P. 201;

The State v. McClintock, 1 Greene,

Towa, 392,

8 The State v. Mainor, 6 Ire. 840
(as to which case see The State ». Par-
ham, supra); The State o. Bailey, 3
Blackf. 209.

4 Mask v. The State, 32 Missis. 405.
On an indictment for riot, and a riotous
assault and battery, by four persons,
one of them may be convicted of the
assault and battery, and the others ac-
quitted of the whole. Shouse v. Com-
monwealth, 5 Barr, 83. Quite consist-
ently with this doctrine, where two were
indicted for grand larceny, and the

[678]

proof against both was the same, and
the jury found one guilty of grand and
the other of petit larceny, a new trial
was granted. The State v. Larumbo,
Harper, 183. In the English books,
there is, at least, some confusion on this
subject. The following is extracted from
Archb. Crim. Pl. & Ev. 10th Lond.
ed. 58: “ Upon an indictment against
two persons, charging them with a joint
and single offence, as stealing in the
dwelling-house, both or either may be
found guilty, but they cannot be found
guilty of separate parts of the charge ;
and, if they be found guilty separately,
judgment cannot be passed upon one,
unless a pardon be obtained, or « nolle
prosequi be entered, as to the other. Rex
v, Hempstead, Russ. & Ry. 344. So, if
two be charged jointly with receiving
stolen goods, a joint act of receiving
must be proved: proof that one re-
CHAP. LV. ]

JOINT AND SEPARATE TRIALS. § 977

§ 977. Fourthly. Motions for New Trials, and the like. It
was held in Alabama, that, where several persons are jointly
convicted of a conspiracy, the court will entertain a motion
in arrest of judgment at the instance of any one of them.
The English practice, it was deemed, might perhaps be the
other way; but, said Collier, C. J., “ We cannot conceive
how any one found guilty of offending against the criminal
laws can be denied the right of objecting to the legality of his
conviction.” + If, in England, all of several defendants in-
dicted for a conspiracy are found guilty, and one of them
shows himself entitled to a new trial on grounds not affecting
the others, the new trial will nevertheless be granted as to

ceived in the absence of the other, and
afterwards delivered to him, will not
suffice. Rex v. Messingham, 1 Moody,
257. It seems that several receivers
may be charged in the same indictment
with separate and distinct acts of re-
ceiving ; Reg. v. Pulham, 9 C. & P. 280;
at least it is too late after verdict to ob-
ject that they should have been indicted
separately. Reg. v. Hayes, 2 Moody &
R. 155. Where several persons are in-
dicted for burglary and larceny, one may
be found guilty of burglary and larceny,
and the others of the larceny only. Rex
v. Butterworth, Russ. & Ry. 520. See
Rex v Turner, 1 Sid. 171.” In 1 Stark.
Crim. Pl. 2d ed. 37, 38, the matter is
stated as follows : “It should seem, that,
in some instances, defendants jointly in-
dicted may be convicted of offences dif-
fering in degree; for, as two may be
indicted jointly for the death of a third,
though it be petit treason in the first,
and but murder or manslaughter in the
second, — Foster, 106, 329 ; Com. Dig.
Ind. F, —as alleged in the indictment,
and as in a joint indictment it may be
laid as murder in one and but man-
slaughter in the other, there seems to be
no reason why the jury, where two are
jointly charged with murder, should not
find one guilty of murder and the other
of manslaughter, should the evidence

warrant such a conclusion. It was
holden, indeed, in Turner’s case, 1 Sid.
171, where several were jointly indicted
for a burglary, that the jury could not
find one guilty of burglary and the
other of larceny only; but there the
very nature of the case precluded such
a finding, for the evidence was the same
as to all. But upon a joint indictment
for petit treason, if it turned out that
one defendant was servant to the de-
ceased, and the other a stranger ; or if,
upon a joint indictment for murder, it
appeared that he who abetted, acted of
malice prepense, but that he who struck
did not maliciously strike, the finding
the parties guilty of offences differing
in degree would not be inconsistent.
*And in the case of burglary, if it ap-
peared in evidence that one of the pris-
oners who had assisted in the removal
of the goods had been a stranger to the
breaking in, and had taken no part in
the transaction until after the breaking
had been accomplished, there seems to
be no satisfactory reason why the jury
should not find according to the fact,
and why separate judgment should not
be pronounced just as if the prisoners
had been separately tried and con-
victed.”’
1 The State v. Covington, 4 Ala.
603, 605.

[679]
§ 980 PRACTICE. [BOOK VI.

all. If, of several persons indicted jointly for a criminal of-
fence, some are convicted and others acquitted, there may be
a new trial as to those who are convicted, without disturbing
the verdict as to those who are acquitted.”

§ 978. Where two are jointly convicted, they may Jot in
a writ of error to reverse the judgment.®

III. The Trial when the Charge is Several.

§.979. What was said under the last sub-title relates to the
indictment where the defendants are charged jointly. If the
charge against them is several, as explained in earlier sections
of this volume,‘ the matter may not stand precisely as it does
in the ordinary case of a joint charge. And probably the
court would, in such circumstances, order in most instances
separate trials, even if the indictment were not quashed. But
questions of this sort very seldom arise, and the books do not
contain much relating to them.

IV. The Trial where there are separate Indictments for like
Offences.

§ 980. There is not necessarily any legal objection to try-
ing a defendant on two or more separate indictments at the
same time. And there are circumstances in which this will
be done. Indeed in North Carolina it was laid down, that
the finding of a new bill of indictment for the same felony,
varying the terms in which the offence is charged, is simply
adding a new count, and the ‘whole constitutes but one pro-
ceeding. Therefore an order for the removal of the cause
applies to the several bills which have been found against the
defendant.’ And it was held in Pennsylvania, that two in-
dictments for different acts of conspiracy, found at different
sessions against the same defendants, may be tried together

1 Reg. v. Gompertz, 9 Q. B. 824. See 8 Sumner v. Commonwealth, 3 Cush.

Rex v. Teal, 11 Hast, 307; Rex » 521.
Askew, 3 M.& 8.9; Rex v. Cochrane, 4 Ante, § 224~297; and see Vol. II.

8M. &S. 10, note. § 88-90.
2 Rex v. Mawhbey, 6 T. R. 619, 638 ; 5 The State v. Johnson, 5 Jones, N
Reg. v. Gompertz, supra. C, 221.

[680]
CHAP. LV.]

JOINT AND SEPARATE TRIALS. § 982

by one jury, especially if the prisoner is allowed his challenges
on each indictment.!

§ 981. But where, in Missouri, after the evidence in a
case of misdemeanor had been given in, yet before the jury
were charged, the judge called up another similar case against
another defendant, and submitted the two to the one jury to-
gether; this, though separate verdicts were rendered, was held
to be an erroneous proceeding. “It is,” said Ryland, J.,
“ the right of the accused to have his case tried by a jury free
from any improper bias. This trial must be in its nature a
single matter; and the court has no right to impose on the
defendant and his counsel the necessity of waiting and listen-
ing to a different prosecution for a different offence, and has
no right to draw the attention of the jury to a new and differ-
ent prosecution, before the first one submitted to them is de-
termined.” ?

’ § 982. It was laid down in a case tried before one of the
English judges, that, if there are cross indictments for assault
to be tried as traverses at the assizes, and the same transac-

1 Withers 0. Commonwealth, 5 8. &
R. 59. Gibson, J. said in delivering the
opinion of the court in this case: “I
have found no case exactly like the pres-
ent; but there is a strong analogy be-
tween it and those in which several
counts for separate and distinct offences
are included in the same indictment ;
for these are necessarily tried together,
and in cases of misdemeanor it has
never been held that separate offences
could not be joined. As to felonies, a
different rule prevails, and the court
goes so far as to quash where distinct
offences are charged ; or, if no motion
for that purpose be made in time, to com-
pel the prosecutor to select a particular
offence, to which alone the prisoner is
held to answer. But in no case has
such joinder been considered a cause of
demurrer, or ground for a motion in ar-
rest of judgment, but merely as a sub-
ject for the discretion of the court, and
therefore not a matter in which error
could be assigned in a superior court.

The only solid reason for the distinction .
in regard to felonies is, that the prison-
er, having a right to challenge peremp-
torily, may choose to have a particular
juror to try one of the offences, and yet
be altogether averse to him with regard
to the other; and thus, if the court did
not interfere, he would in some measure
lose the benefit of his right. With us,
this reason applies also to misdemean-
ors, as wu defendant may peremptorily
challenge four jurors; but whether a
court would therefore quash an indict-
ment combining two or more misde-
meanors would, I apprehend, depend on
a sound exercise of discretion, having
regard to the particular circumstances of
each case ; the court would take care
that the right of challenge should be
fully preserved, by allowing the defend-
ant peremptory challenges for each of-
fence, or by quashing the indictment, as
might seem most expedient.” p. 60, 61.
2 The State v. Devlin, 25 Misso. 174,

176.
[681]
§ 983 PRACTICE. [BOOK VI.

tion is the subject of both indictments, the court will direct
the jury to be sworn in both traverses, and the counsel for
the prosecution of the one which is entered first will open his
case and call his witnesses; the counsel on the other side will
then open his case and call his witnesses ; and there will be
no reply on either side. But the course of any trial is not
always the same in England and in our own States.

§ 983. According to an old case, if there are pending two
indictments for perjury against the same defendant, and he
takes the records down for trial, he may bring on the one
which he pleases first; though the attorney-general may en+
ter a nol. pros., and thus compel him to bring on the other.
And Holt, C. J. said: “ It is true the queen has that election
where she brings on her causes herself; but here the defend-
ant brings it on, and he is to do the first act, and therefore
has his election.” ?

1 Reg. v. Wanklyn, 8 Car. & P. 290. 2 Reg. v. Carter, 6 Mod. 168,
[682]
CHAP. LVI.] THE COURT. § 986

CHAPTER LVI.
THE COURT.

§ 984. The question of jurisdiction, considered irrespective
of the particular tribunal, has been fully discussed in the
preceding sections of the present volume and in the work on
the Criminal Law. And if these volumes were intended
merely for local use in a particular State, it would be incum-
bent on us here to direct attention to the particular statutes
and constitutional provisions from which the several courts
derive their powers. But as the scope of the volumes em-
braces only questions which have a practical importance out-
side the limits of any one State, and as each State has its
own peculiar judiciary system, it becomes necessary for us to
omit all detail relating to this matter.

§ 985. When there is, in two different tribunals, a concur- -
rent jurisdiction over an offence, the court in which proceed-
ings are first instituted will retain the jurisdiction to the end,
and the other court is not authorized to interfere.1

§ 986. If the court is not entitled to take cognizance of
the offence, yet proceeds with the cause, and conducts it to
judgment, and sentences the prisoner to imprisonment, the
sentence is a nullity, and he may be discharged on a writ of
habeas corpus? And if the court is not authorized by law to
take cognizance of the offence, it cannot become authorized
by any consent of the defendant.? In Virginia it was held,
that an indictment found by a county court is void if less than
four justices are present. And Lee, J. added: “ From its
nature, therefore, it is an objection which is not waived by

1 Ex parte Robinson, 6 McLean, 355; States, 9 How. U. S. 571; Simpson ».
Burdett v. The State, 9 Texas, 43; United States, 9 How. U. S. 578.
Clepper v. The State, 4 Texas, 242. 8 Mills ». Commonwealth, 1 Harris,

2 Cropper v. Commonwealth, 2 Rob. Pa. 627; Ballance o. Forsyth, 21 How.
Va, 842. See also, Benner v. Porter, U. S. 389.

9 How. U. S. 235; Forsyth v. United’
[683]
§ 987 PRACTICE. [BOOK VI.

any pleading, and which is not cured by anything that after-
wards transpired.” Consequently the defendant. was permit-
ted to take the objection, after trial, before a court legally
constituted.

§ 987. In Iowa, it was in a criminal case moved in arrest
of judgment, that the court to which the indictment was re-
turned was not held at the place appointed by law. It ap-
peared, from the record, that the court-house was in an unfit
condition, in consequence of which the court adjourned to
another place ; and this, it was adjudged, was sufficient to
justify the removal, within those provisions of the Code on
which the question depends.?, But here we are met by the
terms of a mere local statute of one State ; it is best, there-
fore, that this chapter should now close.

1 Jackson v. Commonwealth, 13 Grat. 2 The State v. Shelledy, 8 Iowa, 477,
795, 801. See People v. White, 22 509, 510.
Wend. 167.
[684]
CHAP. LVI] - »«‘ THE RESPECTIVE COUNSEL. § 990

CHAPTER LVII.

THE COUNSEL FOR THE PROSECUTION AND FOR THE DEFENCE,

Secr. 988. Introduction.

989-1000. The Duties of a Prosecuting Officer.
1001-1005. The Duties of Counsel for the Defence.
1006-1018. Appointment and Compensation of Counsel.

§ 988. Ir will not be well to discuss in this chapter all the
questions which might seem to belong to the general subject
of the chapter. We shall consider, I. The Duties of a Prose-
cuting Officer ; II. The Duties of the Counsel for the Defence ;
III. Some points respecting the Appointment and Compensa-
tion of the respective Counsel.

I. The Duties of a Prosecuting Officer.

§ 989. Everywhere in the United States criminal prosecu-
tions before the higher tribunals are under the control of a
public prosecuting officer, who is of the legal profession, and
personally conducts the cause on the trial and in every stage
of it before the court ; and, with perhaps some unimportant
exceptions, before the grand jury also. This officer is the
representative of the public. In most of the States, he has ,
the sole power of discontinuing, by his nol. pros., any criminal

.cause;? and, in some of the States, it appears, no indictment
can even be originally found without his concurrence,? —a
proposition, however, which is not so generally true in our
law as the other.

§ 990. It becomes, then, the duty of the prosecuting offi-
cers, in most of our States, to determine, not only whether
criminal parties can be convicted if prosecuted, but likewise
whether or not the public interests require the prosecution to

1 Crim. Law, I. § 850, 856, 858,862; 7 Ante, § 143, 144.
ante, § 508 and note.

VOL. I. 58 [685]
§ 993 PRACTICE. [BOOK VI.

be carried on. Because, as was observed in the work on the
Criminal Law, “on the one hand, no man is to be punished
unless he deserves punishment as a matter of pure retributive
justice, aside from all extraneous considerations ; while, on
the other hand, though a penalty be merited, it will not be
inflicted by tht governmental powers, which do not assume
the full corrective functions of the Deity, unless a public
good may thereby be done.” ! Yet these broad propositions
should be considered in connection with some others, by
which they are limited in their practical operation.

§ 991. In the first place, the pardoning power, which in
most of our States can be exercised only after conviction,
though under the government of the United States it may be
exercised before as well as after? is not lodged in the prose-
cuting officer, but in the executive. The mere fact, there-
fore, that the prosecuting officer thinks the executive ought
to pardon the prisoner, will not justify him in declining to
carry on the prosecution.

§ 992. In the next place, the legislative power is vested,
not in the prosecuting officer, but in a special body called the
legislature. The legislature has the power to repeal the old
laws, as well as to enact new ones. If, then, the prosecuting
officer deems a law, whether new or old, statutory or unwrit-
ten, to be unwise, or even mischievous, or to be in violation
of the original rules of right, still he is not for this reason to
decline carrying on the prosecution. The consideration thus
presented is for the legislature, not for him.

§ 998. Yet there are circumstances in which the question,
whether or not a prosecution shall be carried on against a
particular person, addresses itself to the discretion of the pros-
ecuting officer, even though there are no legal doubts concern-
ing his technical guilt. Suppose, for instance, a technical
crime has been committed, where it is evident that there is |
no violation of the real spirit and intent of the law, yet by

1 Crim. Law, I. § 871. The pros- ‘agreement not to prosecute. The State
ecuting officer simply declines, in prop- 1. Lopez, 19 Misso, 254. And see Ben-
er cases, to institute or to carry on the nett ». The State, 2 Yerg. 472.
prosecution. He can make no valid 2 Crim. Law, I. § 751, 752.

[686]
CHAP. LVII.] THE RESPECTIVE COUNSEL. § 996

some slip in its terms a man is caught in a net which plainly
was never spread for him, tlie prosecuting officer, represent-
ing the public, should decline either to institute or to carry
on the prosecution. For if he carries it on, he not only
wrongs an individual, but he brings the law itself, and the
community which seems thus to sustain it, into disgrace. He
wrongs the public.

§ 994. Again, an offence may be of so accidental and trivial
a character that it will be his duty to pass it by unnoticed ;
as a right-minded individual, who owns a piece of real estate,
‘passes by unregarded a trivial and accidental trespass upon
it. And there are various other instances of technically
criminal acts, which the prosecuting officer should decline
bringing to the attention of the court.

§ 995. In England, the Queen prosecutes ; and the Attor-
ney-General is, in strictness of law, merely her attorney, who
represents her in the same way in which any client, ina mere
private matter, is represented by his attorney.!_ In the United
States, the prosecution is by the people, who constitute the
plaintiff, under the name of The People, The State, The
Commonwealth, or The United States. Has, then, the Presi-
dent of the United States, in respect of National matters, or
the Governor of a State, in respect of State matters, or any
legislative body, the power, with us, to control a prosecuting
officer in the exercise of his official discretion? This ques-
tion may not require the same answer in all the States, or the
same under the government of the United States as under
the government of a State. Various things of this sort have
been heretofore done or attempted, but it will not be best to
pursue the discussion here. :

§ 996. It can never be the duty of a prosecuting officer to
obtain a conviction by any trick or artifice, contrary to the
real justice and substantial merits of the case. Yet if a pris-
oner is defended by counsel, and the prosecuting attorney.
has made up his mind that the question of guilt or innocence
ought to be submitted to the jury, it can hardly be required
of him, or ordinarily be proper for him, to argue both sides.

1 Opinion of the judges in Wilkes’s case, 19 Howell St. Tr. 1075, 1128,
[687]
§ 997 PRACTICE. [BOOK VIL

The orderly course of business in the tribunals, and the ends
of justice, are, in most instances, alike promoted by leaving
it equally to the counsel of the prisoner and of the people to
present each the cause of his client in its clearest light. But
where the prisoner has no counsel, or where his counsel makes
some great slip in the management of his cause, the counsel
for the public should not press an advantage to obtain an im-
proper conviction.!_ When the public is the client, however
it may be when the client is a private individual, the estab-
lishment of.real justice should be the object sought.

§ 997. The same rule which applies to the facts, applies
also to the law. There is a Virginia case, which was taken
to the higher court, from the lower, on a point of law, in be-
half of the prisoner. No counsel appearing for him, the point
was argued in his behalf by an amicus curie. Then, says the
report, “the Attorney-General told the court, that he had
thought it his duty to consider, carefully and impartially, the
question presented by the bill of exceptions ; and he thought
it his duty also to say, that he was clearly of the opinion that
the judgment of the circuit court on that point was errone-
ous.”? And in a South Carolina case, Johnson, J. observed :
“ The Attorney-General, entertaining doubt as to the correct-
ness of these convictions, if supported by the act of ’69 alone,
has, with a candor highly creditable to him as a public officer,
signified the same to the court, thereby strengthening the ju-
dicious arguments of the counsel for the defendants in sup-

1 I have thus stated the matter as it narrated the circumstances in su@h way"

lies in my own mind, and, I believe, ac-
cording to the better judgment of most
considerate persons. *In an English
case for murder, where the prisoner was
defended by counsel, “in opening the
case,” says the report, “ Corbett, for the
prosecution, said, that he should state
to the jury the whole of what appeared
on the depositions to be the facts of the
case, as well those which made in favor
of the prisoner as those which made
against her, as he apprehended his
duty, as counsel for the prosecution, to
be, to examine the witnesses who would
detail the facts tothe jury, after having

[688],

as to make the evidence, when given,
intelligible to the jury; not consider-
ing himself as counsel for any particu-
lar side or party. He then opened the
whole of the facts,” &c. Gurney, B.,
who presided at the trial, observed :
“The learned counsel for the prosecu-
tion has most accurately conceived his
duty, which is to be assistant to the
court in the furtherance of justice, and
not to act as counsel for any particular
person or party.” Reg. v. Thursfield,
8 Car. & P. 269.

2 Word ». Commonwealth, 8 Leigh,
748, 758,
CHAP. LVIL.] THE RESPECTIVE COUNSEL. § 999

port of this objection.” 1 Still, as the decision of questions of
law is for the court, the same as the decision of questions of
fact is for the jury, the counsel for the people may often find
it consistent ‘with his duty to argue in support of that view
of the law which will sustain the prosecution, though his own
private judgmént is the other way.

§ 998. A prosecuting officer, while conducting the cause,
may, with the concurrence of the court, be assisted by other
legal persons. Thus, it was laid down in one of the circuits
of the United States, that, in a prosecution in the Circuit
Court for treason, in the alleged commission of which a citi-
zen of a State without the circuit had been assaulted and
killed, the court approves of the presence of special counsel
from the latter State ; also, of counsel coming, by order of the.
governor, as counsel employed by the friends of the deceased
person.2 The precise limits of this doctrine are perhaps not
just the same in all-the States ;- for the office itself of prose-
cuting attorney is statutory ;4 and the question of the help
which this officer is to have, may depend somewhat upen
statutes, and upon local usagmw

§ 999. In a Massachusetts case it was laid down, that the
counsel who assists the prosecuting officer is not to exercise
any control over the cause ; and we may well accept this as
the general doctrine. In regard to the whole matter of ap-
pointing assistant counsel, Dewey, J. observed: “ When this
takes place, it must be at the request of the district-attorney,
and under some stringent reason arising in the particular
case..... There is nothing in the present case to show, that
the counsel thus associated with the district-attorney received
any pecuniary compensation from any private individual for
the services he rendered ; and we are to presume, this being
a motion addressed in some degree to the sound discretion of
the presiding judge, that proper reasons existed for granting
the request of the district-attorney that Mr. Farrar should

1 The State v. Sanford, 1 Nott & 3 United States v. Hanway, 2 Wal-
McC. 512. lace, Jr. 139.

2 Hopper v. Commonwealth, 6 Grat. People v. Corning, 2 Comst. 9,
684; Shelton v. The State, 1 Stew. & 18.

P. 208. 58 * ; [689]
§ 1001 PRACTICE. [BOOK VI.

be associated with him in the trial of this case. While we
deem it our duty to say, that such additional counsel is not,
under ordinary circumstances, to be permitted, yet, when
sanctioned by the court, under the limitations suggested, it
will not furnish any sufficient ground for setting aside a ver-
dict.”1 Likewise, in Massachusetts, only two counsel will be
allowed to conduct the cause, in behalf of the prosecution,
before the jury.? ;

§ 1000. The counsel who thus assists, may, it has been
held in Tennessee ® and in Georgia,* be permitted, at the re-
quest of the attorney for the State, to make the closing argu-
ment. ‘+The regulation. of that matter,” said Reese, J.,
“properly belonged to the circuit court. The discretion
which the judge of that court had, we have no reason to sup-
pose was indiscreetly exercised, and its exercise in the mode
mentioned was, we take no ground of error before us.” ®

Il. The Duties of the Counsel for the Defence.

‘5 1001. Of the numerous points which this sub-title* sug-
gests, a few only can be consitlered. And,

First. It is the natural right, recognized also by our law,
of every person accused of crime to be defended by counsel.
Therefore no right-minded person, who is engaged in legal
* practice, will refuse to be employed in a defence, on the
ground that he deems the defendant guilty, or that the public

1 Commonwealth v. Williams, 2 Cush.
582. Andsee Commonwealth v. Knapp,
10 Pick. 477 ; Commonwealth v. Knapp,
9 Pick. 496 ; Commonwealth v. King, 8
Gray, 501. According to a Kentucky
case, the fact that a prosecution was car-
ried on without the aid of any prose-
cuting attorney, or by one who, with the
assent of the court, prosecuted without
competent authority, is not material af-
ter verdict ; the party convicted can
take no advantage of it. Tesh », Com-
monwealth, 4 Dana, 522.

2 Commonwealth v. Knapp, supra.

8 Jarnagin v. The State, 10 Yerg.
529,

[690]

* Griffin v. The State, 15 Ga. 476.

5 Jarnagin v. The State, supra, p.
530. See further as to the law in Ten-
nessee, Ex parte Gillespie, 8 Yerg, 325;
Douglass v. The State, 6 Yerg. 525.
As to Ohio, see Martin v. The State,
16 Ohio, 364. As to Mississippi, The
State v. Mayes, 28 Missis. 706. Ac-
cording to an earlier Mississippi case,
the proceedings in bringing an indict-
ment before the court must be conduct-
ed by the prosecuting attorney in per-
son, but the actual trial before the court
and jury may be conducted by other
counsel. Byrd v. The State, 1 How.
Missis. 247, |
CHAP. LVI] THE RESPECTIVE COUNSEL. § 1003.

has pronounced against him, or that excellent people think
he should not be defended, or that the crime is a peculiarly
heinous or odious one, or that the peculiar defence required.
is of an unpopular kind, or that it will injure his professional
standing or private reputation to do his duty to the particular
client. There is no higher obligation resting on man than
that which sometimes compels a lawyer to use his legal pow-
ers for the defence of one whose course of life he loaths, and
whom he deems guilty of the very crime of which he seeks to
obtain an acquittal. The right of every person to go unpun-
ished until, not only the crime has been committed, but he
has been formally convicted of it, after making every defence
which any other person is entitled to make, is one of the main
pillars on which rest our liberty, and our security in the pur-
suit of happiness; therefore, if a lawyer,whose business lies in
the department of the defence of criminals, refuses to defend
one because in fact this one is guilty, he does what he can to
take away this principal pillar of our liberty and security.

§ 1002. Still there are cases in which a lawyer ought to
decline being employed in a defence. Suppose, for instance,
persons combine for the commission of crime, and it is a part
of their plan to obstruct the courts with numerous and frivo-
lous defences, whilé they or a part of them continue their
course of law-breaking ; or, suppose it is the business of the
single defendant to violate the law in the particular concern-
ing which he is indicted, and he seeks an acquittal avowedly
that he may return to his life of law-breaking ; in such, and
similar cases, the lawyer who makes the defence becomes in
a sense a party in the crime; therefore, under circumstances
like these, a right-minded and considerate lawyer will decline
rendering any assistance in the still-continuing course of con-
certed or habitual crime. The difference lies between a sort
of legal or moral participation in the crime which is being
defended, and in a certain sense continued at the same time,
and the simple defence of what is past and ended.

§ 1008. Secondly. No lawyer ought to undertake to be a
witness for his client, except when he testifies under oath,

1 Andsee Crim. Law, I. § 469, note, par. 12.
[691]
§ 1005 PRACTICE. [BOOK VI.

and subjects himself to cross-examination, and -speaks of what
he personally knows. Therefore the practice, which seems
to be tolerated in many courts, of counsel for defendants pro-
testing in their addresses to the jury that they believe their
clients to be innocent, should be frowned down and put down,
and never be permitted to show itself more. Ifa prisoner is
guilty, and he communicates the facts fully to counsel, in
order to enable the latter properly to conduct the defence ;
then, if the counsel is an honest man, he cannot say he be-
_ lieves the prisoner innocent; but, if he is a dishonest man,
he will as soon say this as anything, Thus a premium is
paid for professional lying. Again, if the counsel is a man
of high reputation, a rogue will impose upon him by a false
story, to make him an “ innocent agent” in communicating
a falsehood to the jury. Lastly, a decent regard for the or-
derly administration of justice requires, that only legal evi-
dence be produced to the jury; and the unsworn statement
of the prisoner’s counsel, that he believes the prisoner inno-
cent, is not legal evidence. It is the author’s cherished hope,
that he may live to see the day wlien no judge, sitting where
the common law prevails, will ever, in any circumstances,
permit such a violation of fundamental law, of true decorum,
and of high policy, to take place in his presence, as is involved _
in the practice of which we are now speaking.

§ 1004. Thirdly. At common law, there is no legal objec-
tion to counsel taking the stand and testifying as a witness ;
though practically it would not, in ordinary cases, be well for
the same person to serve in this double capacity. In Geor-
gia it is held, that the statute of 1850, rendering attorneys
incompetent in certain cases as witnesses for their clients,
-does not prevent the attorney-general testifying for the State.!

§ 1005. Fourthly. According to a California decision, it .
is the constitutional right of the prisoner to have his case
fully argued ; and, though the court has power to limit the
argument to a reasonable time, yet, if in a capital case it ap-
pears from the uncontradicted affidavits of counsel that not
time enough was allowed them for argument, a new trial

8 Hines v. The State, 26 Ga. 614.
[692]
CHAP. LVII.]

THE RESPECTIVE COUNSEL. § 1007

must be granted.! In Virginia it is laid down, that, on the
trial of a question of fact in a criminal case, the accused is
entitled to be heard by counsel before the jury, and the court
has no right to prevent him from being so heard, however
simple, clear, unimpeached, and conclusive the evidence, in
its opinion, may be; but the court has a superintending con-
trol over the course of the argument, to prevent the abuse of
this or any other right of counsel.?

Ill. Some Points respecting the Appointment and Compensa-
tion of the respective Counsel.

§ 1006. The appointment and grade of prosecuting officers
are variously regulated by the constitutions and statutes of the
several States and of the United States,? and they do not need
to be discussed here. But sometimes there is a vacancy in
the office, and sometimes a case comes before a court unat-
tended by such officer. Yet for emergencies of this sort the
written laws of some of the States make provision. Thus, by
the constitution of Tennessee, “in all cases where an attor-
ney for any district fails or refuses to attend and prosecute
according to law, the court shall have power to appoint an
attorney pro tempore.” Under this provision, an order of
court merely stating, that the regular attorney, having been
of counsel for the accused, was incompetent to perform his
office, does not set out a constitutional reason for the appoint-.
ment of another ; and such appointment is not valid.*

§ 1007. But aside from any such special provision of law,

1 People v. Keenan, 13 Cal. 581.

2 Word v. Commonwealth, 3 Leigh,
743. And see Commonwealth ». Por-
ter, 10 Met. 263; Lynch v. The State,
9 Ind. 541.

8 In Virginia, attorneys for the com-
monwealth in the circuit superior courts
hold their offices during the pleasure of
the respective courts, and the courts
may remove them from office, and ap-
point others to replace them, without as-
signing any reason for such removal.

Ex parte Bouldin, 6 Leigh, 639. See.

also, People ». Albany Common Pleas,
19 Wend. 27; People v. May, 3 Mich.

598 ; Collins v. The State, 8 Ind. 344;
The State v. Shufflebarger, 4 Ind. 532 ;
Barkwell v. The State, 4 Ind. 179 ; Par-
ker v. Smith, 3 Minn, 240.

* Pippin v. The State, 2 Sneed, 43.
See also, Hite v. The State, 9 Yerg. 198;
Staggs v. The State, 3 Humph. 372;
Commonwealth v. King, 8 Gray, 501.
In Louisiana, the statute which provides,
that, whenever the district attorney.shall
not attend, the judge shall have power
to appoint an attorney pro tempore to
prosecute on behalf of the State, is not
in violation of the clause of the consti-
tution by which district attorneys are to

[693]
§1008 PRACTICE. [BOOK VI.
the court is authorized to appoint one of its officers, — in
other words, an attorney or counsellor of the court, for
these are all officers of the court, — to act in behalf of the
prosecution, whenever, for any reason, no regularly constitut-
ed prosecuting officer appears.! Even where, by the consti-
tution of Mississippi, district-attorneys were made elective,
the court still held, that, in the absence of the attorney, the
court might appoint an attorney pro tempore? And if the
court appoints a member of the bar to act for the prosecution
in a particular case, he is to consider himself as counsel for
the people in all respects, and not merely as an assistant to
the judge in the examination of witnesses.’

§ 1008. We have already alluded to the rules of the an-
cient common law respecting the limited right of prisoners to
be defended by counsel.* “Chitty states the matter as fol-
lows : > It seems to be universally agreed, that, at common
law, a prisoner was not entitled to defend by counsel, upon
the general issue of not guilty, on any indfctment for treason
or felony.6 This rule may appear somewhat strict and se-
vere, as the crown has always the benefit of counsel to mar-
shal its evidence, and state the case to the jury: but it is, in
some degree, attempted to be explained by the maxim, that
the judge is to be counsel for the prisoner ;? whose duty it
is to see that all the proceedings are regular; to examine
witnesses for the defendant ; to advise him for his benefit; to

‘hear his defence with patience ; and, in general, to take care
that he is neither irregularly nor unjustly convicted. Where-

be elected by the people. The State v.
Boudreaux, 14 La. An. 88. And see
Keithler v. The State, 10 Sm. & M. 192,
224, 235.

1 Dukes v. The State, 11 Ind. 557 ;
The State v. Johnson, 12 Texas, 231 ;
Tesh v. Commonwealth, 4 Dana, 522.
Seo Collins ». The State, 8 Ind. 344 ;
Mitchell v. The State, 22 Ga. 211, 232;
The State v. Delesdenier, 7 Texas, 76,
96.

2 Keitbler v. The State, 10 Sm. & M.
192, 224, 235,

5 Reg. v. Littleton, 9 Car. & P. 671.

[694]

4 Ante, § 11-19.

5 1 Chit. Crim. Law, 407 et seq.

8 3 Inst. 29, 137; 2 Bulst. 147; Cro.
Car. 147 ; Foster, 228, 231 ; Cas. temp.
Hardw. 250, 251; 2 Hawk. P. C. ¢. 39,
§1; 4 Bl Com. 355, 356; 1 East. P.
C. 112; Dick. Sess. 193 ; Doct. & Stu.
259 — 262,

7 See 4 Bl. Com. 354 ~ 356 and note;
Doct. & Stu. 259.

8 8 Inst. 29; 2 Bulst.147; 4 Bl. Com.
355, 356; Dalt. Just. ec. 185;.Dick.
Sess. 194.
CHAP. LVI] THE RESPECTIVE COUNSEL. § 1009

as, when counsel are allowed a prisoner, it is their business
to see that he lose no advantage ; and it is then the duty of
the. judge to be equal and indifferent between the king and
the prisoner.1 In prosecutions in which counsel may be and
are allowed, the court will not be of counsel for the defend-
ant also.2. The rule by which counsel are refused to the de-
fendant, applies only to matters of fact ; for, whenever a point
of law arises proper to be debated, he will have counsel to
discuss it : ® as, whether the facts proved constitute any offence,
or the offence charged ; whether the witnesses offered are
competent ; whether the jury are sufficient ; and whether the
indictment is properly framed.* In these cases, it is said,
the prisoner must propose the point, and the court will assign
him counsel if they think it will bear discussion.5

§ 1009. “ The refusal of counsel also applies only to the
general issue, and has never been extended to any collateral
issues; for, upon these, the prisoner is entitled to their full
assistance. Thus, he may have counsel to plead a pardon,’
to assign error to reverse outlawry ;°-but the court cannot
assign the defendant counsel on an outlawry for treason till
he has pleaded to the outlawry, and then he may have coun-
sel on the collateral matter,? or to plead a former acquittal ;
even though by rudeness and contumacy he should forfeit all
claim to a mere discretionary indulgence.” And it is said,
that, in such cases, any one may be counsel for him without
assignment,!! though it is certainly better that both the coun-
sel and solicitor should be assigned by the court on the nomi-
nation of the defendant. However, it is certain that any
one may, as amicus curi@, inform the court of any error in

1 4 Harg. St. Tr. 705. 7 3 Inst. 29, 187; 2 Hawk. P.C.c.

2 Thid. 39, § 5.

8 Cro. Car.’ 147; 3 Inst. 29,137; 2 8 Foster, 46; 2 Stra. 825, 826; 2

Hale P. C. 236; Foster, 131, 182; 2 Hawk.P.C.c. 39, § 5 ; 1 Bur. 188; Cro.
Hawk. P. C. c. 39,§ 4; 4 Bl Com.356. Car, 365.

4 9 Hawk. P. C.. 39, § 4. ® 1 Bur, 638.
5 9 Hawk. P. C.'¢.89,§6; Cro.C. 2 Hale P. C. 241.

C. 147. 11 T, Jones, 180; 2 Hawk. P. C. c.
8 Foster, 42, 46,56, 232; 3 Inst,137; 39, § 5. .

Cro. Car. 365; 1 Bur. 638; 2 Stra, 825, % 2 Hawk. P. C. ¢. 39, § 7.
826; 2 Hale P.C. 241; 2 Hawk. P.C.

; . . 356, note. 7
c. 39,§ 5; 4Bl. Com. [695]
§ 1012 PRACTICE. [BOOK VI.

the proceedings, of which they are bound to take cogni-
zance.}

§ 1010. “Even upon the general issue, the strictest rule
of law against defending by counsel has been considerably
modified by modern practice. For, at the present day, a pris-
oner is allowed counsel to instruct him what questions to ask,
or even to ask questions for him with respect to matters of
fact, and to cross examine the witnesses for the crown, and
to examine those produced om the part of the defendant,
though not to address the jury.2, And in case of mere misde-
meanors, or any offences less than felony, it does not appear
that the right of the party indicted to a full defence by advo-
cates, has ever been disputed. But the defendant, on the
trial of a misdemeanor, cannot have the assistance of counsel
to examine the witnesses, and reserve to himself the right of
addressing the jury; though, indeed, even in such case,
counsel may argue for him a point of law, or suggest what
questions to put to the witness.” 4

§ 1011. These rules of the common law have, in England,
been modified by subsequent legislation and judicial decision,
until, at the present time, there is believed to be no case in
which the laws of our mother country compel prisoners to
defend themselves, and deny them the assistance of counsel.
In our own entire country, it would probably be difficult to
find any trace of such barbarism on the pages where our ju-
risprudence is written.

§ 1012. Still, even at the present time in England, “ the
Attorney and Solicitor General, a Queen’s Sergeant, or a
Queen’s Counsel cannot appear in a case against the crown,
even if the crown be a nominal party only, without a license
under her Majesty’s sign manual.” But “sergeants and
counsel, who have patents of precedency, may appear in cases:
against the crown without any such license.”5 And, where ,

13 Inst. 29,137 ; 2 Hawk. P.c.39, * Ryan & MoodyN. P. 166; 8 Camp.

§7; Dalt. Just. c. 165, 98.
? 4 Bl. Com. 354-356; Dick. Sess. © Note to Reg. v. Jones, 9 Car. & P.
194. 401. In Ireland, the license is obtained
® Cro, Car. 482, 483; 4 Bl. Com. 855, from the Lord Lieutenant, 2 Hayes Dig.
note. 871.

[696]
CHAP. LVII.] THE RESPECTIVE COUNSEL. § 1015

the license is required, it appears to be granted pretty much
as of course.}

§ 1018. Undoubtedly, in this country, a prosecuting officer
cannot be retained by a defendant to conduct his defence in
a cause within the officer’s jurisdiction. But, outside the
limits of the territory over which he has charge, or in any
other way outside the limits of his jurisdiction, it seems that
he may be-employed by defendants, if the duties of his office
do not claim a monopoly of his time.? If, however, one in
office has instituted criminal proceedings, by preferring an in-
dictment against a person accused of crime, and then the
officer’s term of service expires, he cannot suffer himself to
be retained by the same defendant as counsel in the same
case; and, if he does, the court will not permit him to ap-
pear in the cause at the trial. To suffer this, would be to
violate a rule of public policy.®

§ 1014. In capital cases, according to the law in some and
perhaps most of our States, the court, in matter of form,
assigns counsel for the prisoner. Still in these cases, the pris-
oner has ordinarily no practical difficulty in getting the court
to assign him such counsel as he may choose to employ. Yet
it was held in Massachusetts, under the former laws respect-
ing professional standing, that the Supreme Judicial Court
will not assign, as counsel for a prisoner, one who has been
admitted to practice only in the Court of Common Pleas.
The judges observed, that they had no control over such a
person as an officer of the court. And they added, “ that it
was proper that a person of more legal experience should be
assigned, who might render aid to the court as well as to the
prisoner.”’ *

§ 1015. Sometimes the right of the prisoner to be defended
by counsel, and the right of counsel to be paid for making
the defence, are found to be in practical conflict, by reason of
' the prisoner’s poverty. According to the course of things in

11 Chit. Crim. Law, 411; Reg. v. * Commonwealth v. Knapp, 9 Pick.

Jones, supra. 496, 498. See, also, Donnelly v. The
2 Sharp v. Kirkendall, 2 J.J. Mar. State, 2 Dutcher, 463 ; Brown v. The
150. State, 7 Eng. 623.

8 Gaulden v. The State, 11 Ga. 47.
VOL. I. 59 [697]
§ 1016 PRACTICE, ' [BOOK VI

Massachusetts, if the case is a capital one, counsel will be as-
signed to the prisoner though he should be unable to pay for
the services to be rendered ; and, either from a sense of moral
duty or from considerations of professional honor, the mem-

‘bers of the bar have always borne this burden, and rendered
this service gratuitously, in these cases of poverty, without
murmur ; the court seeing that no one member is required
to bear too heavy a share of the burden. In the other States,
the practice appears not to be uniform; though the author is
unable to say, with much particularity, how it is.

§ 1016. But it is evident that labor and money stand on
the same footing in point of value, the one being the repre-
sentative of the other. It is not easy to see, therefore, how
counsel can be compelled to render gratuitous assistance, in
the way of their personal services, in a case where other per-
sons could not be compelled to render the like assistance by
gifts in money ; unless, indeed, their status as officers of the
court places them under the duty to obey this judicial com-
mand. In Indiana, the constitution provides, that ‘ no man’s
particular services shall be demanded without just compen-
sation’’; and the court has held, that, within this provision,
it is not competent for legislation to require counsel to de-
fend any prisoner gratuitously. But the court also held, that,
if a prisoner is poor, he may still have assigned him counsel
who will be entitled to be paid out of the county funds for
the support of the poor. _And this result was not derived
from any express statute law. In the facts of the case, a
poor prisoner, indicted for burglary, had been defended by a
lawyer named Baird, under assignment by the court. Said
Stuart, J.: “ That the services rendered by Baird were ne-
cessary to be rendered by some attorney will scarcely admit:
of argument. It is not to be thought of, in a civilized com-
munity, for a moment, that any citizen put in jeopardy of life
or liberty should be debarred of counsel because he was too
poor to employ such aid. No court could be respected, or
respect itself, to sit and hear such a trial. The defence of
the poor, in such cases, is a duty resting somewhere, which
will be at once conceded as essential to the accused, to the

[698]
CHAP. LVII.] THE RESPECTIVE COUNSEL. § 1018

court, and to the public.” As, therefore, such defence could
not be made without money or money’s worth, and as a law-
yer was under no higher obligation than any other citizen,
it was proper and legally just that the expense should be
borne as a part of the general burden of supporting the

‘poor.1 The like doctrine has been maintained also in Wis-
consin,? and Iowa,’ and not improbably in some other States.‘
_ § 1017. On the other hand, the Illinois court held, that the
county is not liable at the suit of the counsel in such a case.
And’ Skinner, J. said: “In criminal prosecutions, the ac-
cused has the right to be heard, and to defend by himself and
counsel ; and such is the benignity of our institutions, that,
lest the innocent suffer for want of proper defence, the court,
in case of inability of the accused to obtain counsel, will ap-
point counsel for him ; and may compel the counsel, as an
officer of the court, subject to its authority, to defend the ac-
cused against unjust conviction. The law confers on licensed
attorneys rights and privileges, and with them imposes du-
ties and obligations, which must be reciprocally enjoyed and
performed. The plaintiffs but performed an official duty,
for which no compensation is provided.” ® There can be no
doubt, that there are some other States in which this Illinois
doctrine will be followed.

§ 1018. In some of the States, where the indictment is for
an offence not capital, the prisoner, if he is unable to pay
counsel, and if no lawyer volunteers in his behalf, takes his
trial without this aid. In such cases, the principles already
brought forward in this chapter teach us, that the judge is
to be in some measure his counsel, and the prosecuting officer
is so to conduct the cause as not knowingly to suffer an im-
proper conviction.

1 Webb v. Baird, 6 Ind. 13, 18. * See Commissioners v. Hall, 7 Watts,
2 Carpenter v. Dane, 9 Wis. 274. 290.
8 Hall v. Washington, 2 Greene, Iowa, 5 Visev. Hamilton, 19 Ill. 78, 79.

473. [699]
§ 1021 PRACTICE. [Book vL

CHAPTER LVIII.

REMAINING INCIDENTS OF THE TRIAL.

§ 1019. The discussions thus far in this volume have
brought to view most of those particular matters, which per-
tain to criminal trials, in distinction from judicial trials gen-
erally. There are a few points, however, which should be
noticed in this closing chapter; being of too small magnitude
to justify the appropriation of separate chapters to them, while
yet it is not well to pass them by quite without mention.

§ 1020. Putting off the Trial. In civil and criminal causes
alike, it often becomes inconvenient or unsafe for one of the
parties to go to trial at the time when the other is prepared
and is pressing the court for the trial. There is not, relating

.to this matter, much which is peculiar to the criminal law ;
for, in general, the rules governing a question of this sort are
the same in criminal cases as*in civil. The motion for a
continuance is addressed to the judicial discretion of the
court, and it is of the class which are not usually revised by
a superior tribunal; though, in some of our States, the de-
cision on such a motion will be adjudged to have been erro-
neous, when a strong case is made out.?

§ 1021. It was laid down in Georgia that the State may
have a continuance without showing any cause. Said Lump-
kin, J.: “It is in accordance with the English practice, and
we are not aware that it has been changed by ourcode. The
same result would follow, provided the State were coerced to

1 People v. Vermilyea, 7 Cow. 369. State, 5 Ga. 48; Ogle v. The State, 33

° Lindsay v. The State, 15 Ala. 48; Missis. 888; Sealy v. The State, 1 Kel-
Green v. The State, 13 Misso. 382; ly, 213; The State v. Pike, 20 N. H.
Starr v. The State, 25 Ala. 49; Roberts 344; Loeffner v. The State, 10 Ohio
v. The State, 14 Ga.6; The State » State, 598; Holt v. The State, 11 Ohio
Smith, 8 Rich. 460; The Statev. Vig- State, 691; The State v. Nicholson, 14
oreux, 13 La, An. 309; Howell v.The La. An. 785.

[700]
CHAP. LVII.] REMAINING INCIDENTS OF THE TRIAL.  § 1023

a trial against her will. A mol. pros. would be entered; and
the prosecution renewed.” 1! It is believed that there are
several States in which the prosecuting officer brings on the
-ease for trial when he will; while in others it is not so, the
continuance being granted only on cause shown by him.

§ 1022. There are, in some of the States, statutory provi-
sions intended to secure to defendants the right to a speedy
trial; but, in matters of this sort, the statutes and the prac-
tice of States differ, and it will not be wise to discuss these
provisions here.

§ 1023. It.will be useful for young practitioners to read
some reports of trials, conducted before able judges by able
counsel, where the pleadings, the proceedings, and the whole
course of things are taken down and printed verbatim ; as
well as to listen to trials of this sort. He will thus gain
information on many points of practice which it is not wise
to attempt to discuss in a work like this.

1 Watts v. The State, 26 Ga. 231. vz. Bridgman, Car. & M. 271; Reg: 2.
See Turner v. The State, 25 Ga. 146; Fuller, 9 Car. & P. 35..-
Rex v. Osborn, 7 Car. & P. 799; Reg.

59* [701] |
§ 1026 PRACTICE. [BOOK V1.

CHAPTER LIX.

SUGGESTIONS TO PRACTITIONERS AND GENTLEMEN PREPARING
TO PRACTICE IN THE CRIMINAL COURTS.

Sect. 1024, 1025. Introduction.
1026-1067. What it is which the Professional Man should know.
1068-1095. The Books to be employed.

§ 1024. Itis the purpose of this chapter to conduct the
reader over a field of investigation not usually trodden in
works on the law. It. will discuss, not so much the new and
the unknown, as those things which are well known to suc-
cessful practitioners, yet are not written down for the guid-
ance of the rest of the profession; or, if written, are not
heeded by the rest. The young lawyer who will read and
practise upon what he reads in this chapter will derive from
it more benefit than from the most careful study of dozens
of volumes of ordinary text law, if he conducts such study
in oblivion of the truths which are here to be stated.

§ 1025. Let us divide these elucidations into the follow-
ing heads: I. A Consideration of what it is which the Pro-
fessional Man should know; II. The Books to be employed
in the Study and Practice. It is perceived that we are thus
required to travel over some of the ground which is common
to all the departments of the law. We could not here
profitably confine ourselves to the criminal law alone; yet
what is peculiar to the other departments will not be pre-
sented.

I. A Consideration of what it is which the Professional Man
should know.

§ 1026. A very simple proposition, which all will accept
as true, while it is practically heeded by only here and there
one, is, that it is never of any consequence for a lawyer to

[702]
CHAP. LIX,] SUGGESTIONS, ETC. § 1028

know what has been decided by a court before as law, or
what a jury has found as fact, further than such knowledge
may assist him in judging of the future, or in giving to the
yet unmoulded future its form. There are two things, and
only two, the knowledge of which is practically important ;
namely, first, to what conclusions of law and fact is it pos-
sible to bring the court and jury in the future case; and,
secondly, by what means can this be done. Let us look at
these points separately.

§ 1027. First. The Conclusions of Law and Fact to which
the Court and Jury in the Future Cases may be brought. Let
us begin with, —

The. Conclusions of Law. The distinction between the
future and the past must here be constantly borne in mind.
The past never repeats itself in exact form and particular. It
is the most common of errors for young lawyers to assume
that, if they could but carry in their minds all which has
been decided before, with the facts of every case, they should
be master of every new situation. In truth, however, were
it possible for any memory to take upon itself such a burden,
and carry it successfully, but a single step would thus be
taken toward preparing the mind for the actual work of
professional life. Many new cases would, indeed, arise, for
which there would be found a “ precedent”’ so nearly fitting
as to require but a small amount of skill to apply the old to
the guidance of the new; but, after all, no new case would
find its exact likeness in any old one. And the skill which,
in any instance, is required to show a precedent, and even
to show its direct application to the question in hand, is only
of a second-rate sort; and the lawyer who has merely this,
however high his attainments in this may be, must always
hold an inferior rank in his profession, such as should satisfy
the aspirations of no honorable mind.

§ 1028. The real distinction between a great lawyer and
a small one is, that the great lawyer looks beyond the cases
as they appear on the surface of the reports, to the laws of

the cases; looks, in other words, beyond the case into the
[703]
§ 1030 PRACTICE. [BOOK VI.

law; precisely as, in the mechanic arts, the great operator
looks beyond the mere motions which he sees going on in the
machinery, into those mechanical laws by which the motions
are controlled, and thus understands how to do the new thing
which the demands of his calling present to his attention. Still
there is this distinction, namely, that, while all the things,
new and old, pass under the cognizance of the mechanical
person, the lawyer has to deal only with those which are new,
or with those which present some special difficulty ; the rest
being managed by non-professional parties without legal
help.

§ 1029. It is true that many persons pass as lawyers who
have no inner insight into the law ; who, indeed, know noth-
ing of the law ; and who observe its outward phenomena, as
a three years old boy sees a wheel go round, without so much
as suspecting there is any law in the case. These men serve
neither themselves nor their clients well. Such legal. attain-
ments are worse for all parties than none. Yet not only do
such men exist in all ages, but they have sometimes been
known even to proclaim their own stupidity by publishing to
the world, that, in their opinion, there is no law, and all
which passes for such is a mere conglomeration of disjointed
statutes and haphazard rulings of judges.

§ 1030. Now, the difference between a statute and a ju-
dicial decision is, that the former is in its terms and in its ef-
fect a rule of action prescribed for the government of the
people; while the latter, in its terms and in its effect, is a set-
tling of a particular controversy between two or more per-
sons according to the provisions of an already existing rule of
action, which rule may be either a statutory rule or a rule
of the common law. A judge has no legislative power, and
he can create no law. But it is his province to decide
what statutes exist, and what rules of the common law exist;
and, while on the one hand he does this, on the other hand he
makes the application to the particular case. And there is
no other theory upon which any weight can be given to. pre-
cedents, except the theory which makes the judiciary an inde-
pendent legislative branch of the government, having a sort of

[704]
CHAP. LIX. ] . SUGGESTIONS, ETC. § 1032

legislative jurisdiction concurrent with the legislature proper.
If the language of the judge, spoken while pronouncing a
judicial opinion, is itself the embodiment. of the law, or is law
in any sense distinguishing it from the language of a mere text
writer, then the court exercises legislative power, contrary to
the provisions of the Constitution of the United States, and
of the Constitutions of all the several States. If, on the other
hand, the force of the decision does not consist in the recog-
nition which the adjudication itself makes of some assumed
pre-existing principle or rule of law, then it can have no
weight as a precedent; for no other case, of exact identity
with this one, considered in all its facts and all its relations,
will ever occur again, even should the world stand and lit-
igation multiply without end.

§ 1031. It is not difficult for the intelligent reader, who is
acquainted with our American governmental systems, to
see that such is and must be the true legal doctrine respect-
ing the power of judges and the force of precedents. This is
believed to be also the English doctrine; but, if it were not,
it is and must be the American. And, with us, if a judge
should declare otherwise, and hold that mere judicial words
spoken from the bench have, under any circumstance, the
force of law, this would be precisely like the gabble of some
insane President who should say that he was legally compe-
tent to hear and determine an appeal, in a judicial matter,
from the decision of the Supreme Court of the United States,
or of some Senator who should propose to take such an
appeal into the Senate. Any judicial tribunal, attempting
to set up judicial utterances as rules of law, would become
thereby a usurper of powers, according to the systems which
prevail both in our National and State affairs, everywhere
in this country. A court may, indeed, look, and does often
look, at such utterances as furnishing a sort of evidence of
the law, precisely as for the same purpose it looks at the
utterances of text writers. But if any higher force is given
to the judicial utterances, then, and to this extent, is the
judicial power a usurper of legislative functions.

- § 1032. The judges in this country have, in fact, in the
[705]
§ 1082 PRACTICE. [BOOK v1.

general course of their adjudications, kept themselves care-
fully within the limits here laid down. Thus, to illustrate
the point, the judges of the Supreme Court of the United
States hold themselves bound to follow the expositions of
State Statutes given by the highest State tribunals. But,
for these expositions, they do not accept the mere words
of the State judges; and if, for example, it was not neces-
sary to construe the statute in order to decide the case in
which the opinion of the State court was pronounced, the
Supreme Court will examine the question of construction,
and decide it as, on independent grounds, it seems right.1
The point, as thus stated, goes indeed only to the extent that
all which appears in a case, beyond what was strictly neces-
sary to its decision, is of no weight as authority. And so
much? is well recognized as sound judicial doctrine where-

ever the common law prevails.

1 Carroll v. Carroll, 16 How. U.S.
275.

2 In Maryland, however, the doctrine
of the Supreme Court of the United
States, as stated in the text, was ju-
dicially disapproved. According tothe
doctrine there laid down, all which is
necessary in Maryland to render the de-
cision of the court of appeals authori-
tative on any point decided, is to show
that there was an application of the ju-
dicial mind to the precise question ad-
judged. It was added, however, that
general views expressed by the court
illustrative of, but not necessarily lead-
ing to, the opinion on the point intended
to be decided, will not be treated as
conclusive when a like case comes up
directly for judgment. Said Le Grand,
C. J.: “In Maryland, it is usual to
limit the judgment to the question of
right involved in the issue. But where
a question of general interest is sup-
posed to be involved, and is fully dis-
cussed and submitted by counsel, the
court frequently decides the question
with a view to settle the law ; and it
has never been supposed that a de-
cision made under such circumstances

[706]

could be deprived of its authority by
showing that it was not called for by
the record. All that is necessary in
Maryland to render the decisionsof the
Court of Appeals authoritative on any
point decided, is to show that there was
an application of the judicial mind to
the precise question adjudged ; and this,
we apprehend, is the rule elsewhere.
. . « » Dicta attributed to the court by
a short-hand reporter, especially of an-
cient date; opinions expressed by a
judge speaking for himself and not as
the organ of the court; general views
expressed by the court as illustrative
of, but not necessarily leading to, the
opinion on the point intended to be
decided, are not to be treated as con-
clusive, when similar topics come up
directly for judgment. But we are
not aware of the authority which will
sustain the position assumed by the
Supreme Court, that the unanimous
opinion of a State court of the high-
est appellate jurisdiction, directly on
« point which is supposed by the
court to be presented by the record,
and which is elaborately discussed by
counsel, and is investigated with care,
CHAP. LIX.]

SUGGESTIONS, ETC.

§ 1033

§ 1033. For no purpose, therefore, is a case of any au-
thority beyond the points necessarily involved in it; or, in

and solemnly delivered by the court,
can be disregarded as obiter dictum,
merely because it is since discovered
that some other point existed on which
the judgment rendered might have
been rested.” Alexander v. Worth-
ington, 5 Md. 471, 488-490. Now,
in the nature of things, this Maryland
doctrine, even if it were not opposed by
the doctrine of the Supreme Court of
the United States, cannot be sound.
If, where the court is not even called
upon to speak, it can, by speaking,
make law, it is nothing less than a mere
arbitrary legislative body, having the
power to rule by decree like an au-
tocrat. But having opposed to this
doctrine that of the Supreme Court of
the United States, it will be sufficient
to add, also, that of the Court of Queen’s
Bench of England. An application
was made to the court for a mandamus
to compel a Police Magistrate to hear
a cause. The Magistrate himself fa-
cilitated the proceeding, being desirous
of obtaining the opinion of the Court
in the matter of law involved in the
cause, for his guidance therein and in
other cases. The Court decided, that
it could only compel him to proceed,
and he had proceeded, and it could do
nothing further. Said Lord Campbell,
C. J.: “ He’ heard the parties and the
evidence, and gave a solemn judgment,
&c. Could we, supposing we should
think that he was wrong, make an
order that he shall give an opposite
judgment? I think that we cannot do
so. We have no authority to do more
than order him to hear and adjudicate.

. Then, having no jurisdiction,
we should give no opinion. We are
not a court of advice, but of oyer and
terminer; we sit here, not to deliver
opinions which out of respect to us
might be generally followed, yet which
might without impropriety be neglected,
but to deliver judgments which may
be enforced. We ought not to give an

opinion except asa judgment.” Wight-
man, J. added: “The application is
not, and could not be, to consider the
propriety of the determination of the
magistrate, but to order him to hear
and determine ; still it is clear that it
is made, not with a view to cause him
to determine, but to obtain an opinion
from us which. may guide him and
others as to what the determination
should be. If such an opinion from us
would be binding’ I should gladly give
it; but, though probably the magis-
trate would, out of respect to our
opinion, supposing it to be different
from his own, yield, yet if on consider-
ation he retained his own opinion, he
might very properly act upon it, treat-
ing ours as extrajudicial and not bind-
ing.” Said Crompton, J.: “I go the
full length of saying, that, if we, four
judges sitting here, gave our opinions
one way, and the magistrate deliberate-
ly and conscientiously formed his the
other way,'it would be his duty to dis-
regard our opinions and determine the
case according to his own. It is clear
that a writ of mandamus never went to
a justice ordering him to decide in a
particular way; if he has not heard
and decided, it goes to order him to
hear and determine according to his
conscience. and judgment, not accord-
ing to that of this court.” Reg. ».
Dayman, 7 Ellis & B. 672, 676, 679.
Here, then, was a case, in which a ques-
tion of law was deliberately argued
before the Court of Queen’s Bench, and
all the parties concerned desired an
opinion upon it for the guidance of a
Police Magistrate in the performance
of his official duties. Yet the court
declared, that any opinion it might give
would not be binding, since such opin-
ion was not necessary to the decision
of the cause. Wisely, therefore, it re-
fused to attempt, by giving the opin-
ion, to make law by decree for Eng-

land.
[707]
[BOOK VL

§ 1035 PRACTICE.

other words, beyond what must be decided in order to decide
the cause. A further illustration of this matter will appear
in: the second volume, under the title Homicide.1

§ 1034. Thus, in part, we have the broader proposition
sustained by judicial utterances and practice. But there are
other steps of the like kind. For instance, it is a rule of ju-
dicial practice, that, when the court is contemplating a for-
mer decision, it looks at the words in which the decision was
pronounced, whether in ‘form they were spoken in reference
to the exact point on which the judgment depended or not, and
whether they were in terms restricted or general, as limited
and controlled, in their signification and in their application,
by the special facts of the particular case.”

§ 1035. Now, when a judge pronounces the opinion of
the court, and while he is speaking to the exact point of the
case, he often states a precise rule of law as governing the
case, or as being the rule on which the decision rests, or the
rule which the court wishes to have understood as the set-
tled rule of law.. Yet, according to the doctrine of the last
section, whatever of this sort the judge says, if the facts of
the case are not broad enough, as generally they are not, to
support the broad words, then the words so far fail ; and the
rule is subject to every limitation and qualification which

1 Vol. IL., § 588, note, par. 2-5, 20.

2 1 Bishop Mar. & Div. § 63 ; Mar-
shall, C. J. in Brooks v. Marbury, 11
Wheat. 78, 90,91; in United States v.
Burr, 1 Burr’s Trial, 415, 4 Cranch,
470, 482, 488; and in Cohens », Vir-
ginia, 6 Wheat. 264, 399. In the last-
cited case, this learned judge stated the
doctrine as follows: “It is » maxim
not to be disregarded, that general ex-
pressions, in every opinion, are to be
taken in connection with the casein
which those expressions are used. If
they go beyond the case, they may be
respected, but ought not to control the
judgment in a subsequent suit, when
the very point is presented for decision.”
In Mississippi the doctrine was men-
tioned, by Harris, J. in the -following

[708]

words: “ Such is the flexibility of lan-
guage, and even of sentences, discon-
nected from their context, as well as the
special state of facts to which they have
been applied, that, in courts, it has be-
come a settled rule that all adjudica-
tions are to be considered only in con-
nection with, and as explained by, and
limited to, the state of circumstances
appearing in the record.” Pass v. Mc-
Rea, 36 Missis. 148, 148. In the Cali-
fornia court, Burnett, J. stated it thus:
‘The rule is well settled, upon the
soundest principles of reason, that the
language of an opinion, in general,
must be held as referring to the par-
ticular case decided.” People v. Wink-

-ler, 9 Cal. 234, 236,
CHAP. LIX.] SUGGESTIONS, ETC. § 1038

the facts will permit. The words of the judges, therefore, do
not become a rule of law; but the adjudication of the pre-
cise matters necessarily involved in the case has its force as a
precedent.

§ 1036. Again, suppose a point is involved in the case it-
self as presented by the record ; still, if the attention of the
court was not called to it, and so the judicial mind did not
really pass upon it, the decision is, in any view, of but little
weight, and it has not at all the force of authority.2 To give
the case authority as a precedent, these two things must
concur; namely, the point which it is adduced to support
must necessarily be involved in the facts presented, and to
this point the attention of the court must have been so
directed that on it the judicial mind passed.

§ 1037. The reader should bear in mind, that this discus-
sion relates to what is in the strict sense authority. Using
the word authority in a way less strict, we often speak of the
judicial utterance when pronounced, with respect to the exact
point involved in a cause, as authority ; so, also, of the words
of text-writers of repute and of acknowledged accuracy.
And an author, in constructing his book, will quote the
words of judges, and the words of other text-writers ; and
all these are entitled to respect, and are, in one sense,
authority, but not in the strict sense.

§ 1038. Looking, then, at authority in this strict sense, it

1 People v. Corning, 2 Comst. 9, 15.

2 I cannot better illustrate this prop-
osition than by stating the facts of some
cases of which I have a personal recol-
lection, while also they are contained in
the reports. They are Commonwealth
v. Wright, 1 Cush. 46 ; and Common-
wealth v. Tarbox, 1 Cush. 66. In these
cases, objection was made to a form
of the indictment which had been used
for many years in Massachusetts, I can-
not tell how long; but, it was claimed
on the part of the Commonwealth, ever
since the State or even the colony had
an existence. It was shown, indeed,
in argument for the defendants, though
it does not appear in the report, that the

VOL. I. 60

true form was used in early colonia
times, therefore the corruption had crept
in sometime afterward. Several cases
went before the Supreme Judicial Court,
and were there decided, and were duly
reported, one or more of them on mo-
tions in arrest of judgment, wherein the
corrupt form was employed. The point,
however, had never been raised for de-
cision, and so the judicial mind had
not passed upon it, though it was in-
volved in the cases on which the judi-
cial mind did pass. Consequently the
court did not consider itself bound by
authority, and corrected the old error.
And see Vol. IL. § 407, note.

[709]
§ 1039 PRACTICE. [BOOK VI.

is, first, the statutes, with the written constitution ; and, sec-
ondly, the judicial precedents. But these may be in conflict,
one with another. If a statute and the constitution are in
conflict, the statute gives way. If two statutes, the earlier
generally yields to the later, but not quite always. If two
judicial precedents, the rule is about the same as in the case
of two statutes. If a later statute is inconsistent with an
earlier judicial precedent, the precedent yields to the statute.
When the precedent is subsequent to the statute, we gener-
ally contemplate the case as one in which judicial construc-
tion has applied its work to the legislative enactment; and,
in a certain sense, the construction prevails over the enact-
ment. But this is not absolutely and always so. If, as it
sometimes happens, the attention of the court was not called.
to the statute, and so the case is adjudged in a way. contrary
to what the statute would havé required, the decision may
be binding upon the parties, but the precedent furnishes no
rule for the future. Since it and the statute cannot both
stand, the statute must prevail. And, suppose, in such a
case, precedent is piled upon precedent, still the statute‘can
not thus be overborne.

§ 1039. The reader perceives, therefore, that there: are
decisions which have no weight as precedents; because they
conflict with some law which cannot be by decision over-
thrown, as well as because they were pronounced under mis-
apprehension in the minds of the judges. But this view
might be very much extended. There are principles of. law
which under no circumstances can be overturned by judicial
decision, however many may be the “ precedents”? which may
be piled one upon another for this purpose. One is, for
instance, that, while judicial decision may limit and expand
more or less the meaning of words, so as to give them a sort
of technical legal meaning, it cannot overthrow what is funda-
mental in the language itself. Thus, if we should count, one,
two,-six, nine, — meaning by six what has been heretofore
meant by three, and by nine what has hitherto been signified
by four, — the sum of two and two would be nine. Now sup-
pose a man should sue another for the recovery of nine

[710]
CHAP. LIX.] SUGGESTIONS, ETC. § 1041

dollars, and the question of the plaintiff’s ‘right should’ go
before the court on the agreed statement of facts that the
defendant owed him two several sums of two dollars each,
and the court should give judgment for the nine dollars;
observing, “ By the law as settled in this case, for all time to
come, the sum of two and two is nine, and the people of this
State are to count, in all legal reckonings, one, two, six,
nine”; this, though it would settle the rights of the parties
to the cause, would be no binding precedent for the future.
And if precedent should be added to precedent of this sort,
the result. would be the same.

§ 1040. Suppose, again, the court, after adjudicating as
above, should further decide that the sum of one and six is
four. In this case, whatever meaning is given to the word
four, the decision must be in conflict with the last one sup-
posed; because, according {8 the new way of counting there
laid down, the sum of one and six would be nine. Therefore,
if it were in the power of judicial determination to overthrow
the established principles of the language, it could not be done
by these two decisions, though they were multiplied by mil-
lions ; since the one would be directly repugnant to the other.

§ 1041. The cases thus supposed are such as would not be
likely to arise practically ; because, being so simple, it is not
presumable any judge could be found, much less any bench
of judges presiding over the highest court of a State, of
mental conformation so susceptible to the influence of adroit
counsél as to be led into those absurdities of decision. But
sometimes judges, even the highest, are led into decisions,
which, when they are’carefully examined, are found to be
just as absurd, and just as incapable of being made “ prece-
dents” to guide future causes. If the reader will turn to the
title Homicide, in the second volume, he will find cases dis-
cussed there of exactly this sort. For instance, when, in
former times, there was no distinction between murder and
manslaughter, but all felonious homicides were punished
alike, a statute, in England, divided these homicides into the
two degrees which were afterward called murder and man-
slaughter, placing those which were committed of “ malice

[711]
§ 1041 PRACTICE. [BOOK VI.

aforethought” in the higher degree, and the rest in the
lower degree. This statute constitutes a part of the common
law of our own country. Therefore, in an indictment for
manslaughter, the part which sets out the intent uses merely
the word “feloniously” ; while, in the indictment for mur-
der, the words “ malice aforethought” are added to the word
feloniously. The consequence is, that every judicial decision,
English or American, which has been pronounced since this
statute was passed, relating to the question whether the
offence committed was murder or manslaughter, has been a
decision fixing the meaning of the two combined words
“ malice aforethought.”’ They mean, therefore, the particu-
lar evil intent which distinguishes murder from manslaughter.
This is their legal signification, and they have not acquired
any different popular meaning. Among other points settled
is, that they do not convey the itea of an intent to take life.
Now if it were true, as it is not, that the indictment need
not charge at all the intent with which the act was done, still
an indictment alleging that the killing was “ felonious and of
malice aforethought” does allege in exact terms an intent;
and a further and different intent, where it is made by law -
a constituent element in an offence, cannot be proved under
this specific and definite allegation. In this condition of
things, statutes in some of our States have divided murder
into two degrees, the same as the old English statute divided
felonious homicide into two degrees; making it always to
be murder in the first degree when the act of killing was
done with the intent to take life. If, therefore, the charge in
an indictment is that the killing was done “ feloniously and
of malice aforethought,” there is no setting out of the statu-
tory matter of an intent to kill; and, on such an indictment,
a murder cannot be shown to bet in the first degree as having
been done with this intent; because the intent is exactly laid
in the indictment, and it is a different intent, and it is not
this intent. Still in the face of this established, and now
fundamental principle of our language, courts have held
that this form of murder in the first degree may be proved
under this form of the indictment.
[712]
CHAP. LIX. ] SUGGESTIONS, ETC. § 1044

§ 1042. Such adjudications of the tribunals, if they were
multiplied for ever, could not make law. But, it may be
said, these adjudications change the meaning of the words
“malice aforethought,” so that henceforward they include
the idea of an intent to kill. Then, if this is so, a killing
which is not impelled by the intent to kill is in all cases man-
slaughter. But, as every killing which was prompted by the
intent to kill is murder in the first degree, there is now, by
force of the “ precedents” as thus construed, no possibility
of any such killing as shall be only murder in the second
degree. The first result is, that the statute dividing murder
into two degrees is overthrown; and this the court is not
competent thus to do. But, in the second place, the courts
which have thus made the “ precedents” have at the same
time made other “ precedents” sustaining convictions for
murder in the second degree ; precedent, then, is opposed to
precedent, and the one nullifies the other.

§ 1048. One more thought, however, remains to be stated,
in order to make the demonstration complete. Cannot the
words “one,” “two,” é&c., be bent to mean this or that,
more or less, as the court, in the particular case, may choose?
Or, to refer to the other illustration, may not the term “ mal-
ice aforethought” include the idea of the intent to kill, when,
from the facts appearing at the trial, it becomes evident to
the judge that it would be best the term should include this
meaning so as to make the case one of murder in the first
degree, and exclude the idea of the intent to take life when
this other meaning seems to be best? The answer to these
questions is, No. It is, indeed, a fundamental principle in
our language that words may have different meanings when
standing in different positions, or when referring to different
subjects. But: no word or term can have one meaning or
another at the election of some person or tribunal, when used
in the same sentence, with reference to the same thing. And
if judges could play thus with ‘one phrase, they might with
every phrase, and no party going before a judicial tribunal
could know what was the matter in controversy.

§ 1044. It may be stated, therefore, that, in all cases

60 * £718]
§ 1045 PRACTICE. [BOOK VI.

where judicial decisions stand in the way thus pointed out,
they ought to be disregarded and overturned. But will they
be so in fact? Because, it should be constantly borne in
mind, the practising lawyer is, and should be, ever seeking
for the practical in distinction from the mere theoretical.
For illustration, it was lately a legal theory, presented with
ability, and accepted by many persons as true, that the States
of our Union could at will secede ; but, if we assume the the-
ory to have been correct, still in practical application it failed.
And there are, no doubt, in our country, judicial tribunals
composed of judges to whom it would be useless to present
views such as are here stated, asking them to overturn a
series of their own decisions; because, however ably the views
might be urged upon them, they would not listen long enough
and carefully enough to understand them. Perhaps, also,
there may even be judges who have not the juridical aptitude
and particular capacity of mind requisite to comprehend this
sort of reasoning ; as, in the department of mathematics, for
instance, there are men of otherwise respectable ability, to
whom any sort of mathematical demonstration is incompre-
hensible. But there are judges by whom such views as these
will be received with pleasure, as well as with advantage and
profit to the lawyer who presents them. In a case of this
sort, the lawyer who sees the truth has only to make himself’
understood by the court, to render his success as sure as is
the coming of the day of the judicial judgment.

§ 1045. We have thus seen that there are propositions of
law which can never be overturned by judicial decision ; or,
in other words, that there are decisions which, however many
times repeated, can never become binding as precedents in
future causes. On the other hand, as a general rule, what-
ever has received the sanction of direct judicial determina-
tion, pronounced intelligently, and after proper argument
and reflection, remains afterward unalterable, except by the
legislative power. Thus, as was stated in the earlier editions
of the work on the Criminal Law, in parts which were omit-
ted from the last edition, in all ages and countries wherever
the common law has been administered, the judges have

[714]
CHAP. LIX.] SUGGESTIONS, ETC. § 1046

deemed, that, as an object of the first importance, it should
be unvarying; therefore they have adhered to a course of
decision whereby a rule has become established, though af-
terward of opinion that the rule was a bad one! They
have also deemed that the law should be known.? These ob-
jects commend themselves to universal approval ; but the diffi-
culty is to distinguish between cases which have established an
unwise rule, to be still adhered to; and cases manifestly wrong,
not establishing a rule, to be consequently disregarded .®

§ 1046. A single adjudication will be more readily de-
parted from than a series of decisions ; for the common law,
when established, is as binding as the statutes. And when
only one decision has laid down a rule of property, and the
community have acted on the rule, the court will ordinarily
not reverse it; but leave its correction, if wrong, to the legis-
lature.® If the judges are equally divided in their opinion of
a case, the decision is not generally deemed binding on their
successors. If, in a particular case, a point has been adjudged,
the adjudication may, under circumstances, be the law of the
case, when the court would still refuse afterward to follow
it in another case.? Ordinarily a single determination con-
trary to precedent and to principle must be discarded, espe-
cially when it has not long stood in the reports to mislead
‘the people.2 But, to justify any overruling of the doctrine
of a former adjudication, the judges should clearly perceive
that the former was wrong. And if, contrary to reason and
good policy, any rule of law has become too firmly fixed to
be overthrown, the judges should keep this rule within the

1 Selby v. Bardons, 3B. & Ad. 2, 17;
Williams v. Germaine, 7 B. & C. 468,
476; Goodtitle v. Otway, 7 T. R. 399,
419; Walton 2. Tryon, 1 Dickens, 244,
245.

2 Butler v. Duncomb, 1 P. Wms.
448,452. “Ido not know any excep-
tion to this general axiom, that every
member of society should know when
he is criminal, and when innocent.”
Beccaria on Crimes, ¢. 11.

8 See on this subject the commentary
on the maxim, Omnis innovatio plus no-

vitate perturbat, quam utilitate prodest.
Broom Leg. Max. 2d ed. 109.

* Shaw, C. J., in Commonwealth o.
Chapman, 13 Met. 68. 70; Martin v.
Martin, 25 Ala. 201 ; Powell v. Bran-
don, 24 Missis. 343.

5 McVay v. Ijams, 27 Ala. 238,

§ Morse v. Goold, 1 Kernan, 281.

7 Dewey v. Gray, 2 Cal. 374,

8 Callender v. Keystone Insurance
Co. 11 Harris Pa, 471.

® Sydnor v. Gascoine, 11 Texus,
449,

[715]
§ 1049 PRACTICE. [BooK V1

narrowest limits, and not suffer it to govern merely by the
force of analogy.

§ 1047. We see, therefore, as the result of these views,
that the decisions themselves are more or less strong as pre-
cedents, according as they rest well or ill in those underlying
principles, which, rather than the decisions, constitute what is
known as the unwritten law of the land. This proposition,
it is seen also, is a little modified by a few practical considera-
tions ; but, in substance, it is both sound in its own nature
and sound in the sense of being actually accepted and acted
on by the courts. Consequently the chief object of all jurid-
ical studies should be to ascertain what are these principles,
and what are their respective natures and forces. Nothing
which passes under the name of legal learning, if it comes short
of this, can do more than make its possessor a sort of law-
tinker ; it cannot make him, in any true sense, a lawyer.
And he who possesses merely the law-tinker acquirements,
while he holds himself out as a legal practitioner, occupies no
respectable position,—in the true sense of the word respect-
able, — but he assumes to be what he is not, and takes mon-
ey from clients under false representations.

§ 1048. This is not the place to state in detail what the
underlying principles are, or what are their respective na-.
tures and forces. To learn these things is the great pursuit
to which he, who enters upon legal studies, devotes himself
for life. But there remains to be said a word concerning

§ 1049. The Conclusions of Fact. The rules of evidence
are, as we have already seen,” distinguishable in some respects
from the rules of law. They require, therefore, to be studied
in a manner somewhat different from the latter. In general
they are more flexible. With the exception of some rules,
which are in their nature quite technical, they can be bent
under the hand of a skilful practitioner, to meet the justice
of the particular case, much more than can the ordinary rules
of the law. And as the facts of every case are practically
what they are proved to be by the actual finding of the jury,
and as the question of fact is usually the great one, this

1 Judson v. Gray, 1 Kernan, 408. 2 Ante, § 24, et seg.
[716]
CHAP. LIX.] SUGGESTIONS, ETC. § 1052

department of legal studies should receive special attention
from the practising lawyer.

§ 1050. There is, moreover, the skill which discerns the
strong points in the testimony at command, which so ar-
ranges it that it shall produce its greatest possible effect,
which culls here and there wisely in the final address to the
jury, — a skill not to be communicated by a word, but to be
acquired in its perfection only by much thought, reading,
and experience. These considerations show a glimpse of
what the lawyer may either do, or fail to do, in the way of
producing the desired conclusions of fact.

§ 1051. Secondly. The Means to be employed, by him
who has the Skill and the other Acquirements, in producing
the desired Conclusions of Law and Fact. There are per-
sons who would say, that, if a lawyer has a question of law for
the court, his course is to present the question in the proper
form and at the proper time, as indicated by the law itself and
the course of the court, accompanied by such authorities and
suggestions as are adapted to enlighten the judicial under-
standing ; and this, these persons would add, is the whole of
the matter as to the law; while the like, as to the evidence,
comprehending an address to the jury as well as to the
judge, embraces substantially all which is to be done regard-
ing a question of fact. This, however, is a mistake, especial-
ly as the matter stands at the present in our own country.

§ 1052. There probably never was a judge with whom an
argument, in its strictest sense purely legal, and nothing
more, would be quite as efficacious as one with which was
blended some of those less ethereal forces which come from
that in the nature of man which is not so sublimated and fine
as the absolutely unadulterated reason. In matter of theory,
it is well enough to say, that the reason is the part which in
the human mind corresponds to the rudder in the ship; and
that, in the judge especially, it should control the understand-
ing in all its course through the argument to the final judg-
ment. But in legal practice, he who acts upon this theory
purely, and addresses himself solely to the legal reason of the
tribunal, without putting into his address anything which em-

[717]
§ 1054 PRACTICE. [BOOK VI.

bellishes, and wins the fancy, or anything which moves the
sympathies, or stirs the human passions, or forces the elec-
tric current of the physical nature from himself to the phys-
ical natures occupying the bench, will find in the result that
he has omitted what is sometimes the most important part of
the lawyer’s duty. It may be, and practically it often is, un-
fortunate for the result of the cause that this should be so;
yet it is the duty of an author to state to his readers the exact
truth, as far as he is able.

§ 1053. But shall an author tell the whole truth, or shall
he be “statesmanly ” in his writings, in order the better to
serve the cause of morality? If his work is a scientific one,
intended for adult men, he should state the whole truth upon
the scientific subject. There are said to be, and probably
are, instances in which inferior judges in our country are
open to bribes, as even Lord Chancellors have been in Eng-
land. The lawyer who participates in bribing, or attempting
to bribe, a judge, whether high or low, is liable to be indicted
and punished like any other man who commits a great
crime; and, in addition to this,'to be disbarred. And the
laws ought always to be executed, to their fullest rigor,
against every such practice.

§ 1054. But between what the lawyer clearly ought to do,
and what as clearly he ought not to do, there is a wide space
which some persons will term debatable ground.’ Let us
look at some of this. The judge may be a person of proud
nature and ill-furnished mind, yet disposed on the whole to
decide correctly. The practitioner, who should know the
judge, as well as know the law, may see that he needs
instruction on some very simple and elementary principles of
legal learning, by the aid of which instruction he may be led
to pronounce a favorable decision, while without it the de-
cision will probably be adverse. If, in his argument, he goes
to work to give the instruction directly, he will be met by
the intimation that the court is presumed’ to know something.
He has offended his judge, and lost his case; and, what is
worse, he has injured his prospects for all the cases which

1 See Vol. H. § 588, note, par. 18,
[718]
CHAP. LIX.] SUGGESTIONS, ETC. § 1055

will follow. In such circumstances, the lawyer must either
instruct the judicial understanding by stratagem, or lose his
case. Now, stratagem, which can be pointed out in advance,
is no stratagem. Here, then, is the opportunity for the exer-
cise of one of those mental qualities, which, in war, enters
largely into the composition of the great general. And the
truly great lawyer, in the strategic sense, will find out a way
in almost every instance in which the matter does not come
on for final disposition too suddenly. It may be by present-
ing some feigned point, which will give occasion to exhibit
the principle ; or by some incidental comments upon some
decision ; or, if the lawyer is a little less nice and scrupulous
in his mode of doing things, some book may in a friendly
way be lent to the judge, perhaps through the agency of a
third person, with some observation which will dead him to
read the desired part; or—but the ways of crookedness are
too numerous to be pointed out in detail.

§ 1055. The younger reader will suppose that the sugges-
tions of the last section apply only where. the judge is of a
very inferior order. But, more or less modified, they are
susceptible of a very wide application. There are not many
legal men, whether on or off the bench, who will acknowl-
edge themselves deficient in elemental legal learning. Yet
most of the questions which are argued, before courts depend
upon very simple principles, which, when properly explained
and applied, render the result in a reasonable degree certain,
though perhaps not absolutely so. But the principles, with
their exact limits and forces, need to be distinctly seen, as
the first step; then, as the second step, their application
should be stated. And, whether the matter is before an infe-
rior judge or a higher one, before a single judge or a bench
of judges, the difficulty is to make the principles properly
appear in the outset. The judge supposes he understands
the principles much better than you do. He is offended
when you undertake to instruct him in them. In truth, he
knows something of them; he sees them swimming mistily
in the general mazes of legal doctrine ; but he does not dis-
cern their exact lines, and proportions, and powers. Yet,

[719]
§ 1057 PRACTICE. [BOOK VI.

not the general, but the exact, is what must be brought to
his understanding in order to make sure of their proper ap-
plication to the question which is being discussed. Therefore
what is most needed in the argument is, he deems, mere
matter of impertinence. This is one of the greatest difficulties
which the lawyer, practising before the courts, even the high-.
est, and truly understanding what is needed to carry his
causes, has to overcome.

§ 1056. Another difficulty is to make his argument really
understood by the Court.1_ To accomplish this object he may
sometimes ‘find it necessary, not only to state the proposition
in his own way, according to his own mental habits, but to
adapt it also to what he knows to be the mental habits of
particular judges; thus presenting a leading idea in a variety
of forms. Yet there is no one royal road to success in this
particular.

§ 1057. If a legal practitioner is a man of no real legal
ability, and has no power of mastering subjects by his own
mental forces, or of moulding thoughts for himself instead
of being constantly kneaded like dough by other hands, he
may find it necessary, should he elect not to abandon the
profession, merely to do as best he can what he sees done by
others, and suffer his causes to take the shape which other
hands put upon them. But if he is truly the man for his
profession, his own resources will point out the way where

1 [ remember that some years ago,
when I was in legal practice, a ques-
tion of law which I had to argue trou-
bled me greatly. My understanding
was quite convinced that it should go
in favor of my client; but how to
put it so as actually to carry it in the
enlightened legal understanding, and in
the face of authorities apparently ad-
verse, was the matter of difficulty. At
last, I had recourse to the advice of a
very able and distinguished legal per-
son, much my senior. But he was
unable to suggest a feasible path. In
this dilemma, a thought like a sunbeam
came one day across my mind, and a
single sentence expressed it. I hastened

[720]

to my friend and uttered it in the one
sentence. ‘ That,” he replied, “makes
your case sure, if you can make the court
understand it.” I succeeded in impress-
ing it sufficiently on the court to win
my case ; but the lawyer on the other
side did not comprehend at all the prop-
osition by which he was beaten, while
even the opinion of the court showed
that it was not fully seen by all the
judges, though, at the argument, I per-
ceived it was by some of them. Per-
haps the fault, so far as there was any,
was in me; but, if so, the like fault
cleaves to every man who has ever pre-
sented many questions of law to any
court, however enlightened.
CHAP. LIX.] SUGGESTIONS, ETC. § 1058

specific directions cannot be given in a law book. The lead-
ing idea, which will be found stated more at large in a note
in the second volume,! is, that, if he would succeed in his
cause, he must touch those springs, which, performing their
work in the minds of the men who hold the judicial office,
really move them. And the great mistake to be avoided is,
that, as many young men most erroneously suppose, the
judicial mind is moved solely by the weight of juridical rea-
son and authority. In theory it isso moved. We may well
admit that it ought always to be so moved, in practice. But
judges are human beings. They are subject to human pas-
sions. Motives other than judicial hold more or less sway
over the judicial mind. The elements of the mere physical
nature exert their power. It is not, indeed, within the capa-
bilities of language to express everything of this sort, even
if our human minds were capable of comprehending all.
And to say that a judge is influenced more or less by consid-
erations other than judicial is not to charge him with being
corrupt.

§ 1058. Let us take a view, which, perhaps, lies in the
extreme, but which stil] should be in the mind of every
practising lawyer. Judges are brought into judicial being
by the evolutions of that great system of political machinery,
which, if it were rightly constructed and rightly moved,
would be a very different thing in itself and in its results
from what it is now, known, in its most honored manifesta-
tions, under the name of statesmanship; and, in its less
honored, under the name of demagogism. And every child,
high or low, does and should honor its birth and its parentage,
and assume more or less of the ancestral form. In some of
our States, these suggestions have of late years more weight
than formerly; for, in these States, the judicial personage
must be “born again ” every year, or every few years, or he
ceases to exist. When death, and the possibility of a new
birth, and its necessities, are before the mind, they must,
sometimes, if the mind is a human one, suggest thoughts not
quite judicial, but pertaining more to the doctrines of grace.

1 Vol. II. § 588, note, par. 18.
VOL. I. 61 [721]
§ 1059 PRACTICE. [BOOK VI.

Thus is the mind swayed, while, of course, it is not made
corrupt.

§ 1059. The judiciary, therefore, is more or less in sym-
pathy with the element out of which springs what is known
as the statesmanship of the country; and, to some extent,
though not to an extent very wide, it has to consider the.
same class of questions, or even the same questions. Now,
as @ proposition very broad, though happily not quite univer-
sal, statesmanship, while it takes on its lips the name of the
law, and especially the name of the supreme law called the
Constitution, as though holding it in reverence, swears by it
precisely as the blasphemer does by the Supreme Being, and
cares just the same for it as the blasphemer does for him.

‘For example, if a statesman, whether high or low, tells us

that, in his view, the Constitution commands so and so, we do
not, as a general proposition, know whether such is truly his
view; what we know is, that, in his opinion, the interests of
the country, to which interests statesmanship devotes itself
exclusively, demand the adoption of the view by the majority

of the voters.!

11. It is not deemed necessary to
sustain the text, at every point through
the discussions of this chapter, by the
citation of authorities. Yet it may be
well to cite two or three to the state-
ment in the text here made. It is pre-
sumed, however, that the reader will
himself understand the current of the
“cases” ; and those which are given in
this note are mere prominent ones of
modern date. Let us begin with an
English one.

2. In 1842, Lord Ashburton was sent
by the British government to that of the
United States, as a special minister,
with full powers to settle certain dis-
putes which were then pending between
the two governments. Mr. Webster was
Secretary of State of the United States.
After the special objects of the mission
were accomplished by the amicable set-
tlement of the pending difficulties, Mr.
Webster called Lord Ashburton’s at-

[722]

tention, and through him the attention
of the British Government, to another
matter, of longer standing, often both
latterly and formerly agitated diplo-
matically, and once the subject of war
between the two countries. In the
words of an eminent English writer of
recent ,date, on the law of nations:
“The Government of the United States
of North America admits the right of
Visitation and Search by belligerent
men-of-war of their private merchant-
vessels, for enemy’s property, articles
contraband of war, or men in the land
or naval service of the enemy ; but it
does not understand the law of nations
to authorize, and does not admit, the
right of search for subjects or seamen.
England, on the other hand, has as-
serted the right to look for her subjects
on the high seas, into whatever service
they may embark. The claim of Eng-
land to the right of search, on the high
CHAP. LIX. ]

SUGGESTIONS, ETC.

§ 1060

f § 1060. The bias of mind which comes from statesmanly
contact and origin does not enter into the mass of questions

seas, of neutral vessels, for deserters
and other persons liable to military and
naval service, has been a question of
animated discussion between her and
the United States of North America.
It was one principal cause of the war
of 1812 between these States, and re-
mains unsettled to this day. In the
discussions of 1842, between Lord Ash-
burton and Mr. Webster, relative to the

boundary line of the State of Maine,.

the American minister incidentally dis-
cussed the subject; but no conclusion
was arrived at.” 3 Phillimore Int.
Law, 438. Let us see a little more ex-
actly what was done on the occasion
thus alluded to, and thence trace the
matter down a little further. Mr. Web-
ster addressed to Lord Ashburton a
letter, dated Aug. 8, 1842, in which he
said: “ We have had several conver-
sations on the subject of impressment,
but I do not understand that your Lord-
ship has instructions from your govern-

ment to negotiate upon it, nor does the’

government of the United States see
any utility in opening such negotiation,
unless the British government is prepared
to renounce the practice in all future wars,”
Here, the reader will observe, states-
manship had told the British people,
that, according to a most sacred princi-
ple in the law of nations, for which they
should spend their money and lay down
their lives, when, in time of war, the
commander of a war-vessel searched a
neutral merchant vessel, and there found
a person whom he believed to be a sub-
ject of his own sovereign, he might, if
so instructed by his sovereign, take this
person forcibly away from the neutral
vessel, and then let the vessel go on her
voyage ; for such was both the doctrine
and the practice. The theory was,
that the right to search, which might
be lawfully exercised over every neutral
merchant vessel, whether anything con-
traband was actually found on board or

not, gave the searching belligerent: such
a standing on the neutral territory as
enabled the boarding officer there to
judge of the nationality of the persons
whom he saw, and take away thence
those whom he deemed to be subjects
of his master. The United States did
not see the matter as England did, and
both had spent much treasure and blood
to establish each the respective views of
its statesmen on this momentous ques-
tion of internationallaw. “England,”
said Mr. Webster, proceeding in the
discussion, ‘‘ asserts the right of im-
pressing British subjects, in time of
war, out of neutral merchant-vessels,
and of deciding by her visiting officers
who, among the crews of such mer-
chant-vessels, are British subjects.”
And he begged the British government
to enter into a treaty with the United
States renouncing this right. Lord Ash-
burton, in reply, told Mr. Webster that
his note should be “ transmitted, without
delay,” to the government. of his sover-
eign, “and will, you may be assured,
receive from them the deliberate atten-
tion which its importance deserves.
...» Sensible of the anxiety of the
American people, on this grave subject
of past irritation, I should be sorry in
any way to discourage the attempt at
some settlement of it; and, although
without authority to enter upon it here
during the limited continuance of my
mission, I entertain a confident hope
that this task may be accomplished,
when undertaken with the spirit of can-
dor and conciliation which has marked
all our late negotiations.” 6 Webster’s
Works, 318, 319, 326.

3. England, it should still be borne
in mind, had, through her statesmen,
proclaimed to the world, and her gov-
ernment had proclaimed it to her own
subjects, that, as a principle of inter-
national law, when, in w time of war,
her ships of war searched neutral mer-

[723]
§ 1060

of judicial cognizance.

PRACTICE.

[BOOK VI.

Into some.of them it enters; and,

in dealing with this class of questions, the practising lawyer

chant vessels, it was the province of
the boarding officer to determine who
among those found on board were Brit-
ish subjects, and to take them away
forcibly, then let the merchant vessel
pass on. If she did not believe this. to
be a principle of international law, she
would not pretend to have any right to
enforce it against other nations; for
surely she would not claim to have im-
tmaunities herself which could not be ex-
ercised by others. To enforce this
great principle of international law, she
had carried on a devastating war with
the United States, and the war had
ended without a settlement of the mat-
ter. Noi, in 1842, all difficulties be-
tween the two countries being adjusted
except this one, it was‘proposed by the
American government, that, whenever
England could see the matter differently
from what she had done, this one should
be settled also, by amicable negoti-
ation. Lord Ashburton promised all
which he could promise that so it should
be. England had once hoped, that
over the darkened minds of the people
of the United States the light might
yet shine, and she and the United States
be at accord on her own ground as to
the law. If this could be, how the
“statesmanly ” heart which beat be-
tween those beating seas would have
leaped for joy! The “ fatted calf” —
not men — would have been killed when
the prodigal returned. 4

4. But the statesmen loved the law
of nations too well to yield so important
a, point, for which Englishmen had shed
their blood, and paid their money, and
were now paying their taxes, even
though the object was to secure a per-
manent peace between two great and
otherwise friendly nations. If it had
been themselves alone who were con-
cerned, how ,cheerfully would these
statesmen have died to secure the ob-
ject! But, no, it was the law! Thus

[724]

the proposal of the American govern-
ment remained year after year unan-
swered. When the civil war broke
out in this country the statesmen knew,
for they said, that the people of the
United States were still “sensitive.”
Would it not be a good time now to
answer the proposal of the American
government? No. English statesman-
ship loved the law too well, and deemed
its maintenance too important to yield
to the’ American demand. And it
might be, it was even to be hoped, that
the United States herself, surrounded
now by new circumstances, and her af-
fairs to some extent in the hands of a
new set of statesmen, might be led out
of her former darkness into the light.
Such, we are to understand, were the
yearnings of English statesmanship ;
assuming, of course, that statesmanship
loves the law, as she professes.

5. But the time came at last, after
the American proposition had lain nine-
teen years before the British govern-
ment unanswered, when statesmanship, .
sitting with beating heart between the
beating seas, as I have just said, felt
coming over her the painful duty wrung
from her bleeding breast, by her over-
whelming love for the law of natious,
to make to the American government
the long-sought and long-deferred an-
swer. It now appeared that, may be,
though it seemed scarcely possible, the
United States herself was ready to come
over, or was coming over, or even had
come over to the embrace of the true
law of nations, for which England had
sacrificed so much. And if the long-
lost prodigal did return, should the calf
bekilled? ‘No,|” said Statesmanship,
her eyes streaming with the fire of that
love for the law which was burning in
her breast, “on such an occasion let the
sacrifice be men. Let the blood of Brit-
ons and Americans alike gush out from
the ships and run down into the sea;
CHAP. LIX.]

SUGGESTIONS, ETC.

§ 1060

will be obliged to use a “skill” pertaining to things other
than merely the law, if he would succeed against the influ-

let old Neptune be awakened by the
groans of the dying; and let the lands
be fattened with human gore! What
are the lives of men, when compared
with the life of the law! If but astar
should cease to obey the law, it would
rush from the firmament, and put out
the eye of the Universe, even this Brit-
ish isle!”

6. That this is in spirit and in sub-
stance the course which British states-
manship pursued will appear as I go
rapidly through with the narrative. On
examining the Parliamentary Papers of
1862, North American, No. 5, we per-
ceive, that, Nov. 27, 1861, it was re-
ported officially, that ‘‘ Messrs. Mason
and Slidell, commissioners from the so-
styled Confederate States of America
to this country and France,” with their
two secretaries, had been taken from
the Trent, a British merchant ship car-
rying also the mails, by an American
war-vessel named the San Jacinto, com-
manded by Capt. Wilkes. Whether
this was done by express order of the
American government it did not abso-
lately appear; though it does appear
(No. 3.) that Mr. Adams, the Amer-
ican minister, had found himself able to
make to the English Secretary, Earl
Russell, such representations as left it
nearly or quite certain Capt. Wilkes
had proceeded on his own responsibility
alone. And it seems very plain the
English government had it in its power
to know certainly this was the fact ; for
the newspaper of high position known
as The Times, which too ardently es-
poused the cause of the statesmen to
make any needless admission against
them, stated in its issue of Nov. 30th:
“Lieutenant Fairfax, of the San Ja-
cinto, said, we are informed, on board
the Trent, that his commanding officer
acted on his own responsibility.” It
seems, therefore, that Capt. Wilkes had
taken the precaution to let the officers

“61%

of the Trent, and through them the
British government, know he was act-
ing on his own responsibility, not hav-
ing been able to consult his superiors at
Washington. :

7. In this state of things, we have no
means of ascertaining, from any official
sonrce, what was the legal advice which
the British Cabinet obtained from the
Crown Officers ; because, in England,
supposing the advice was committed
to writing, papers of this sort appear
not to be published officially as they are
with us. But, consulting the files of
The Times, we find the public was in-
formed through its columns, Nov. 28,
of the “outrage.” Then, on the next
day, Nov. 29, p. 6, the following ap-
pears: “ We are now in a position to
state, that the depositions of the officers
on board the Trent have been sub-
mitted to the law officers of the crown,
and that their opinion has been given
to the effect that the proceedings of the
American frigate are not to be justified
by the law of nations It is, we under-
stand, the opinion of these jurists, that
the right of the Federal government,
acting by its officers, was confined to

‘visiting and searching the Mail Packet ;

that, if any men or things believed to
be contraband of war had been found
on board her, the proper course was
to take her into port and submit the
question to a Prize Court, which would
have heard evidence and argument on
both sides, and would have decided the
case according to precedents and author-
ities.” The editor then goes on to sug-
gest some reasons sustaining this view.
And he says, also, there is an opinion
which “has many supporters,” that,
even on a hearing before a Prize Court,
the capture would not have been justi-
fied. He adds: “ We are content,
however, that the question should rest
upon the more narrow, but indisputable
ground, on which our Law Officers put
[725]
\
§ 1060

ence of the prejudice.

PRACTICE.

[BOOK VI.

But here, again, as this “skill” isa

matter akin to “stratagem,” if indeed it is not sometimes

it, that it is contrary to international
law for the officer of an armed cruiser
to make himself a judge at sea.” This,
the reader perceives, is the precise point,
—,“ for the officer of an armed cruiser to
make himself a judge at sea,”—on
which a seventy years’ controversy had
been going on between England and the
United States, England insisting upon
the right, and the United States deny-
ingit. The Times adds: “The Cab-
inet meets to-day to consider what action
shall be taken upon the opinion of the
Law Officers.” On the day following,
this newspaper publishes an account of
this Cabinet meeting, and its doings.
“The Cabinet,” says the article, ‘‘met
yesterday to deliberate on the steps
which should be taken to obtain satisfac-
tion for the recent outrage on the Brit-
ish flag. On so momentous an occa-
sion, we cannot doubt that every point
was discussed with the utmost care, and
that the decision was not arrived at
without a full consideration of the pos-
sible consequences. Among the mem-
bers of the present government are men
of the greatest experience and the most
profound learning. Lord Palmerston
has been engaged in political life for
half a century, and has conducted the
foreign affairs of this country during an
age pregnant with revolutions and dy-
nastic changes. Lord Russell has all
his life made constitutional history and
law his study, and his opinions may al-
ways be counted upon in favor of na-
tional and individual liberty.” And so
the article goes on, letting the reader
know that the Cabinet was composed
of men of the very highest legal and
political wisdom. After announcing
the result, which, the reader will per-
sently see, was, in substance, that the
United States must disown the act of
Capt. Wilkes and humble herself be-
fore England in seven days, or the dogs
of war would be let loose, the writer

[726]

proceeds: “ The principle on which our
government rests its demand is, that a
British ship must— until her violation
of neutral rights is fully proved —be
held to be British ground, as much as
if she were an actual piece of British
soil, and the right to protection of all
persons on board is as valid as if they
were on British territory. Now, no
such violation has been proved, or has
been sought to be proved, against the
Trent, and consequently the seizure of
the four persons who were forcibly
dragged from her decks was entirely
illegal.” The Times, of Nov. 30, 1861.
Here, again, is the old doctrine repeated ;
it is the exact doctrine for which the
United States struggled through the
war of 1812 by arms, and ever after-
ward by a course of unceasing diplo-
matic labors. But England held the
contrary. ‘“ Now,” says England, “ if
you come upon my ground, and be-
lieve and practise the law as Ishave been
trying to make you understand it, be-
laboring you with the engines of war,
and wooing you with the pipings of
peace, for seventy years, I will fight
you, I will ; I will not endure the ‘ ont-
rage,’ I will not.”

8. Turning to the official record (Par-
liamentary Papers of 1862, North
America, No. 5), we find that the next
day after the Cabinet meeting was held,
Earl Russell sent a series of despatches
to Lord Lyons, the British minister at
Washington, directing the latter to de-
mand of the American government
“the liberation of the four gentlemen
[Messrs. Mason, Slidell, McFarland
and Eustis], and their delivery to your
Lordship, in order that they may again
be placed under the British protection,
and a suitable apology for the aggression
which has been committed.” And he
gave for his guidance the following in-
struction: “Should Mr. Seward ask
for delay in order that this grave and
CHAP. LIX.]

SUGGESTIONS, ETC.

§ 1060

the same thing, there is no form of words which will serve to

direct the practitioner in all circumstances.

painful matter should be deliberately
considered, you will consent to a delay
not exceeding seven days. If, atthe end
of that time, no answer is given, or if any
other answer is given except that of a
compliance with the demands of Her
Majesty’s government, your lordship is
instructed to leave Washington with all
the members of your legation, bringing
with you the archives of the legation,
and to repair immediately to London.
If, however, you should be of opinion
that the requirements of Her Majesty’s
government are substantially complied
with, you may report the facts to Her
Majesty’s government for their consider-
ation, and remain at your post till you
receive further orders.” ‘These ‘papers
are dated Noy. 30, 1861. There were
also sent out to the naval commanders
in the American waters, and elsewhere,
orders which meant war, if they meant
anything ; and the most rapid ‘war prep-
arations were at once entered upon at
home. Looking at all these things in
connection, the demand excluded every
opportunity for reasoning or conference
on the law; but, in substance, it was
this : “ America, if you dare to come
to the view of the law which I have
been endeavoring for seventy years to
make you embrace, I will have no con-
ference with you, you dastard ; I will
not have it thrown in my teeth that Iam
a hypocrite ; I am like the God whom
I adore, ‘the same yesterday, to-day,
and forever’; I walk in the honored
paths of ‘ statesmanship,’ with the se-
rene light of the law, which changes
not, always before me; and you, should
you be found to. take one step in the
path of legal light wherein I have al-
ways walked, and tried so hard to
make you walk in it, shall feel my iron
war-hand within seven days, at farthest,
you dastard.” Of course, under such
circumstances, the United States con-
tinued in her old path, and did not take

Indeed, the

England’s. The four persons were giv-
en up, and the fact that Capt. Wilkes
acted without orders was the apology.
9. But the point which is here illus-
trated is, that statesmanship in England
was, on the 26th of November, willing
to keep up a state of irritation between
its people and the people of another na-
tion in order to sustain one view of the
law; and, on the 30th of the same No-
vember, it shut down the gates of argu-
ment and was ready to fight for directly
the opposite view. And from this we
see, that its professions of love for the
law were all assumed, and nothing real.
10. In this Trent case, every possible
effort has been made, and will continue
to be made, to conceal the point as I thus
putit. First, it is said, that Mason and
Slidell were not citizens of the United
States, as England viewed the case.
Of what country, then, were they citi-
zens? England never acknowledged
the existence of the Confederate States
as a nation. And when these Com-
missioners, or Ministers Plenipotentiary,
or whatever they were called, were de-
livered up, Lord Lyons wrote to the
commander of the British war-vessel
which conveyed them away as follows :
“Tt is hardly necessary that I should
remind you that these gentlemen have
no official character. It will be right

‘for you to receive them with all courte-

sy and respect as private gentlemen of
distinction; but it would be very im-
proper to pay to them any of those hon-
ors which are paid to official persons.”
Lyons to Commander Hewett, p. 30, 31,
of the before-cited Parliamentary pa-
pers. And these gentlemen, though
they went to England and France, were
never acknowledged anywhere abroad
as possessing any official character.
If they were “‘belligerents,” at war with
the United States, they were no less cit-
izens.

11. But another, and the principal

[727]
j
§ 1060

PRACTICE.

[BOOK VI.

circumstances must be considered, the peculiar quality of
the judicial mind, its infirmities, its temptations, and its

question considered in both countries
was, whether, assuming them to stand
in the light of embassadors, sent by a
belligerent to a foreign court, the act of
taking them from the Trent, which
Capt. Wilkes had the undisputed right
to search, was unlawful. On this point,
the question. divides itself into two
heads: first, whether, if the Trent had
been brought in for adjudication, the
act would have been lawful; and, sec-
ondly, whether it was so without such
bringing in. Mr. Seward, following ex-
actly in the path of the Queen’s law
advisers, and of the British Cabinet, as
stated in The Times before quoted,
which statement accords with what “in-
telligent circles’? in this country.have
always understood the fact to be, an-
swered the first proposition in the affirm-
ative, and the second in the negative.
Then it stood thus: If it should turn
out that Capt. Wilkes had exercised a
clemency to his own pecuniary loss and
the loss of his men, sparing the ship
when he might have made a prize of
her, this was ground upon which Eng-
lish statesmen were to hurl the nation
into war within seven days ; while, if
the American officer had been less kind-
ly disposed, and more selfish, there
would have been no war. This aspect
of things did not look well. Mr. Sew-
ard’s reasoning, as was doubtless the
reasoning of the Queen’s law advisers
and her cabinet in the first instance, was
based on English authorities, and es-
pecially on expositions of the law made
by the late Lord Stowell. Says Philli-
more, in his work on International Law:
“Tf the authority of Zouch, of Lee, of
Mansfield, and, above all, of Stowell,
be against the demand of England,
; . it cannot be supposed (except,
indeed, in the particular epoch of a Rev-
olution, when all regard to law is
trampled under foot) that the argumen-
tum ad patriam would not prevail, —at

[728]

all events, it cannot be doubted that it
ought to prevail ; and, should the coun-
try relying upon such authority be com-
pelled to resort to arms, that the guilt of
the war would rest upon the antagonist
[England] refusing to be bound by it.”
1 Phillimore Int. Law, 60, 61. I do
not propose to discuss the authorities, it
not being necessary for the purposes of
this note. But Earl Russell, after re-
ceiving Mr. Seward’s exposition of the
law, and after taking time for consider-
ation and consultation, put another and
new version on the authorities, and de-
nied that the Trent was even a proper
subject to be brought in for adjudication
by aprize court. In a despatch to Lord
Lyons he summed up the matter thus:
“The rule, therefore, to be collected
from these authorities is, that you may
stop an enemy’s embassador in any
place of which you are yourself the
master, or in any other place where you
have a right to exercise acts of hostility.
Your own territory, or ships of your
owr country, are places of which you
are yourself the master. The enemy’s
territory, or the enemy’s ships, are
places in which you have a right to ex-
ercise acts of hostility. Neutral ves-
sels, guilty of no violation of the laws
of neutrality, are places where you have
no right to exercise acts of hostility.”
Russell to Lyons, dated Jan. 23, 1862.
Parl. Papers as above, p. 35,36. Now,
the law is a thing of principles ; for, as
we have seen (ante, § 1027 et seq.), there
never were and never can be two cases
exactly alike in every particular. In
matter of principle, therefore, it is not
possible for the acutest understanding
to distinguish between the case as thus
put by the English Secretary, and the
old casd of the impressment of subjects
into the army or navy. The principle,
in the case of impressment, was, that,
first, you had the right to seize your
own subjects when you could do so with-
CHAP. LIX.]

SUGGESTIONS, ETC. c

|
§ 1060

longings, and what is practicable (and, it should be added,
what is honest), before any course can safely be decided upon.

out violating neutral territory ; and,
secondly, when you were searching a
neutral vessel, you had acquired that
status on the deck which enabled you
to drag the person away. ‘The princi-
ple underlying the matter as now put
by Earl Russell is, that, first, you may
stop the embassador when you can do
so without violating neutral territory ;
and, secondly, when you are searching
aneutral vessel, you have not acquired
that status on the deck which enables
you to drag the person away. But, in
principle, there is no difference. He
says: “you may stop, an enemy’s em-
bassador in any place of which you are
yourself the master.”’ Does he pretend,
or did any one ever pretend, that you
may seize your subject citizen in a place
of which you are not, at the moment,

yourself the master? But perhaps it.

is the province of statesmanship to quib-
ble, as well as to profess to have opin-
ions of the law which are not in fact
entertained. Perhaps statesmanship will
now say that the law of nations is not a
thing of principles, like the other de-

partments of the law. Said this great .

luminary (Stowell), sitting in the Prize
Court and speaking particularly of the
law of nations which he was then admin-
istering: “ All law is resolvable into
general principles. The cases which may
arise under new combinations of circum-
stances, leading to an extended appli-
cation of principles, ancient and recog-
nized, by just corollaries, may be in-
finite ; but, so long as the continuity of
the original and established principles
is preserved pure and unbroken, the
practice is not new, nor is it justly
chargeable with being an innovation on
the ancient law; when, in fact, the court
does nothing more than apply old prin-
ciples to new circumstances.” The At-
alanta, 6 C. Rob. 440, 458. But,
according to the view taken by British
statesmanship on the 23d of Jan. 1862,

Lord Stowell does not amount to much,
after all. While administering the law
of nations in the Prize Court, and con-
sidering for what neutral vessels might
be cohdemned as prizes of war, he had’
gravely laid down the doctrine, this
wonderful light had, that the laws of
war permit the belligerent to capture
the enemy’s embassador on board the
enemy’s vessel, or on land belonging
to either of the parties! Wonderful !
Our own Chief Justice Marshall put the
case a little more concisely as well as
comprehensively, when he said: ‘“ War
gives to the sovereign full right to take
the persons and confiscate the property
of the enemy wherever found.” Brown
v. ;United States, 8 Cranch, 110, 122.
But this utterance, like all others from
every bench (ante, § 1034), was made
with reference to the subject under dis-
cussion. So Lord Stowell, discussing the
causes for which a neutral ship might be
brought for adjudication before a prize
court, as haying contraband despatches
and the like on board, says: ‘It is the
right of the belligerent to intercept and
cut off all communication between the
enemy and his settlements, and, to the
utmost of his power, to harass and dis-
turb this connection, which it is one of
the declared objects of the ambition of
the enemy to preserve.” The meaning
of this is, as every reader of the case
knows, that, if a neutral vessel carries
despatches from one of the belligerents
to the colony of the belligerent, the
vessel is liable to be brought in there-
for, and condemned by a prize court.
He then goes on to say, that despatches
may be sent from the belligerent to his
embassador, who has been received, and
acknowledged, and is resident in the
neutral country; and the meaning is,
that the neutral vessel is not liable to
condemnation in a prize court for tak-
ing such despatches. He then proceeds
thus: “ Persons discharging the func-

[729]
§ 1060

‘PRACTICE.

[BOOK ‘VI.

Together with these things, the practitioner should consider
his own capabilities, and his own peculiar connections and

tions of embassadors [a thing which
Mason and Slidell were not doing, and
were not even entitled, according to
the understanding of England herself,
to do] are, in a peculiar manner, objects
of the protection and favor of the law
of nations. The limits that are as-
signed to the operations of war against
them [I give the italics as they stand
in the book of reports], by Vattel, and
other writers upon those subjects, are,
that you may exercise your right of
war against them, wherever the character
of hostility exists ; you may stop the em-
bassador of your enemy on his passage;
but, when he has arrived, and has taken
upon himself the functions of his office,
and has been admitted in his repre-
sentative character, he becomes a sort
of middle-man, entitled to peculiar priv-
ileges, as set apart for the protection of
the relations of amity and peace, in
maintaining which all nations are, in
some degree, interested.” The Caroline,
6 C. Rob. 461, 465, 467, 468. Now,

taking these words with their context

and as applied to the precise and only

subject then under discussion, being the .

right to bring in neutral vessels for vio-
lations of their neutrality, it requires a
statesman, or a lawyer who hopes to
become one, to see that they only mean
“you may capture the embassador if
you find him in an enemy’s vessel,” — a
truth easily enough understood without
the expositions of a Lord Stowell. He
mentions Vattel, and “ otherjwriters,” as
sustaining the statement, but he refers to
no book or page in any one, or even to
any other name than Vattel. The states-
men have found in Vattel some place
which, they say, does not sustain the
doctrine. So they might find other
places which do not, both in him and in
“other.writers.” But the question re-
lates to what Lord Stowell laid down,
not to whether his doctrine is sound,
either on previous authority or on prin-

[730]

ciple. For, according to English au-
thority, England could not justify a
shutting down of discussion in advance,
and going to war in “ seven days,” if
the opposing nation could successfully
plant itself on any doctrine, right or
wrong, maintained by Lord Stowell,
sitting in the English prize court.

12. Now, this case of the Trent alone,
if rightly viewed, sustains the entire
proposition of my text. We cannot
say what one of three different legal
doctrines the English statesmen really
believed to be the sound law, whether
the one held by them Nov. 26th, or the
one held Nov. 30th, or the one held on
the 23d of the January following. The
English statesmen had made the nation
fight for what they apparently held
to be sound law on the 26th of No-
vember. They declared they would
make the nation fight in seven days for
what they said they held to be sound
law on the 30th of the same November.
And on the 23d of the next December
they declared the]same thing, without
mentioning the seven days, respecting
the perfected doctrine which they then
maintained. All the nations in the
world were interested in this matter.
And the statesmen of the principal
European countries let England and
the United States know, that they trusted
the doctrine of Nov. 30th would tri-
umph. They expressed no dissent, so
faras lam aware, from the doctrine of
Jan. 23. But, did the statesmen of the
other countries believe in the English
kind of statesmanship ? If, among my
readers, there should be found one
young man who is inclined, like some
others, to turn against his mother, and
who therefore has a special hate against
England, and thinks English states-
manship is different from what it is
elsewhere, I will recommend him to
search among the correspondence of the
respective nations for the despatches
CHAP. LIX.] SUGGESTIONS, ETC. § 1061

relations in society. He may discover that he is not the man
to take the case; and, if he does, he should frankly say so to
his client; and, if his client urges, it may still, in a matter
of this nature, be his duty to refuse, even though in other
circumstances it would be his duty not to decline.

§ 1061. As to mere ordinary cases, it is not deniable that
sometimes peculiar political connections will give a practi-.
tioner influence with some courts. Perhaps, as a general
rule, the practitioner who is of the same political party with
the judge, stands the best chance; but this is not always so.
The young lawyer should remember, that the thing which
we are now considering is not the susceptibility of the judi-
cial mind to corruption: not often, in this country, it is
believed, is the judicial mind susceptible of absolute corrup-
tion; and, if it were, the lawyer who should attempt its cor-
ruption would render himself thereby forever and everywhere
infamous. But, in the press of business which usually over-
whelms our courts, the patient judicial ear, and the disposi-
tion and time to follow out the thread of your argument, to
examine carefully your authorities, and to weigh everything,
and to look at everything on your side; and the predisposi-
tion of the mind to be favorable to your view, doing for you
whatever properly and lawfully can be done; with, on the
other hand, the lack of all these as regards your opponent;

in which those who backed England

was as follows: “ Mr. Seward said, that,
suid to her, in courtly and extended dip-

of course, he understood Her Majesty’s

lomatic phrase, what is more curtly
expressed by the sentence: “ We like
the last law, but none of the lying.”
13. In like manner, coming to our own
country, with what a careful regard for
the law is the note apparently written, in
which our Secretary announced to Lord
Lyons the determination of our govern-
ment to comply with the British de-
mand! This was for the perusal of our
own people. Now, turning to the Par-
liamentary Papers, as above, what do
‘we there find? Lord Lyons says, that,
before this paper was delivered to him,
he was sent for to receive a verbal com-
munication, which among other things

government to leave it open to the gov-
ernment of Washington to present the
case in the form which would be most
[in accordance with the true law of na-
tions? No.] acceptable to the Amer-
ican people; but that the note was in-
tended to be, and was, a compliance
with the terms proposed by Her.Majes-
ty’s government.” p. 27.

14. I now come to the place, where,
when I commenced this note, I intended
to introduce one or two home “cases.”
But my heart sickens. I cannot. God
have mercy upon a people deluded by
“statesmanship ” !

[731]
§ 1062 PRACTICE. [BOOK VI.

may carry for you many a case which otherwise would go
the other way. A lawyer who has “influence with the
court,” everybody knows, is always to be sought. And some-
times, owing to a variety of reasons which may exist, a law-
yer of political connections opposed to those of the judge,
may have a greater “influence” with him than one of the
same party.

§ 1062. But aside from all these considerations, a practi-
tioner who was never known to attempt to mislead a judge
before whom he practised, who never sought to ensnare the
judicial understanding, even by a citation not really applica-
ble to the case, will, when his reputation becomes thoroughly
established with the tribunal, have with it most justly an
“influence” which could not be attained, with an honorable
bench, by the opposite course of conduct. ‘Therefore, though
it may not bring in so much immediate success, it will be
found in the end the “best policy” for the practitioner to be,
at least, “reasonably” upright. There is a doctrine pertain-
ing to what may be termed the statesmanship of morality, to
the effect that, whatever be the end sought in life, if the end
itself is a justifiable one, “honesty” in the steps leading to
the end “is the best policy.” But the effect of this maxim
is only to entrap for heaven the feeble understandings; and
leave a clearer way and more respectable for men of stronger
minds, who discard the maxim. ‘Truly, if a man would
promote his own peace of mind, or his real and permanent
respectability, or save himself from the unutterable anguish
which will sooner or later come to him as a recompense for
wrong-doing, he must be honest, and strictly so in every par-
ticular, — honest in his sentiments, honest in his actions and
his dealings, and honest in his speech. But there are many
ends, lawful in themselves, which cannot be attained in this
way. Success in a particular cause cannot always be so
attained. Not always can the highest general success before
courts and juries be so attained: but undoubtedly it can be
more frequently than is generally supposed ; or, at least, than
some practitioners seem to suppose. By “honesty ” is here
meant something a little more exactly upright than what

[732]
CHAP. LIX.] SUGGESTIONS, ETC. § 1067

generally goes by the name. Lawyers are not, as a class,
deficient in what is termed common honesty.

§ 1068. And it is believed that there is room in the pro-
fession for men of the very highest standard of integrity and
uprightness. Their professional growth will not always be of
the most rapid kind at first, but it will be sure and strong.

§ 1064. There are considerations of a very earthly na-
ture addressing themselves particularly to lawyers, favoring
the “ policy ” of the strictest uprightness of life and practice.
The truths of the law skirt everywhere the region which is
termed moral truth, or, what is most common, lie within the
very region itself. The consequence is, that men of weak
moral perceptions never can become first-class lawyers, how-
ever earnestly they may prosecute legal studies. And the
stronger the moral nature, other things being equal, the abler
the lawyer. Therefore this moral nature should be culti-
vated and kept in vigorous growth by him who would ac-
quire the legal ability necessary to the largest professional
success.

§ 1065. But this is not all. The cycles of things on our
planet are constantly shifting, and we are now entering a
cycle wherein right, in its conflicts, is destined to triumph
over wrong. It is well to be on the winning side.

§ 1066. There is another consideration of still greater
weight than these, yet one which will be by many less appre-
ciated. There is in the very simplicity of a straight-forward
and scrupulously upright life and bearing, and of an integrity
which never bends before any gale, a power which neither
matchless eloquence, nor peerless low cunning, nor states-
manly intrigue can rival or withstand. It is a power which
is felt more than acknowledged, and which accomplishes
what it is not even credited afterward with having done.
And the lawyer who has this power will often carry a judge
and jury when no other force could prevail. Like the elec-
tric currents in physical things it conquers where it is not
seen. ‘There is more in this paragraph than will be manifest
to the understandings of the majority of readers.

§ 1067. Though the foregoing views were written with a

VOL. I. 62 [783]
§ 1069 PRACTICE. [BOOK VI.

more particular reference to the relations of the practitioner
to the court, they all have their application also. to his rela-
tions to the jury. But the jury is moved by influences less
purely legal than the court; while almost of necessity this
body is composed of men of less general intelligence and
less culture than is the bench of judges.

Il. The Books to be employed in the Study and Practice.

§ 1068. Before we consider what books there are upon the
criminal law, and what is the particular value of each, it will
be desirable to take a general view of law books. The books
of the law are divided into several classes by name; but
they are to be contemplated rather in respect to their natures,
than to the names which their authors may have given them.

§ 1069. Looking at the natures of the books, we divide a
lawyer’s library into four classes; namely, first, reports; sec-
ondly, digests; thirdly, elementary treatises or commentaries;
fourthly, books blending in different proportions the digest
and commentary, being of a mixed kind. Of the first class it
may be observed, that, in all or nearly all of the reports,
ancient and modern, the statement of the case, when not
appearing in the opinion, and the head notes, are the work of
the reporter: the ancient reports generally have only the
reporter’s understanding of the opinion of the court, orally
pronounced ; but, in the modern American ones, the opinion
is usually written out by the judge who delivered it, and
printed from his manuscript ; while, with the English judges
of the present day, the practice is not uniform. In respect
to the points decided, we are to understand, that all the
members of the court concurred in them unless the contrary
appears; but the judges do not usually consider themselves
collectively responsible for all the observations occurring in
the course of an opinion. Secondly, digests are composed
of short statements, commonly, not necessarily, arranged in
the order of subjects alphabetically, of the points decided in
the cases. They are of different degrees of merit, according
to their accuracy, brevity, and convenience of arrangement.

They do not profess either to impart new views of the law,
[734]
CHAP. LIX.] SUGGESTIONS, ETC. § 1071

or to place the old views in new lights. They are, in other
words, full indexes to the reports. Thirdly, elementary
treatises or commentaries. There is but slight practical
difference, if any, between a legal treatise and a commentary
on the law; though, assuming there is a difference, the latter
term may imply something more of legal disquisition than
the former, while perhaps the former conveys the idea of.
greater fulness of treatment than the latter. The office of
such a work is not well defined, but is substantially as fol-
lows: it gives the principles which have governed the decided
cases, according to the author’s views of those principles,
stated in an orderly way. Fourthly, books of the mixed
class require no special observation. But it should be borne
in mind, that these classifications refer to the actual charac-
ters and aims of the books, rather than to the names which
the authors may have given them. Not unfrequently a book
which is a mere digest—not on that account to be under-
valued — begins its title-page with the word “ treatise,’ or
“@@mmentary.” If the book is of the mixed class, such a
word is as appropriate as any; because the English language
has no single term accurately conveying this idea.

§ 1070. The usefulness of any book depends on the fol-
lowing things: first, its accuracy; secondly, its fulness;
thirdly, its convenience of reference; fourthly, its compact-
ness ; fifthly, its originality, as presenting matter not to be
found elsewhere; sixthly, the perspicuity of its statements ;
seventhly, its subject-matter, as coming or not within actual
wants. All these qualities may be possessed\alike by reports,
digests, treatises, and commentaries; with the exception that
digests cannot be original.

§ 1071. The student and the practitioner of the Jaw have
more or less use for all these classes of books. But the most
important for both are treatises and commentaries. And
they are benefited by them in proportion to the real ability
with which they are written. No page of a properly written
commentary can meet.the eye, whatever be the particular
legal subject of which it treats, without doing something to
fit the student for legal practice in every department of the

, [735]
§ 1073 PRACTICE. [Boox VI.

law. But an ill devised and badly written book may injure
his faculties, and misdirect his inquiries, though the positive
statements of law in it are not erroneous.

§ 1072. A book may be useful without heing fitted for
citation in the courts. Such a book is a digest: it contains
nothing new, it merely helps us find the decisions. Buta
book to be cited must have something new in it; for the
judges wish to be referred to original sources. An element-
ary treatise or commentary may and should contain what is
new; if it does not, the author did wrong in making it pub-
lic. - The court, therefore, is properly referred to this original
source. Its writer has perhaps cited multitudes of cases to
establish a proposition; just as the discoverer of a law of
nature cites the facts of nature as his authority. But the law
of nature, though it always existed, is really, as stated by the
discoverer, a new thing to the mind of man. And when the
doctrines in the treatise or commentary are not new in this
more absolute sense, they are new as standing in new rela-
tions, and clothed in original language. *

§ 1073. There has been, for a long series of years, both in
England and the United States, a flood of legal books on all
manner of subjects, proceeding from minds not duly fur-
nished, or not well appreciating the duties of legal author-
ship or the true wants of professional readers, and drank up
by a soil ill watered by professional culture. Thus, it is
understood by all truly cultivated professional minds, that
the law consists of principles, in distinction from mere points
adjudged, which are but particular manifestations of the prin-
ciples!; yet one class of the books here meant are deposito-
ries only of points, and the principles, which are the law
itself, are not given. Yet such books have always found in
the profession admirers, who, after purchasing the “ points,”
are astonished that the old points and the new cases which
arise in practice do not fit one another. So they discard
the old book and buy a new one, which is discovered to be
no more serviceable than the old, and still the wonder is why
such excellent books do not satisfy the needs of actual prac-.

, 1 Ante, § 1028 et seq.
[736]
CHAP. LIX.] SUGGESTIONS, ETC. § 1075

tice. A little reflection would show the reason to be, that
the books do not contain the law, but only such manifesta-
tions of the law as cannot be expected to occur in exact form
again, since it is the course of all things for the past never
precisely to repeat itself But, for want of this reflection,.
books of this sort flourish and die, almost like annual plants,
in the most profuse abundance.

§ 1074. Another class of these authors, whose works pass
thus rapidly away, proceed on the idea, that, if they preserve
on their pages the exact language of the judges, they cannot
be wrong; while, in- truth, if the judges are accurate to the
very highest degree imaginable, their words, transferred from
their places in the reports to. the other connections which
any such author would give them, will, in the majority of
instances, be found practically to mislead.2, But, more than
this, an author, duly to instruct, must be more accurate in
his delineations of the law than it is possible, as a general
rule, for the judges to be, overborne as they are with busi-
ness, and having their inquiries scattered among all manner
of incongruous topics. No higher compliment was ever
paid to a judge than to say that he writes with the accu-
racy of text law; and no more disparaging remark could be
made of a text-writer than to say, that he is no more accurate
in legal disquisition than, on the average, are the judges on
the bench. Yet Jaw books written on this erroneous theory
have always their admirers, who wonder why they do not serve
them practically as well as they had supposed they would.

§ 1075. If the reader will spread before him a full cata-
logue of our law books, past and present, he will see the
force of observations here made. The number of these
books which have enjoyed a period of popularity with the
profession, then died, is very great indeed. And though they
were of differing orders somewhat, the principle of error (if
error has a principle) entering into their construction was a
forgetfulness of the fact, palpable to every man, that the need
of the lawyer is help for the future and untried cases, in dis-
tinction from a mere historical knowledge as to what points

1 Ante, § 1027. 2 Ante, § 1034.
62 * [737]
§ 1077 PRACTICE. [BOOK VI

have arisen heretofore, and how the points have been decided.
Of course, a general want of accuracy has had more’ or less
to do with the deaths of the dead; but the great principle of
corruption and death is the one just stated.

§ 1076. The reports of criminal cases are, during the
earlier English periods, generally found mingled with the
reports of civil causes. We have, however, the thin folio vol-
ume entitled “A Report of divers Cases in Pleas of the
Crown, adjudged and determined in the reign of King
Charles II., with Directions for Justices of the Peace and
others, collected by Sir John Kelyng,- Knight, late Lord
Chief Justice of His Majesty’s Court of King’s Bench.”
The collector of these cases died in 1671, and they were
originally published only in 1708, by, it is said, one of his
successors, Lord Holt.1_ The collection is quite valuable, and
it has the marks of greater accuracy than most of the old
posthumous reports.

§ 1077. Next, we have, of reports of Crown Cases alone,
the two volumes of Leach, never reprinted in the United
States; the standard fourth edition of which contains cases
extending from 1730 to 1815. Then we have six volumes
which have been reprinted in Philadelphia; one of which,
however, Jebb, is made up of Irish cases. The other five
volumes contain Russell & Ryan’s Crown Cases, 1799 to
1824, in-one volume ; Moody, two volumes, 1824 to 1844;
and Denison, two volumes, 1844 to 1852. The later Crown
Cases Reserved, not reprinted as yet in this country, are
Dearsly, Dearsly & Bell, and Bell, one volume each; with a
yet unfinished volume by Leigh & Cave. There is a volume by
Temple & Mew, not deemed of the regular series, covering
the years 1848 to 1851; but the cases here reported are to
be found also in the regular reports above mentioned. Two
12mo volumes of “Cases determined on the Crown Side of
the Northern Circuit,” by Lewin, 1822 to 1838, are of some
value as containing short notes of points ruled chiefly by
single judges. Then there is a yet unfinished series, by
Cox, of “Reports of Cases in Criminal Law argued and

1 Wallace Reporters, 3d ed. 209; Foster, 204.
[738] ,
CHAP. LIX. ] SUGGESTIONS, ETC. § 1081

determined in all the courts in England and Treland,” ex-
tending down from the year 1843, and now Gneberiue nine
volumes, and some parts of a tenth. These volumes contain
all classes of criminal cases, including many which were de-
cided by a single judge.

§ 1078. These are the principal reporters who have given
us criminal causes alone. But through the common-law
reports, and especially through the reports of Nisi Prius
Casés, many criminal ones are found interspersed with the
civil. In the Irish common-law reports also, criminal cases
are given, interspersed with civil.

§ 1079. In the United States, it is rare that any book of
reports is published containing criminal causes alone; but
generally these are printed mingled with the other cases at
the common law. The few exceptions are merely of local
interest, and they are known to the profession in the respect-
ive States. The only current series of reports of this sort is
the one in New York by Parker.

§ 1080. It would serve no useful end to mention, among
text books, such as have substantially faded from view, and
essays not of a practical sort. Coke, Hale, and Hawkins
are noticed briefly in the work on the Criminal Law. The
work of Lord Hale is entitled “The History of the Pleas of
the Crown.” It was published from his manuscript a con-
siderable time after his death, and it lacks the completeness,
the compactness, and the finish which the.very eminent author
would doubtless have given it had it been published by him-
self in his lifetime. Still it is of the highest value as con-
taining a very considerable body of law, as distinguished
from mere points ;? mingled, however, as most statements of
law are, with statements of points which illustrate the law.
This work, in its scope, is imperfect, since it treats only of
treasons and felonies, not of misdemeanors. :

§ 1081. The fact last mentioned is the one which mainly
prompted Hawkins to write his excellent “Pleas of the
Crown.” Coming after Hale, he stretches his researches
back into the old law, and downward well into the new. His

1 Crim. Law, I. § 41. 2 Ante, § 1078.
[7389]
§ 1085 PRACTICE. [BOOK VI.

work is not of higher authority than that of Hale, and per-
haps by those judges who pay special deference to what comes
from under the judicial robe, its authority may not be
deemed so high; but, in intrinsic merit, and in practical
adaptation tobe useful, it is unsurpassed among the old
books of the law. It renders unnecessary any consultation
of the Year Books, as to criminal matters; and, indeed, it
presents in almost perfect outline and color the olden glories
of the English criminal jurisprudence, while in the very act
of blending with the new. This book contains, not meré
points, but also law.

§ 1082. There are no other treatises on the criminal law
of reputation so high as those of Hale and Hawkins. There
is, by Sir Michael Foster, a book entitled “‘ A Report of some
Proceedings on the Commission for the Trial of the Rebels in
the year 1746, in the county of Surry, and of other Crown
Cases; to which are added Discourses upon a few Branches
of the Crown Law.” The preface to the first edition is dated
in 1762. There were two subsequent editions by Michael
Dodson. This is a valuable book; but, as the reader sees, it
is incomplete as a treatise. Nor, though the reputation of
the Discourses is great, are they of the very highest order.

§ 1083. East’s Pleas of the Crown, published in London
in 1803, and reprinted in Philadelphia in 1806, is a work
which has always stood high. It contains many manuscript
cases, — the larger part of which, however, appear more fully
in the later editions of Leach, —giving the work a sort of
permanent value, if it had no higher merit. But its merits of
the higher sort are considerable. It is in two volumes.

§ 1084. In Criminal Pleading, Starkie’s Treatise, in two
thin volumes, the second being occupied mainly with prece-
dents, has an established value. It is pretty accurate, though
not quite free from errors, and it contains considerable law
in connection with its law points.

§ 1085. Chitty’s Criminal Law is very familiar to the pro-
fession in this country. The second and last London edition
was published by the author in 1826, in three volumes, the

1 Ante, § 545, note.
[740]
CHAP. LIx.] SUGGESTIONS, ETC. § 1088

first having been in four; and it has been since issued in at
least five successive editions in the United States. It isa
very good compendium of that part of the criminal law which
pertains to the procedure, and is particularly useful for its
many forms of the indictment. It has no scientific value of
special consequence ; yet it gives us some law mingled with
its law points.

§ 1086. There is an Irish work, by Gabbett, which, though
it was perhaps never cited in any Irish or English case, is
often cited in opinions by American judges, and is a work of
considerable merit of a particular sort. It contains, in very
good style, a statement of the common, with some of the
statutory law of crimes, as drawn out from the works of pre-
ceding and standard authors. And it is remarkable that an
author should have done so well in this direction (proceeding,
through two large volumes, with unfoldings both of the law
and the procedure), without, on a single page or in a single
line, so far as can be discovered, drawing, from this hard
subject, with the flint of his own mind, one spark of original
light, or emitting one ray of legal genius. The first volume
was published in 1838; the second, in 1848.

§ 1087. Archbold’s work on Pleading and Evidence in
Criminal Cases, which, in England, has reached the fifteenth
edition, has been séveral times reprinted in the. United States.
All the later English editions have passed through the hands
of other persons as editors, and the editing has been very
well executed. Itisin one volume. It is a sort of practical
manual, containing forms interspersed with statements of
law-points drawn from the cases and from the English stat-
utes. As such, it is excellent; and, indeed, it is not entirely
destitute, though nearly so, of higher merits.

§ 1088. In 1852, Mr Archbold wrote and published a work
apparently not quite so large as this, entitled “The New
System of Criminal Procedure, Pleading, and Evidence in
Indictable Cases, as founded on Lord Campbell’s Act, 14 &
15 Vict. c. 100, and other recent Statutes; with New Forms
of Indictments, and Evidence.” This work has never gone
into a second edition in England; but it illustrates, perhaps,

[741]
a

§ 1091 PRACTICE. "Took vi
the interest which the profession in the United States take in
a system of criminal procedure which is peculiar to England,
having never been adopted with us, that two successive edi-
tions of this work have been published in New York, and
appear to have been well patronized. The first edition was
in three volumes ; containing, in addition to the text, which
was a reprint of this book, a great deal of other matter, in-
serted in the form of notes. The book is known, with us, as
Waterman’s Archbold. The first edition was published as
the “sixth edition,” in 1853. The second edition, in two vol-
umes, published as the “seventh edition,” appeared in 1860.
‘Perhaps the explanation is, that, in 1846, Mr. Archbold’s
other work was republished as being, what it probably was,
the “fifth American, from the tenth London edition”; and
that more or less of this other work was put into the notes.

§ 1089. Russell on Crimes is a work familiar also to the
American profession. Two editions were published in Eng-
land by the author, the second in 1826. Since then, two
more editions have there appeared, under the editorship of
Mr. Greaves, who has brought ample qualifications to the
task. The work, with the exception of the last edition, is
in two volumes. The last isin three. The various editions,
with the exception of the last, have been reprinted in the
United States. The last American reprint purports to be,
what it probably is, the “seventh American, from the third
London edition.” It is dated Philadelphia, 1853. Some
notes have been added by successive American editors. This
work contains some manuscript cases; and, although it is not
a work of the very highest order, it is quite creditable, and
receives, what it merits, respect.

§ 1090. There are no other English works which it is
deemed best to specify; though there are some, both earlier
and later than these, not quite without merit; and, indeed, as
respects the mere question of merit, some which stand higher
than some of those which are before mentioned. But the
reader will be able to find these works by the help of Law
Catalogues.

§ 1091. Coming to the United States, we have some works
[742]
CHAP. LIX. ] SUGGESTIONS, ETC. § 1094

written for local use in particular States, not necessary to be
named here, since they are known to the practitioners in
those States. In 1847, Judge Lewis’s “ Abridgment of the
Criminal Law of the United States” was published in Phila-
delphia. It is in one volume of the usual law size, and con-
tains, as the author well says, “much useful matter, drawn
from a great variety of sources, not readily accessible to
every practitioner.” It was an effort, however, too hasty to
be permanent; and, though the book has become scarce, and
not easy to be obtained, it has never been printed in a second
edition.,

§ 1092. Wharton’s Criminal Law is more known than
Judge Lewis’s. The first edition was published in 1846, and
the fifth and last in 1861. In the first four editions, it was
in one volume; in the fifth, it is in two volumes. The work
contains a pretty extended collection of law-points, taken
both from the English and American reports, and it has been
quite successful in supplying a want. There appears no reason
why its life among law books should not be considerably fur-
ther prolonged; though, as the reader will readily perceive,
it is of that class, which, for reasons shown in the fore-
going sections, have their days limited by causes which it is
not necessary further to specify here. If the author should
give it a thorough revision, embracing a fresh examination of
all his authorities, he would, by increasing its accuracy, extend
somewhat the length of its life. While professional views
concerning books remain unmodified among us, works of this
sort will be in demand; and, should this one decay, there
would be call to have its place supplied by another.

§ 10938. Bennett & Heard’s “Selection of leading cases
in Criminal Law, with notes,” published at Boston in 1856,
in two volumes, is a work of a well. known sort, and very
well executed for the kind. “

§ 1094. There are two recent books of Precedents ; Whar-
ton’s, the second edition of which was published in 1857 ;
and Train & Heard’s, published in 1855. The former of
these works is the larger and fuller; the latter is the more
accurate. A book of precedents is different from one on the

[743]
§ 1095 PRACTICE. [BOOK VI.

law itself; and, though there is properly a demand for more
books than one on any leading subject of the law, this is not
exactly so in the department of precedents. And, when new
editions of these works are called for, if Mr. Wharton should
not find it consistent with other engagements to edit his own
book, Mr. Heard might do an excellent service by making
the two books into one.

§ 1095. Bishop’s Criminal Law, to which this work is sup-
plemental, is in two volumes. The first volume was origi-
nally published in 1856, and the second in 1858. In a second
edition, the two volumes appeared also separate, and at
separate times. But in 1865 a third edition was issued of
the two volumes together, the order of the discussion was
somewhat changed,.and the sections were renumbered. The
work is written on a plan believed to be more practically use-
ful, and more permanently acceptable to the profession, than
the works of some preceding authors. It, with the present
work, will have a manhood following its more infantile days ;
but how vigorous the manhood, or how long the life, this is
not the place to conjecture. Containing many things which
will be more appreciated by and by than now, these works
contain also many which are more appreciated now than they
will be in the future. Thus they would hold out, as far as
possible, two friendly hands; the one to that which is, and
the other to that which is to be.

[744]

END OF VOL. I.

 

, Cambridge: Printed by Welch, Bigelow, & Co.