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 CASES 
 
 ON 
 
 CRIMINAL LAW 
 
 SELECTED FROM DECISIONS OF 
 
 ENGLISH AND AMERICAN COURTS 
 
 BY 
 
 WILLIAM E. MIKELL, 
 
 PROFESSOR OF LAW IN THE UNIVERSITY OF PENNSYLVANIA 
 
 AMERICAN CASEBOOK SERIES 
 JAMES BROWN SCOTT 
 
 GENERAL EDITOR 
 
 ST. PAUL 
 
 WEST PUBLISHING COMPANY 
 1908
 
 Copyright, 1908, 
 
 BY 
 
 WEST PUBLISHING COMPANY 
 (Mik. Cr. L.) 
 
 T
 
 at 
 
 TO 
 
 My Class-Mates 
 
 Archibald Gilchrist Singletary and Frank Barron Grier 
 
 The one learned in the Civil the other in the Common Law 
 
 In appreciation of a long and valued friendship 
 
 (iii)* 
 
 567328
 
 THE AMERICAN CASEBOOK 
 
 SERIES. 
 
 For years past the science of law has been taught by lectures, the 
 use of text-books and more recently by the detailed study, in the 
 class-room, of selected cases. 
 
 Each method has its advocates, but it is generally agreed that the 
 lecture system should be discarded because in it the lecturer does 
 the work and the student is either a willing receptacle or offers a 
 passive resistance. It is not too much to say that the lecture system 
 is doomed. 
 
 Instruction by the means of text-books as a supplement or sub- 
 stitute for the formal lecture has made its formal entry into the educa- 
 tional world and obtains widely ; but the system is faulty and must pass 
 away as the exclusive means of studying and teaching law. It is an 
 improvement on the formal lecture in that the student works, but if it 
 cannot be said that he works to no purpose, it is a fact that he works 
 from the wrong end. The rule is learned without the reason, or both 
 rule and reason are stated in the abstract as the resultant rather than 
 as the process. If we forget the rule we cannot solve the problem ; if 
 we have learned to solve the problem it is a simple matter to formulate 
 a rule of our own. The text-book method may strengthen the mem- 
 ory; it may not train the mind, nor does it necessarily strengthen it. 
 A text, if it be short, is at best a summary, and a summary presup- 
 suposes previous knowledge. 
 
 If, however, law be considered as a science rather than a collection 
 of arbitrary rules and regulations, it follows that it should be studied 
 as a science. Thus to state the problem is to solve it; the laboratory 
 method has displaced the lecture, and the text yields to the actual 
 experiment. The law reports are in more senses than one books of 
 experiments, and, by studying the actual case, the student co-operates 
 with the judge and works out the conclusion however complicated 
 the facts or the principles involved. A study of cases arranged his- 
 torically develops the knowledge of the law, and each case is seen to 
 be not an isolated fact but a necessary link in the chain of develop- 
 ment. The study of the case is clearly the most practical method, 
 for the student already does in his undergraduate days what he must 
 do all his life; it is curiously the most theoretical and the most prac- 
 tical. For a discussion of the cate in all its parts develops analysis, 
 the comparison of many cases establishes a general principle, and 
 
 (v)
 
 VI PREFACE. 
 
 the arrangement and classification of principles dealing with a sub- 
 ject make the law on that subject. 
 
 In this way training and knowledge, the means and the end of 
 legal study, go hand and hand. 
 
 The obvious advantages of the study of law by means of selected 
 cases make its universal adoption a mere question of time. 
 
 The only serious objections made to the case method are that it takes 
 too much time to give a student the requisite knowledge of the sub- 
 ject in this way and that the system loses sight of the difference be- 
 tween the preparation of the student and the lifelong training of the 
 lawyer. Many collections of cases seem open to these objections, 
 for they are so bulky that it is impossible to cover a particular sub- 
 ject with them in the time ordinarily allotted to it in the class. In 
 this way the student discusses only a part of a subject. His knowl- 
 edge is thorough as far as it goes, but it is incomplete and frag- 
 mentary. The knowledge of the subject as a whole is deliberately 
 sacrificed to training in a part of the subject. 
 
 It would seem axiomatic that the size of the casebook should cor- 
 respond in general to the amount of time at the disposal of instructor 
 and student. As the time element is, in most cases, a nonexpansive 
 quantity, it necessarily follows that, if only a half to two-thirds of the 
 cases in the present collections can be discussed in class, the pres- 
 ent casebooks are a third to a half too long. From a purely practical 
 and economic standpoint it is a mistake to ask students to pay for" 
 1,200 pages when they can only use 600, and it must be remembered 
 that in many schools, and with many students in all schools, the mat- 
 ter of the cost of casebooks is important. Therefore, for purely 
 practical reasons, it is believed that there is a demand for casebooks 
 physically adapted and intended for use as a whole in the class-room. 
 
 But aside from this, as has been said, the existing plan sacrifices 
 knowledge to training. It is not denied that training is important, 
 nor that for a law student, considering the small amount of actual 
 knowledge the school can hope to give him in comparison with the 
 vast and daily growing body of the law, it is more important than 
 mere knowledge. It is, however, confidently asserted that knowledge 
 is, after all, not unimportant, and that, in the inevitable compromise 
 between training and knowledge, the present casebooks not only de- 
 vote too little attention relatively to the inculcation of knowledge, 
 but that they sacrifice unnecessarily knowledge to training. It is be- 
 lieved that a greater effort should be made to cover the general prin- 
 ciples of a given subject in the time allotted, even at the expense of 
 a considerable sacrifice of detail. But in this proposed readjustment 
 of the means to the end, tin- fundamental fact cannot be overlool ed 
 that law is a developing science and that its present can only be un- 
 derstood through the medium of its past. It is recognized as im 
 perative that a sufficient number of < given under each topic
 
 PREFACE. VU 
 
 treated to afford a basis for comparison and discrimination ; to show 
 the development of the law of the particular topic under discussion ; 
 and to afford the mental training for which the case system neces- 
 sarily stands. To take a familiar illustration: If it is proposed to 
 include in a casebook on Criminal Law one case on abortion, one on 
 libel, two on perjury, one on larceny from an office, and if in order to 
 do this it is necessary to limit the number of cases on specific intent to 
 such a degree as to leave too few on this topic to develop it fully 
 and to furnish the student with training, then the subjects of abor- 
 tion, libel, perjury, and larceny from an office should be wholly omit- 
 ted. The student must needs acquire an adequate knowledge of these 
 subjects, but the training already had in the underlying principles of 
 criminal law will render the acquisition of this knowledge compara- 
 tively easy. The exercise of a wise discretion would treat fundamen- 
 tals thoroughly: principle should not yield to detail. 
 
 Impressed by the excellence of the case system as a means of legal 
 education, but convinced that no satisfactory adjustment of the con- 
 flict between training and knowledge under existing time restrictions 
 has yet been found, the General Editor takes pleasure in announcing 
 a series of scholarly casebooks, prepared with special reference to 
 the needs and limitations of the class-room, on the fundamental sub- 
 jects of legal education, which, through a judicious rearrangement 
 of emphasis, shall provide adequate training combined with a thor- 
 ough knowledge of the general principles of the subject. The collec- 
 tion will develop the law historically and scientifically ; English cases 
 will give the origin and development of the law in England; Ameri- 
 can cases will trace its expansion and modification in America; notes 
 and annotations will suggest phases omitted in the printed case. 
 Cumulative references will be avoided, for the footnote may not hope 
 to rival the digest. 
 
 The law will thus be presented as an organic growth, and the neces- 
 sary connection between the past and the present will be obvious. 
 
 The importance and difficulty of the subject as well as the time that 
 can properly be devoted to it will be carefully considered so that each 
 book may be completed within the time allotted to the particular sub- 
 ject. 
 
 It is equally obvious that some subjects are treated at too great 
 length, and that a less important subject demands briefer treatment. 
 A small book for a small subject. 
 
 In this way it will be alike possible for teacher and class to com- 
 plete each book instead of skimming it or neglecting whole sections; 
 and more subjects may be elected by the student if presented in short- 
 er form based upon the relative importance of the subject and the 
 time allotted to its mastery. 
 
 Training and knowledge go hand in hand, and Training and Knowl- 
 edge are the keynotes of the series.
 
 Vlll PREFACE. 
 
 If it be granted that all, or nearly all, the studies required for ad- 
 mission to the bar should be studied in course by every student — and 
 the soundness of this contention can hardly be seriously doubted — it 
 follows necessarily that the preparation and publication of collections 
 of cases exactly adapted to the purpose would be a genuine and by 
 no means unimportant service to the cause of legal education. And 
 this result can best be obtained by the preparation of a systematic 
 series of casebooks constructed upon a uniform plan under the super- 
 vision of an editor in chief. 
 
 For the basis of calculation the hour has been taken as the unit. The 
 General Editor's personal experience, supplemented by the experience 
 of others in the class-room, leads to the belief that approximately a 
 book of 400 pages may be covered by the average student in half a 
 year of two hours a week ; that a book of 600 pages may be discussed 
 in class in three hours for half a year ; that a book of 800 pages may 
 be completed by the student in two hours a week throughout the year ; 
 and a class may reasonably hope to master a volume of 1,000 pages 
 in a year of three hours a week. The general rule will be subject to 
 some modifications in connection with particular topics on due con- 
 sideration of their relative importance and difficulty, and the time 
 ordinarily allotted to them in the law school curriculum. 
 
 The following subjects are deemed essential in that a knowledge of 
 them (with the exception of International Law and General Juris- 
 prudence) is universally required for admission to the bar: 
 
 Administrative Law. Insurance. 
 
 Agency. International Law. 
 
 Bills and Notes. Jurisprudence. 
 
 Carriers. Mortgages. 
 
 Contracts. Partnership. 
 
 Corporations. Personal Property, including 
 
 Constitutional Law. the Law of Bailment. 
 
 Criminal Law. t> i t» I lst Year. 
 
 ^ . . , ^ , Real Propertv. < 2d " 
 
 Criminal Procedure. /3d 
 
 Common-Law Pleading. Public Corporations. 
 
 Conflict of Laws. Quasi Contracts. 
 
 Code Pleading. Sales. 
 
 Damages. Suretyship. 
 
 Domestic Relations. Torts. 
 
 Equity. Trusts. 
 
 Equity Pleading. Wills and Administration. 
 
 Evidence. 
 
 International Law is included in the list of essentials from its in- 
 trinsic importance in our system of law. As its principles arc simple 
 in comparison with municipal law, as their application is less technical,
 
 PREFACE. IX 
 
 and as the cases are generally interesting-, it is thought that the book 
 may be larger than otherwise would be the case. 
 
 As an introduction to the series a book of Selections on General 
 Jurisprudence of about 500 pages is deemed essential to completeness. 
 
 The preparation of the casebooks has been intrusted to experienced 
 and well-known teachers of the various subjects included, so that the 
 experience of the class-room and the needs of the students will fur- 
 nish a sound basis of selection. 
 
 While a further list is contemplated of usual but relatively less im- 
 portant subjects as tested by the requirements for admission to the 
 bar, no announcement of them is made at present. 
 
 The following gentlemen of standing and repute in the profession 
 are at present actively engaged in the preparation of the various case- 
 books on the indicated subjects: 
 
 George W. Kirchwey, Dean of the Columbia University, School of 
 Law. Subject, Real Property. 
 
 Nathan Abbott, Professor of Law, Columbia University. (Formerly 
 Dean of the Stanford University Law School.) Subject, Per- 
 sonal Property. 
 
 Frank Irvine, Dean of the Cornell University School of Law. Sub- 
 ject, Evidence. 
 
 Harry S. Richards, Dean of the University of Wisconsin School of 
 
 Law. Subject, Corporations. 
 James Parker Hall, Dean of the University of Chicago School of Law. 
 
 Subject, Constitutional Law. 
 William R. Vance, Dean of the George Washington University Law 
 
 School. Subject, Insurance. 
 
 Charles M. Hepburn, Professor of Law, University of Indiana. Sub- 
 ject, Torts. 
 
 William E. Mikell, Professor of Law, University of Pennsylvania. 
 Subjects, Criminal Law and Criminal Procedure. 
 
 George P. Costigan, Jr., Dean of the University of Nebraska School 
 of Law. Subject, Wills and Administration. 
 
 Floyd R. Mechem, Professor of Law, Chicago University. Subject, 
 Damages. (Co-author with Barry Gilbert.) 
 
 Barry Gilbert, Professor of Law, University of Illinois. Subject, 
 Damages. (Co-author with Floyd R. Mechem.) 
 
 Thaddeus D. Kenneson, Professor of Law, University of New York. 
 Subject, Trusts. 
 
 Charles Thaddeus Terry, Professor of Law, Columbia University. 
 Subject, Contracts.
 
 X PREFACE. 
 
 Albert M. Kales, Professor of Law, Northwestern University. Sub- 
 ject, Persons. 
 
 Edwin C. Goddard, Professor of Law, University of Michigan. Sub- 
 ject, Agency. 
 
 Howard L. Smith, Professor of Law, University of Wisconsin. Sub- 
 ject, Bills and Notes. 
 
 Edward S. Thurston, Professor of Law, George Washington Univer- 
 sity. Subject, Quasi Contracts. 
 
 Crawford D. Hening, Professor of Law, University of Pennsylvania. 
 Subject, Suretyship. 
 
 Clarke B. Whittier, Professor of Law, University of Chicago. Sub- 
 ject, Pleading. 
 
 Eugene A. Gilmore, Professor of Law, University of Wisconsin. 
 Subject, Partnership. 
 
 Joshua R. Clark, Jr., Assistant Professor of Law, George Washington 
 University. Subject, Mortgages. 
 
 Ernst Freund, Professor of Law, University of Chicago. Subject, 
 Administrative Law. 
 
 Frederick Green, Professor of Law, University of Illinois. Subject, 
 Carriers. 
 
 Ernest G. Lorenzen, Professor of Law, George Washington Univer- 
 itl. Subject, Conflict of Laws. 
 
 William C. Dennis. Professor of Law, George Washington University. 
 Subject, Public Corporations. 
 
 James Brown Scott, Professor of Law, George Washington Univer- 
 sity ; formerly Professor of Law, Columbia University, New 
 York City. Subjects, International Law; General Jurisprudence; 
 Equity. 
 
 The following books of the Series are now published, or in press: 
 Partnership, by Eugene A. Gilmore, Professor of Law, University of 
 Wiscon in; Criminal Law, by Wm. E. Mikell, Professor of Law, 
 University of Pennsylvania; Damages, by Barry Gilbert, Professor of 
 Law, University of Illinois; Conflict of Laws, by Ernest G. Lorenzen, 
 Prof' "i of Law, George Washington University; Trusts, by Thad- 
 D. Kenneson, Professor of Law, University of New York. 
 
 Jami-s Brown Scott, 
 General Editor. 
 Washington, d. c, November iu, 1908.
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 Sources of the Criminal Law. 
 Section Pa s e 
 
 1. Criminal Law of the Federal Government 
 
 2. Criminal Law of the States 4 
 
 CHAPTER II. 
 
 The Elements of "Crime. 
 
 1. Union of Intent and Act 1- 
 
 2. Offenses against Public Justice and Authority 13 
 
 3. Offenses against the Law of Nations IS 
 
 4. Offenses against Religion 20 
 
 5. Offenses against Public Peace 20 
 
 6. Offenses against Public Health 20 
 
 7. Offenses against Trade 27 
 
 8. Offenses against Public Decency , 30 
 
 9. Effect of Consent, Condonation, etc 30 
 
 I. Consent of the Person Injured 30 
 
 II. Consent of the State 40 
 
 III. Negligence of the Person Injure'd 49 
 
 IV. Guilt of the Person Injured 51 
 
 V. Condonation of the Person Injured 53 
 
 VI. Condonation of the State 5G 
 
 VII. Custom 57 
 
 10. Effect of Coercion 59 
 
 I. Coverture 59 
 
 II. Command 62 
 
 III. Necessity 6 ~ 
 
 CHAPTER III. 
 
 The Criminal Intent. 
 
 1. General Principles 73 
 
 2. Distinction between Intent and Motive 75 
 
 3. Constructive Intent 81 
 
 4. Specific Intent 92 
 
 5. Intent in Statutory Crimes 97 
 
 6. Concurrence of Several Intents H4 
 
 CHAPTER IV. 
 
 Negligence as Supplying Intent 11" 
 
 Mik.Cr.L. (xi)
 
 XU TABLE OF CONTENTS. 
 
 CHAPTER V. 
 Intent as Affected by Conditions. 
 
 Section Page 
 
 1. Ignorance or Mistake of Law 132 
 
 2. Ignorance or Mistake of Fact 137 
 
 3. Infancy 143 
 
 4. Insanity 145 
 
 5. Intoxication 169 
 
 6. Incorporation 1S2 
 
 CHAPTER VI. 
 The Cbiminaii Act. 
 
 1. Concurrence of Act and Intent 1SG 
 
 2. Sufficiency of the Act 1SS 
 
 I. Solicitation 1SS 
 
 II. Attempt 192 
 
 III. Conspiracy 204 
 
 3. Authorized Acts 224 
 
 I. Acts in Furtherance of Public Justice 224 
 
 II. Acts in Furtherance of Domestic Authority 229 
 
 III. Acts in Prevention of Crime 2.".4 
 
 IV. Acts in Self-Defense 238 
 
 V. Acts in Defense of Others 252 
 
 VI. Acts in Defense of Property 256 
 
 VII. Acts in Defense of Dwelling 257 
 
 CHAPTER VII. 
 Combinations of Persons in Crime. 
 
 1. Principal in the First Degree 2r,2 
 
 2. Principal in the Second Degree 2G6 
 
 3. Accessory Before the Fact 278 
 
 4. Accessory After the Fact 283 
 
 5. Principal and Agent 2SS 
 
 CHAPTER VIII. 
 Assault, Battery and Mayhem 291 
 
 CHAPTER IX. 
 False Imprisonment and Kidnapping 315 
 
 CHAPTER X. 
 Abortion 317 
 
 CHAPTER XI. 
 Rape 319
 
 TABLE OF CONTENTS. XI U 
 
 CHAPTER XII. 
 
 Homicide. 
 Section Pa se 
 
 1. Geneial Principles 328 
 
 I, The Several Kinds of Homicide 328 
 
 II. The Subject of Homicide 329 
 
 III. The Act Causing Death ? 331 
 
 2. Murder 350 
 
 3. Statutory Degrees of Murder 360 
 
 4. Voluntary Manslaughter 367 
 
 CHAPTER XIII. 
 
 Larceny. 
 
 1. Property the Subject of Larceny 386 
 
 2. The Ownership of the Property 400 
 
 3. The Caption and Asportation 409 
 
 4. The Trespass 416 
 
 I. Possession Necessary for Trespass to Attach 416 
 
 II. Trespass in Taking Possession 426 
 
 III. Trespass in the Appropriation of Lost Goods 431 
 
 IV. Trespass in the Appropriation of Goods Delivered by the Owner 441 
 
 A. When Delivery Gives Possession 441 
 
 B. Distinction between Possession and Custody 463 
 
 C. When Delivery Vests Property 470 
 
 5. The Animus Furandi 486 
 
 6. Aggravated Larceny ■ 49G 
 
 I. Grand Larceny 49 ° 
 
 II. Larceny from Particular Places 499 
 
 III. Robbery 5°° 
 
 CHAPTER XIV. 
 Embezzlement 505 
 
 CHAPTER XV. 
 Obtaining Property by Cheats and False Pretenses. 
 
 1. General Principles 510 
 
 2. The Property Obtained 511 
 
 3. The Interest Acquired 512 
 
 4. The Pretense 513 
 
 5. Effectiveness of the Pretense 526 
 
 6. The Intent 534 
 
 CHAPTER XVI. 
 
 Receiving Stolen Property. 
 
 1. The Subject of the Crime 537 
 
 2. The Act of Receiving 545 
 
 3. The Guilty Knowledge .' 548 
 
 4. The Intent 549
 
 XI? TABLE OF CONTENTS. 
 
 CHAPTER XVII. 
 
 Burglary. 
 Section Page 
 
 1. The Breaking 553 
 
 2. The Entry 558 
 
 3. The Place 561 
 
 CHAPTER XVIII. 
 Arson 56S 
 
 CHAPTER XIX. 
 
 Forgery. 
 
 1. The Instrument 572 
 
 2. The Act by which the Forgery is Committed 577 
 
 3. The Intent 582 
 
 CHAPTER XX. 
 
 L/IBEL 585 
 
 CHAPTER XXI. 
 
 Perjury 592 
 
 Index .' 599
 
 TABLE OF CASES. 
 
 [CASKS CITED IN FOOTNOTES ABE INDICATED BY ITALICS. WHEBE SMALL CAPITALS 
 ABE USED, THE CASE IS BEFEERED TO IN TEXT.] 
 
 Page 
 
 Allen v. State 42 
 
 Anderson v. Commonwealth 33 
 
 Anonymous 13, 143. 182, 238, 380, 
 
 400, 402, 405, 4G3, 486, 561, 562 
 
 Arden v. State 594 
 
 Bacon's Case 188 
 
 Bain v. State 67 
 
 Banson v. Ossley 267 
 
 Bartell v. State 39 
 
 Bell v. State 30 
 
 Beverley's Case 145, 369 
 
 Bibithe's Case 282 
 
 Bird v. Jones 316 
 
 Boyd v. State 231 
 
 Bradley v. His Wife 229 
 
 Brewer v. State 66 
 
 Brooks v. State 438 
 
 Buckner's Case 370 
 
 Bush v. Commonwealth 343 
 
 Butleb v. People 346 
 
 Butler's Case 430 
 
 Canter v. State 512 
 
 Carrier's Case 443 
 
 Carroll v. State 259 
 
 Carver v. Pierce 388 
 
 Chambless v. State 299 
 
 Champer v. State 37 
 
 Chapman v. State 296 
 
 Cherry's Case 409 
 
 City of Evanston v. Myers 47 
 
 Clark v. State 196 
 
 Commonwealth v. Adams 8S 
 
 Commonwealth v. Baldwin 578 
 
 Commonwealth v. Blanding 5S7 
 
 Commonwealth v. Campbell.... 346 
 
 Commonwealth v. Carr 54 
 
 Commonwealth v. 
 Commonwealth v. 
 
 Cramer 23 
 
 Drum 361 
 
 Commonwealth v. Eisenhower 
 
 345 
 
 Commonwealth v. Haines 21 
 
 Commonwealth v. Hutchinson . . 190 
 
 Commonwealth v. McHale 14 
 
 Commonwealth v. Moore 61, 350 
 
 Commonwealth v. Mosler 150 
 
 Convmomvealth v. Mosler 375 
 
 Commonwealth v. Ryan 426 
 
 Page 
 
 Commonwealth v. St. John 5G 
 
 Commonwealth v. Saukey 581 
 
 Commonwealth v. Sheriff 208 
 
 Commonwealth v. Steimling 397 
 
 Commonwealth v. Stevens 288 
 
 Commonwealth v. White 426 
 
 Cook's Case 258 
 
 Cote v. Murphy 211 
 
 Cummings v. Commonwealth 415 
 
 Custodes v. Gwinn 592 
 
 Cutter v. State 135 
 
 Davies' Case 501 
 
 Debbs v. State 58 
 
 De Libellis Famosis' Case 585 
 
 Designy's Case 316 
 
 Dill v. State 224 
 
 Don Moran v. People 320 
 
 D. Williams' Case 369 
 
 Eversole v. Commonwealth 261 
 
 Fain v. Commomcealth 122 
 
 Fisherman's Case 486 
 
 Flanigan v. People 173 
 
 Floyd v. State 239 
 
 Ford v. City of Denver 46 
 
 Ford's Case 259 
 
 Foster v. Commomcealth 204 
 
 Foster v. People 310 
 
 Fowleb v. Padget 104 
 
 Frank v. State 548 
 
 Gettinger v. State 415, 492 
 
 Giles v. State 586 
 
 Godfrey v. State 143 
 
 Goodall v. State 239 
 
 Gore's Case 332 
 
 Grey's Case 230 
 
 Griffith's Case 266 
 
 Grimm v. United States 48 
 
 Grisham & Lip an v. State 10 
 
 Guardians of the Poor v. Greene . 4 
 
 Gurneis' Case 593 
 
 Harman's Case 501 
 
 Haynes' Case 400 
 
 Haywood v. State ::st 
 
 Mik.Ce.L. 
 
 (xv)
 
 XVI 
 
 TABLE OF CASES. 
 
 Page 
 
 Henry v. State 402 
 
 Hill v. State 503 
 
 Hinchcliffe's Case 256 
 
 Hoskins v. Tarrence 3S9 
 
 Hotema v. United States 148 
 
 Howell's Case 234 
 
 Hon v. State 240 
 
 Hughes' Case 502 
 
 Hull's Case H~ 
 
 I sham v. State 81 
 
 James v. Commonwealth 6 
 
 Keenan v. Commonwealth 170 
 
 Knight's Case US 
 
 Langley v. Bradshaw 446 
 
 Lawrence v. State 57. 440 
 
 Le Motfs Case 557 
 
 Leonin's Case 225 
 
 T.kvkts' Case 74 
 
 Lowe v. State 156 
 
 McCoro v. People 52 
 
 McNaghten's Case 145 
 
 Marshall's Case 169 
 
 Memorandum 62 
 
 Mercersmith v. State 273 
 
 Merry v. Green 431 
 
 Miers v. State 250 
 
 Mills v. Commonwealth 317 
 
 Milton v. State 1S6 
 
 Mitchtun v. State 420 
 
 Morrison v. Commonwealth 254 
 
 Pennsylvania v. Campbell 417 
 
 Pennsylvania v. Honeyman 352 
 
 Pennsylvania v. Morrison 13 
 
 People v. Bird 527 
 
 People v. Button 247 
 
 P< ople v. Call 467 
 
 /'. ople v. Cogdell 430 
 
 People v. Cummlngs 511 
 
 People v. Dnpree 554 
 
 People v. Gardner 198 
 
 People v. Jaffe 198 
 
 People v. La wis 
 
 340 
 
 le v. Martin 51 
 
 tie v. Matin r 221 
 
 People v. Montarlal 469 
 
 ile v. Murray 102 
 
 People v. Wheeler 523 
 
 People v. Whit. man 531 
 
 pie v Wiley 560 
 
 Pew's Case 852 
 
 Plnkard" v. stair. is.s 
 
 Qulnn v. People r,c,: y , 
 
 na v. Ardley 52.? 
 
 Ina v. Aston 506 
 
 Reglna v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v 
 Regina v. 
 Regina 
 Regina 
 Regina 
 Regina 
 Regina 
 Regina 
 Regina 
 Regina V. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 
 Regina v. 
 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 l,v ina v. 
 Regina v. 
 Regina v. 
 Regina v. 
 
 v. 
 
 V. 
 V. 
 V. 
 V. 
 
 V. 
 
 V. 
 
 Paee 
 
 Bailey 495 
 
 Benge 339 
 
 Bennett 33S 
 
 Bryan 516 
 
 Butterneld 286 
 
 Button 530 
 
 Clarence 299 
 
 Coney 37 
 
 Cotesworth 309 
 
 Cruse 61 
 
 Culluin 507 
 
 Doddridge 94 
 
 Dudley & Stephens 70 
 
 English 526 
 
 Evans 443 
 
 Flattery 326 
 
 Foley 396 
 
 Franklin 86 
 
 Gardner 528 
 
 Godfrey 493 
 
 Greenwood 338 
 
 Gruncell 539 
 
 Hehir 453 
 
 Hodgson 583 
 
 Holloway 386 
 
 Horsey 355 
 
 Jeffries 265 
 
 . Johnson & Jones.... 42 
 
 Jones 465, 494, 510, 515 
 
 Kay 421 
 
 Kenny 405 
 
 Latimer 89 
 
 Lee 514 
 
 Loncbottom 49 
 
 McGrath 47S 
 
 Machekequonabe 138 
 
 Macleod 122 
 
 Mauley 262 
 
 March 292 
 
 Marriott 128 
 
 Masters 420 
 
 Matthews 18G 
 
 Mawgridge 367 
 
 Middleton 47S 
 
 Murphy 515 
 
 Naylor 535 
 
 O'Brien 558 
 
 O'Donnell 492 
 
 Packard S4 
 
 Pembliton 95 
 
 Pococfe 131 
 
 Prince 97 
 
 Prlvett 491 
 
 Reed 422 
 
 Reeves 426 
 
 Richards 490 
 
 Russell 571 
 
 Saward 468 
 
 Schmidt 539 
 
 Senior 77 
 
 Berne « 
 
 Bhiokle '•'• s ''
 
 TABLE OF CASES. 
 
 XV11 
 
 Pago 
 
 Regina v. Simpson 409 
 
 Regina v. Smith 574 
 
 Regina v. Stanton 322 
 
 Regina v. Stewart 470 
 
 Regina v. Stone 535 
 
 Regina v. Streeter 543 
 
 Regina v. Sutton 187 
 
 Regina v. Thomas 4f; 4 
 
 Regina v. Thurborn • • 434 
 
 Regina V. Tolson 73, 101 
 
 Regina v. Towers 335 
 
 Regina v. Townley 393 
 
 Regina v. Tracy 280 
 
 Regina v. Tyson 59G 
 
 Regina v. Wallis 412 
 
 Regina v. Watts 3S9 
 
 Regina v. West .. ; 337 
 
 Regina v. White 412 
 
 Regina v. Wiley 545 
 
 Regina v. Williams 61 
 
 Regina v. Williams 477 
 
 Regina v. Wilson 472 
 
 Regina v. Woodward 540 
 
 Reginald's Case 320 
 
 Respublica v. De Longchamps 18 
 
 Respublica v. MeCarty 65 
 
 Respublica v. Powell 27 
 
 Respublica v. Roberts 8 
 
 Resolution 501 
 
 Rex v. Rirdseye 498 
 
 Rex v. Brain 330 
 
 Rex v. Bramley 407 
 
 Rex v. Brazier 449 
 
 Rex v. Brice 555 
 
 Rex v. Bull 418 
 
 Rex v. Burton 118 
 
 Rex v. Bykerdike 207 
 
 Rex v. Cabbage 487 
 
 Rex v. Cooper 279 
 
 Rex v. Cowell 537 
 
 Rex v. Dade 203 
 
 Rex v. Darby 13 
 
 Rex v. Davis 549, 558 
 
 Rex v. Dingley 410 
 
 Rex v. Dixon 61 
 
 Rex v. Duffin 92 
 
 Rex v. Dyer 538 
 
 Rex v. Edward 502 
 
 Rex v. Garland 502 
 
 Rex v. Gill 309 
 
 Rex v. Gillow 115 
 
 Rex v. Gowen 570 
 
 Rex v. Gray 500 
 
 Rex v. Halloway 351 
 
 Rex v. Harris 503, 508 
 
 Rex v. Hickman 330 
 
 Rex v. Higgins 189 
 
 Rex v. Holt 93 
 
 Rex v. Hoxoell 450 
 
 Rex v. Huggins 334 
 
 Rex v. Hughes 59 
 
 Rex v. Hyams 553 
 
 Mik.Cr.L.— b 
 
 Page 
 
 Rex v. Jones 497 
 
 Rex v. Kelly 279 
 
 Rex v. Leigh 442 
 
 Rex v. Lewis 556 
 
 Rex v. Lockett 577 
 
 Rex v. Madox 440 
 
 Rex v. Meeres 441 
 
 Rex v. Nicholson 473 
 
 Rex v. Owen 499 
 
 Rex v. Paradice 404 
 
 Rex v. Phillips 486 
 
 Rex v. Regan 76 
 
 Rex v. Rew 333 
 
 Rex v. Robson 475 
 
 Rex v. Searing 387 
 
 Rex v. Semple 450 
 
 Rex v. Sheppard 5S2 
 
 Rex v. Smith 22, 505 
 
 Rex v. Snowley 500 
 
 Rex v. Spencer 513 
 
 Rex v. Sullens 419 
 
 Rex v. Summers 20 
 
 Rex v. Tayler 20 
 
 Rex v. Taylor 26, 500 
 
 Rex v. Teague 570 
 
 Rex v. Thomas 109 
 
 Rex v. Thurston 132 
 
 Rex v. Vantandillo 26 
 
 Rex v. Ward 572 
 
 Rex v. W. D 319 
 
 Rex v. Webb 489 
 
 Rex v. Westbeer 388 
 
 Rex v. Wheatly 28 
 
 Rex v. Williams 14, 114, 534 
 
 Rex v, Willis 408 
 
 Rex v. Wright 489 
 
 Riggs v. State 63 
 
 Rigmaidon's Case 119 
 
 Robert's Case 53, 283 
 
 Roberts' Case 238 
 
 Rogers v. State 181 
 
 Rowe v. United States 242 
 
 Rowe v. United States 245 
 
 Sarah Connolly's Case 59 
 
 Saunders' Case 281 
 
 Schmidt v. United States 75 
 
 Seiler v. People 61 
 
 Shannon v. Commonwealth 224 
 
 Sikes v. State 399 
 
 Simpson v. State 202 
 
 Sib Francis Blake Delaval, 
 
 Case of 34 
 
 Sir William Hawksworth 137 
 
 Smith v. State 315 
 
 Snell v. State 252 
 
 Speiden v. State 40 
 
 State v. Alexander 414 
 
 State v. Allen 270 
 
 State v. Beck 36 
 
 State v. Boyett 132 
 
 State v. Brown 365
 
 XV111 
 
 TABLE OF CASES. 
 
 Page 
 
 State v. Buchanan 204 
 
 State v. Caveness 548 
 
 State v. Crawford 559 
 
 State v. Currie 43 
 
 State v. Daniel 294 
 
 State v. Davis 2S3, 309 
 
 State v. Gardner 244 
 
 State v. Goff 71 
 
 State v. Greer 253 
 
 State v. Grugin 376 
 
 State v. Gut 49 
 
 Stare v. Haab 176 
 
 State v. Haines 327 
 
 State v. Hardie ll y 
 
 State v. Hattaway 593 
 
 State v. Hill 371 
 
 State v. Houston 61 
 
 State v. Hurley 193 
 
 State v. Jones 157 
 
 State v. Knight 152 
 
 State v. Levelle 359 
 
 State v. McCants 373 
 
 State v. McDonald 137 
 
 State v. Ma Foo 61 
 
 State v. Middleton 28 
 
 State v. Moore 560 
 
 State v. Morgan 256 
 
 State v. Nargashian 385 
 
 State v. Nash 139 
 
 State v. O'Brien 120 
 
 State v. Oliver 229 
 
 State v. Poynier 269 
 
 State v. Pulle 9 
 
 State v. Rippeth HI 
 
 State v. St. Clair 546 
 
 State v. Sales 204 
 
 State v. Scates 343 
 
 Pago 
 
 State v. Scates 345 
 
 State v. Shepabd 322 
 
 State v. Sh ields 326 
 
 State v. Skilbrick 476 
 
 State v. Smith 228 
 
 State v. Spivey 375 
 
 State v. Stewart 219 
 
 State v. Taylor 261 
 
 State v. Williams 32 
 
 State v. Yanz 3S2 
 
 Stinson v. People 430 
 
 Storey v. State 234 
 
 Taylor v. State 345 
 
 Thornton v. State 267 
 
 Tuberville v. Savage 291 
 
 United States v. Ashton 67 
 
 United States v. Holmes 71 
 
 United States v. Hudson 4 
 
 United States v. John Kelso Co. 182 
 
 United States ». Moore 593 
 
 United States v. Myers 292 
 
 United States v. Rice 225 
 
 United States v. Worrall 1 
 
 Wall's Case 576 
 
 Ward v. People 401 
 
 Westrup v. Commonwealth 124 
 
 Whitten v. State 181 
 
 Wiloox v. StatP 180 
 
 Wilkinson's Case 409 
 
 Williams v. State 53 
 
 Wright's Case 501, 581 
 
 Yoes v. State 12
 
 "No department of law can claim greater moral importance than 
 that which, with the detail and precision necessary for legal purposes, 
 stigmatizes certain kinds of conduct as crimes, the commission of 
 which involves, if detected, indelible infamy and the loss, as the case 
 may be, of life, property or personal liberty." 1 Stephens' History 
 
 of Criminal Law, ix. 
 
 * 
 
 Mik.Cb.L. (xx)f

 
 CASES ON CRIMINAL LAW. 
 
 CHAPTER I. 
 SOURCES OF THE CRIMINAL LAW. 
 
 SECTION 1.— CRIMINAL LAW OF THE FEDERAL 
 
 GOVERNMENT. 
 
 UNITED STATES v. WORRALL. 
 
 (Circuit Court of United States, Pennsylvania District, 1798. 2 Dall. 384, Fed 
 " Cas. No. 16,766, 1 L. Ed. 426.) 
 
 The defendant was charged with an attempt to bribe Tench Coxe, 
 the Commissioner of the Revenue, the indictment containing two 
 counts. Verdict — Guilty on both counts of the indictment. 1 
 
 Dallas, whohad declined speaking on the facts before the jury, 
 now m oved in arrest of judg ment. 
 
 Rawle, District Attorney, contra. 
 
 Chase, Justice. Do you mean, Mr. Attorney, to support this in- 
 dictment solely at common law? If you do, I have no difficulty, upon 
 the subject. The indictment cannot be maintained in this court. 
 
 Rawle, answering in the affirmative, Chase, Justice, stopped Mr. 
 Levy, who was about to reply, in support of the motion in arrest of 
 judgment, and delivered an opinion to the following effect : 
 
 Chase, Justice. This is an indictment for an offense highly in- 
 jurious to morals, and deserving the severest punishment; but, as 
 it is an indictment at common law, I dismiss, at once, everything that 
 has been said about the Constitution and laws of the United States. 
 
 In this country, every man sustains a two-fold political capacity; 
 one in relation to the state, and another in relation to the United 
 States. In relation to the state, he is subject to various municipal reg- 
 ulations, founded upon the state Constitution and policy, which do 
 not affect him in his relation to the United States; for the Con- 
 stitution of the Union is the source of all the jurisdiction of the na- 
 tional government, so that the departments of the government can 
 never assume any power that is not expressly granted by that instru- 
 
 i Part of this case is omitted. 
 Mik.Ck.L.— 1
 
 2 SOURCES OF THE CRIMINAL LAW. (Ch. 1 
 
 ment, nor exercise a power in any other manner than is there pre- 
 scribed. Besides the particular cases which the eighth section of the 
 first article designates, there is a power granted to Congress to create, 
 define, and punish crimes and offenses, whenever they shall deem 
 it necessary and proper by law to do so for effectuating the objects of 
 the government; and, although bribery is not among the crimes and 
 offenses specifically mentioned, it is certainly included in this gen- 
 eral provision. The question, however, does not arise about the 
 power; but about the exercise of the power— whether the courts of 
 the United States can punish a man for any act, before it is declared 
 by a law of the United States to be criminal. Now, it appears 
 to my mind to be as essential that Congress should define the offenses 
 to be tried, and apportion the punishments to be inflicted, as that 
 they should erect courts to try the criminal, or to pronounce a sen- 
 tence on conviction. 
 
 It is attempted, however, to supply the silence of the Constitution 
 and statutes of the Union by resorting to the common law for a defini- 
 tion and punishment of the offense which has been committed; but, 
 in my opinion, the United States, as a federal government, have 
 no common law, and, consequently, no indictment can be maintained 
 in their courts for offenses merely at the common law. If, indeed, 
 the United States can be supposed, for a moment, to have a com- 
 mon law, it must, I presume, be that of England; and yet it is im- 
 possible to trace when or how the system was adopted or introduced. 
 With respect to the individual states, the difficulty does not occur. 
 When the American colonies were first settled by our ancestors, it 
 
 held, as well by the settlers as by the judges and lawyers of 
 England, that they brought hither, as a birthright and inheritance, 
 so much of the common law as was applicable to their local situation 
 and change of circumstances. But each colony judged for itself 
 what parts of the common law were applicable to its new condition, 
 and in various modes, by legislative acts, by judicial decisions, or by 
 
 tant usage, adopted some parts and rejected others. Hence he 
 who shall travel through the different states will soon discover that 
 the while of the common law of England has been nowhere intro- 
 duced, that some states have rejected what others have adopted, and 
 that there is, in short, a great and essential diversity in the sub- 
 o which the common law is applied, as well as in the extent 
 of its application. The common law, therefore, of one state, is not 
 the common law of another, bul the common law of England is the 
 
 of each state, so far as each slate has adopted it; and it results 
 from thai position, i ted with the judicial act, thai the common 
 
 law will always apply ti between citizen and citizen, whether 
 
 they are instituted in a f< di ral or state court. 
 
 But the question recurs, when and how have the courts of the 
 United quired a common law jurisdiction in criminal cases? 
 
 The United . musl r the common law themselves before
 
 Sec. 1) CRIMINAL LAW OF THE FEDERAL GOVERNMENT. 3 
 
 they can communicate it to their judicial agents. Now, the United 
 States did not bring it with them from England, the Constitution 
 does not create it, and no act of Congress has assumed it. Besides, 
 what is the common law to which we are referred? Is it the common 
 law entire, as it exists in England, or modified, as it exists in some 
 of the states; and of the various modifications which are we to 
 select, the system of Georgia or New Hampshire, of Pennsylvania or 
 Connecticut? 
 
 Upon the whole, it may be a defect in our political institutions, 
 it may be an inconvenience in the administration of justice, that the 
 common-law authority, relating to crimes and punishments, has not 
 been conferred upon the government of the United States, which 
 is a government in other respects also of a limited jurisdiction; but 
 judges cannot remedy political imperfections, nor supply any leg- 
 islative omission. I will not say whether the offense is at this time 
 cognizable in a state court. But jcertainly Congress might have pro- 
 vided by law for the present case, as they have provided for oilier 
 cases of a similar nature ; and yet if Congress had ever declared 
 and defined the offense, without prescribing a punishment, I should 
 still have thought it improper to exercise a discretion upon that 
 part of the subject. 
 
 Peters, Justice. Whenever a government has been established, 
 I have always supposed that a power to preserve itself was a neces- 
 sary and an inseparable concomitant. But the existence of the fed- 
 eral government would be precarious, it could no longer be called an 
 independent government, if for the punishment of offenses of this 
 nature, tending to obstruct and pervert the administration of its af- 
 fairs, an appeal must be made to the state tribunals, or the offenders 
 must escape with absolute impunity. 
 
 The power to punish misdemeanors is originally and strictly a 
 common-law power, of which, I think, the United States are con- 
 stitutionally possessed. It might have been exercised by Congress 
 in the form of a legislative act ; but it may, also, in my opinion, be 
 enforced in a course of judicial proceeding. Whenever an offense 
 aims at the subversion of any federal institution, or at the corrup- 
 tion of its public officers, it is an offense against the well-being of 
 the United States; from its very nature, it is cognizable under their 
 authority; and, consequently, it is within the jurisdiction of this court, 
 by virtue of the eleventh section of the judicial act. 
 
 The court being divided in opinion, it became a doubt whether 1 
 sentence could be pronounced upon the defendant; and a wish was 
 expressed by the judges and the attorney of the district that the 
 case might be put into such a form as would admit of obtaining the 
 ultimate decision of the Supreme Court upon the important prin- 
 ciple of the discussion. But the counsel for the prisoner did not 
 think themselves authorized to enter into a compromise of that na- 
 ture. The court after a short consultation, and declaring that the
 
 4 SOURCES OF THE CRIMINAL LAW. (Ch. 1 
 
 sentence was mitigated in consideration of the defendant's circum- 
 stances, proceeded to adjudge that the defendant be imprisoned for 
 three months, that he pay a fine of $'200, and that he stand commit- 
 ted till this sentence be complied with and the costs of prosecution 
 paid. 2 
 
 SECTION 2.— CRIMINAL LAW OF THE STATES. 
 
 GUARDIANS OF THE POOR v. GREENE. 
 (Supreme Court of Pennsylvania, 1813. 5 Bin. 554.) 
 
 This was an action of debt in the common pleas of Philadelphia 
 county, to recover from the defendant the penalty of $60 prescribed 
 by the act of the 29th of March, 1803 (4 Smith's Laws, p. 50), for 
 refusing to take the oath of office of a guardian of the poor for the 
 township of the Northern Liberties, or to undertake the duties of 
 that office. 
 
 The cause was decided below in favor of the defendant in error. 
 
 Ti i. oi i. max, C. J. 3 The question in this case is whether the de- 
 fendant in error, an ordained deacon and an elder in the Methodist 
 Kpiscopal Church, is subject to the penalties of the act of the 29th 
 of March, 1803 (4 Smith's Laws, p. 50), for not serving in the office 
 of a guardian of the poor, to which he was elected. There is no 
 Moubl but the commonwealth has a right to insist on the service of 
 every member of the community in any capacity in which it may be 
 thoTigfit proper to exact it. But, unless the intention is clearly ex- 
 '. it is not to be supposed that services were meant to be ex- 
 acted contrary to ancient usage, and involving incompatible duties. 
 
 s in 1812 the Supreme Court of the United States, in II. S. v. Hudson, 7 
 
 Cranrb, 32. 3 L. Ed. 259, decided, without argument, that while certain implied 
 
 to line f< mpt, imprison for contumacy, to enforce the observance 
 
 p, etc., !■ rilj resulted to the federal courts from the nature of 
 
 ition, ti xercise of criminal jurisdiction in common-law cases 
 
 nol within t n.ir Implied powers, in 1816 the same point arose in U. S. 
 
 l Wheat 415, i L. Ed. 124. Story, J., said he did not consider 
 
 the question settled by r. 8. v. Hudson. Washington and Livingston, JJ., 
 
 red the p Ini argued, and Johnson, J., considered the question no longer 
 
 an open one; bul tin- Attorni ral refusing to argue the point, and no 
 
 appearing for the the Courl would uol review, nor draw 
 
 in doubt iIk- decision in i". S, v. Hudson. 
 
 'I'll' frequently relied on as establishing the 
 
 See ' I 'ton. p>s p. s. 199, 'i Sup. Ct 531, L'T L. Ed. 698 
 
 ■i: in re Gi • 2 Fed. no (1892). Sec for the Districl of Co- 
 
 lumb i er v. U. 6 >. D. C. 324 (1904). 
 
 in i . s. % i: 181, 1 i No. 16,1 1.".. it was held dial the 
 
 1 rcull Courl Jurisdiction in murder did uol em- 
 i Hue of I let to murder. 
 
 Pari ..r the ..pinion of Tllghman, c. J., ami the concurring opinion of 
 I ilnlon oi p.. . kenridge, .(., arc omitted
 
 <t ,aif ^^4 ^' ^'"'
 
 Sec. 2) CRIMINAL LAW OF THE STATES. 5 
 
 Every country has its common law. Ours is composed partly of the 
 common law of England, and partly of our own usage s. When our 
 ancestors emigrated from England, they took with them such of the 
 English principles as were convenient for the situation in which they 
 were about to place themselves. It required time and experience to 
 ascertain how much of the English law would be suitable to this coun- 
 try. By degrees, as circumstances demanded, we adopted the English 
 usages, or substituted others better suited to our wants, till at length, 
 before the time of the Revolution, we had formed a system of our 
 own, founded in general on the English Constitution, but not with- 
 out considerable variations. In nothing was this variation greater 
 than on the subject of religious establishments. The minds of Wil- 
 liam Penn and his followers would have revolted at the idea of an es- 
 tablished church. Liberty to all, but preference to none ; this has been 
 our principle, and this our practice. But although we have had no 
 established church, yet we have not been wanting in that respect, nor 
 niggards of those privileges, which seem proper for the clergy of all re- 
 ligious denominations. It has not been our custom to require the serv- 
 ices of clergymen in the offices of constables, overseers of the high- 
 ways or of the poor, jurors, or others of a similar nature. Not that 
 this exemption is founded on any act of assembly, but on a universal 
 tacit consent. In the nature of things, it seems fit that those persons 
 who devote their lives to the service of God and the religious in- 
 struction of their brethren should be freed from the burden of tem- 
 poral offices, which would but distract their attention and may be bet- 
 ter filled by others. This sentiment is not peculiar to us. We find it 
 in the English common law, though from motives of policy restrict- 
 ed, perhaps, to the established church. It is said by Lord Coke, in 
 2 Inst. 3, 4, to be a principle of the ancient common law that the clergy 
 shall not be implicated in secular business, and that if a man holding 
 lands, by virtue of which he is bound to serve in temporal offices, be- 
 come an ecclesiastical person in holy orders, he ought not to be elect- 
 ed to such office, and, if he is, he may have the king's writ for his dis- 
 charge. And in the Register of Writs, 187, and Fitz. N. B. 175, the 
 form of the writ is to be found. It_ appears, then, that what the .Eng- 
 lish have applied to their established church we, in conformity to our 
 principles of religious liberty, have granted to the clergy of all pro- 
 fessions. Nor is the privilege confined to common-law offices. It is 
 proved by the cases cited in the argument to which I refer that the 
 same construction has been held with respect to offices created by 
 statute, in which there is no express exemption of the clergy. The 
 rule of construction is this : Unless the clergy are mentioned, it shall 
 not be supposed that it was intended to include them. If we apply this 
 rule to the act of assembly in question, the case will be easily decided. 
 The act directs that a certain number of substantial householders shall 
 be elected, but is altogether silent as to any exemptions. We must 
 oresume. then, that it was not intended to include persons who, from
 
 6 SOURCES OF THE CRIMINAL LAW. (Ch. 1 
 
 ancient usage, were exempt from this kind of service, or who held 
 other offices incompatible with the duty of a guardian of the poor. 
 Without such presumption, how is it that judges and attorneys at law 
 are privileged? They have no express privilege by that or any other 
 law, but in sound construction they are excepted from the general 
 words of the act. 
 
 My opinion is, that the court of common pleas were right in their 
 construction of the act of assembly, and therefore their judgment 
 should be affirmed. 
 
 JAMES v. COMMONWEALTH. 
 (Supreme Court of Pennsylvania, 1825. 12 Serg. & R. 220.) 
 
 This was a writ of error to the court of quarter sessions of Phila- 
 delphia county, at the September sessions of which court Nancy 
 James, the plaintiff in error, had been convicted of being a common 
 scold, and thereupon, on the 29th day of October, 1824, adjudged 
 'to be placed in a certain engine of correction, called a cucking or 
 ducking stool, and, being placed therein, to be plunged three times 
 into the water, to pay the costs of prosecution, and stand committed 
 till the sentence is complied with." The error assigned was "that 
 this judgment is illegal." 
 
 Duncan, J. 1 This sentence, we are informed, has created much 
 ferment and excitement in the public mind. It is considered as a 
 cruel, unusual, unnatural, and ludicrous judgment. But whatever 
 prejudices may exist against it, still, if it be the law of the land, the 
 court must pronounce judgment for it. But as it is revolting to 
 humanity, and is of that description that only could have been in- 
 vented in an age of barbarism, we ought to be well persuaded, either 
 that it is the appropriate judgment of the common law, or is inflicted 
 by some positive law, and that that common law or statutory provi- 
 sion has been adopted here and is now in force. 
 
 The late Judge Ingersoll, a name respected and honored, when 
 Attorney General, in his report to the Legislature in 1813, stated 
 that by several acts of assembly "cruel and unnatural punishments, 
 which tended only to harden and confirm the criminal, had been 
 abolished for all inferior offenses." The sanguinary code of England 
 could be no favorite with William Penn and his followers, who fled 
 from persecution. Cruel punishments were not likely to be intro- 
 duced by a society who denied the right to touch the life of man, 
 even for the mosl atrocious crime. For, had they brought with them 
 the whole body of the British criminal law, then we should have had 
 the appeal of death, and the impious spectacle of trial by battle in 
 
 » Only extract! from the opinion are printed.
 
 Sec. 2) CRIMINAL LAW OF THE STATES. 7 
 
 a Quaker colony; and it is worthy of remembrance that the charter 
 of William Penn empowered him, with the advice and assent of the 
 freemen, to make laws for their own government, and until this was 
 done the laws of England in respect to real and personal property, and 
 as to felonies, were to continue the same. Thus, as to misdemeanors, 
 the common-law punishments were not brought over by the first 
 settlers. 
 
 The first body of laws (called the "great body of laws") contains 
 an act, passed in 1682, against scolding, imposing the penalty, five 
 shillings, or three days' confinement at hard labor. Chapter 31. 
 The second act, in 1683 (chapter 12), inflicts the same penalty, or 
 standing one hour in the most public place, with a gag in the mouth ; 
 and 11 years after this, in 1693, in the petition of right to Gov. 
 Fletcher, they state that the laws contained in that list had not been 
 repealed by the king in council, and that it had pleased the king 
 and queen so tenderly to regard their happy government as to con- 
 firm their laws and constitutions, so fitly accommodated to their cir- 
 cumstances, and conclude by earnestly desiring him to govern them 
 according to these laws, including the laws against scolding; and 
 the Governor commanded them to be enforced. These acts con- 
 tinued in force until 1770, when another act against scolding passed, 
 inflicting the same penalty, of imprisonment five days at hard labor, 
 or to be gagged and stand at some convenient place, at the discre- 
 tion of the magistrate. The act of 1770 was repealed by the queen 
 in council, but I have not been able to find the repeal of the acts of 
 1682 and 1683. It seems to have been the opinion of the late Judge 
 Bradford that all in the great body of laws was repealed, and I would 
 not venture totally to dissent from so high an authority, though I 
 must confess I think this very doubtful. Nor do I see how, con- 
 sistently with the charter, this could otherwise be repealed than by 
 act of assembly. If they were not directly repealed, they were not 
 virtually repealed by the repeal of the act of 1770. Whatever be 
 the fact, the conclusion is the same — that the common-law punish- 
 ment of ducking was not received nor embodied by usage, so as to 
 become a part of the common law of Pennsylvania. It was rejected, 
 as not accommodated to the circumstances of the country, and against 
 all the notions of punishment entertained by this primitive and hu- 
 mane community; and, though they adopted the common-law doc- 
 trines as to inferior offenses, yet they did not follow their punish- 
 ments. One remarkable instance I will notice: A gross libel in 
 England was sometimes punished by the pillory. I believe Mr. 
 Prynne lost both his ears. Though the offense is the same here, 
 yet the sentence is very different. It is not true that our ancestors 
 brought with them all the common-law offenses; for instance, that 
 of champerty and maintenance this court decided in Stoever v. Whit- 
 man's Lessee. 6 Bin. 416, did not exist here. I do not find the rule 
 on this subject more satisfactorily laid down anywhere than by the
 
 8 SOURCES OF THE CRIMINAL LAW. (Ch. 1 
 
 Chief Justice, in Guardians of the Poor of Philadelphia v. Greene, 
 5 Bin. 558. 
 
 This is a very different question from the common-law rules of 
 real and personal property— the modes of acquisition and alienation 
 of estates. For, although the reasons of many of those rules have 
 ceased, yet it might be dangerous, on that account, to abolish them, 
 as it would lessen the security of property of titles to land, which 
 should always be firm and stable; and by the charter they were to 
 remain the same as in England, except when altered by the repre- 
 sentatives of the people. But I am far from professing the same 
 reverence for all the degrading and ludicrous punishments of the 
 early days of the common law. I am far from thinking that this is an 
 unbroken pillar of the common law, or that to remove this rubbish 
 would impair a structure which no man can admire more than I do. 
 But I must confess I am not so idolatrous a worshipper as to tie my- 
 self to the tail of this dung cart of the common law. * * * The 
 courts of our sister states of New York and Massachusetts, governed 
 by the same common law as we are, have declared that this strange 
 and ludicrous punishment no longer exists with them. 
 
 In considering this question I own I have some hesitation in de- 
 ciding whether the offense of communis vexatrix exists as indictable, 
 but I have acceded to the opinion of the Chief Justice and my Broth- 
 er Gibson. It is now to be considered as indictable and punishable 
 as a common nuisance, by fine, or by fine and imprisonment, at the 
 discretion of the court, the acts of assembly being obsolete, and the 
 common-law punishment of ducking not being received here; and 
 I join in the hope of a learned antiquarian and jurist of our own 
 country "that we shall hereafter hear nothing of the ducking stool, 
 or other remains of the customs of barbarous ages." Duponceau on 
 Jurisdiction, 96. It is therefore the opinion of the court that the 
 judgment of the court of quarter sessions be reversed. 
 
 Judgment reversed. 
 
 Per Curiam in RESPUBLICA v. ROBERTS, 1 Yeates, 6 (1701). The 
 Blngle quest imi is whether an unmarried man may be guilty of adultery un- 
 der tin- ad "f assembly. 
 
 Had the case been res Integra, the decision of the court might be different 
 from what it now is. It is true that practice sub silentio will not make the 
 law, but it Is Btrong evidence of what the law is. It having been the constant 
 practice to proceed against unmarried persons for fornication, though they 
 may have been guilty of criminal conversation with married persons, we will 
 not exaggerate the offense, nor carry it further than our predecessors have 
 done.
 
 Sec. 2) CRIMINAL LAW OF THE STATES. 9 
 
 STATE v. PULLE. 
 
 (Supreme Court of Minnesota, 38G6. 12 Minn. 1G4, [Gil. 99].) 
 
 Wilson, C. J. 1 The common law, so far as it is applicable to our 
 situation and government, is, as a general rule, the law of this coun- 
 try. Every state, with perhaps one exception, has adopted it, either 
 tacitly or by express statutory enactment. See 1 Kent's Commenta- 
 ries, 470^73, note, and cases in note. That it is the law of this state, 
 controlling both the rights and the remedies of parties in actions be- 
 tween individuals, either on a contract or for a tort, cannot be doubt- 
 ed, for the courts have recognized and acted on this fact ever since 
 the organization of our territorial government, and we find no evi- 
 dence which satisfies us that either the state or territory intended to 
 repudiate the common law as a source of jurisdiction in either crimi- 
 nal or civil cases. - It having been adopted in civil cases, the presump- 
 tion certainly is that it was adopted as an entirety, so far as it is not 
 inconsistent with our circumstances, or statutory or constitutional law. 
 Nor do the laws in force in Wisconsin Territory at the date of the 
 admission of the state of Wisconsin (which, by our organic act were 
 declared to be valid and operative in Minnesota Terrritory) rebut this 
 presumption. There is nothing in these laws which shows that the 
 territory of Wisconsin abrogated or repealed the common law as to 
 crimes, but, on the contrary, we think they show that it was recog- 
 nized and adopted in that territory. That our statutes expressly abol- 
 ish common-law offenses is not pretended. A statute which is clear- 
 ly repugnant to the common law must be held as repealing it, for 
 the last expression of the legislative will must prevail; or we may 
 admit, for the purposes of this case, that when a new statute covers 
 the whole ground occupied by a previous one, or by the common law, 
 it repeals by implication the prior law, though there is no repugnancy. 
 Beyond this the authorities do not go in sustaining a repeal of the 
 common law by implication. On, the contrary, it is well settled that, 
 where a statute does not especially repeal or cover the whole ground 
 occupied by the common law, it repeals it only- when, and so far as, 
 directly and irreconcilably opposed in terms. See 1 Bish. Cr. Law 
 (3d Ed.) §§ 195 to 200, and cases cited in notes to said sections. 
 
 Our statutes fall far short of covering the whole field of common- ' 
 law crimes. It is not pretended that conspiracy is, by them, made a 
 crime, and we think it very clear that libel is not, and many other in- 
 stances might be added. We think, therefore, that they do not, by im- 
 plication, abolish these crimes. But, further than this, we think our 
 statutes clearly recognize the existence of common-law offenses. Sec- 
 tion 2, c. 87, Comp. St. 1849-1858, reads as follows: "* * * 
 Crimes and public offenses and criminal proceedings are modified as 
 prescribed in these statutes." The Revised Statutes were adopted in 
 
 i The opinion only is printed.
 
 10 SOURCES OF THE CRIMINAL LAW. (Ch. 1 
 
 1851, and the language above quoted was added as an amendment in 
 
 1852. It is perhaps true that this amendment did not change the 
 meaning of the statutes; but legislators frequently, and properly, 
 make use of language which, strictly speaking, is unnecessary, out of 
 abundant caution, and for the purpose of making clear what other- 
 wise might, in the minds of some, admit of doubt. We think, in this 
 view, the Legislature must have used the language above quoted, to 
 show that our statutes as to crimes were intended merely as a modi- 
 fication, and not as an entire repeal or abrogation, of the common law. 
 This seems to us the fair and natural meaning of the language, and 
 any other construction suggested seems forced and unauthorized. 
 Section 34 of chapter 90 of said Statutes reads : "Every person who 
 shall be convicted of any gross fraud or cheat, at common law, shall 
 be punished," etc. Section 5, c. 98, Id., reads : "Every person who 
 shall become an accessory after the fact, to any felony, either by com- 
 mon law, or by any statute made, or which shall hereafter be made, 
 may be indicted," etc. Our statutes in no place declare that any act 
 shall constitute the crime of libel, or that such crime shall be punished, 
 yet they provide as to what evidence may be given, and as to the form 
 and substance of the indictment in prosecutions for such crime. Comp. 
 St. 1849-1858, p. 734, c. 98, § 6 ; Id. p. 756, c. 105, § 3; Id. p. 760, 
 c. 105, § 17. These sections are an admission or recognition by the 
 Legislature of the fact that common-law offenses may be punished in 
 this state. This conclusion is in accordance with the views enter- 
 tained by the courts generally throughout the United States. See 
 authorities cited in note to 1 Bishop, Cr. Law (3d Ed.) § 36. 
 
 If common-law crimes are suspended or abolished by our statutes, 
 so are "criminal proceedings" ; but the Legislature, by the express 
 and particular repeal of certain criminal practice and proceeding 
 (Comp. St. 1849-1858, p. 735, c. 98, § 14; Id. p. 785, c. 118, § 37), 
 clearly indicate that they did not consider the general statute as affect- 
 ing such repeal. The gist of this offense is the unlawful confedera- 
 tion, and it is not necessary to prove an overt act in pursuance of it. 
 Commonwealth v. Judd, 2 Mass. 329, 3 Am. Dec. 54. The exceptions 
 are overruled. 
 
 BERRY, J. I dissent. In my judgment no offenses at common law 
 arc offenses in this state, except such as are specifically recognized by 
 our statutes. 2 
 
 > The common law, in so far ns it determines what nets nre crimes, is not 
 In force In the following states: [ndlana -Jones v. State, 59 [nd. 229 (1877); 
 Iowa- Estee v. Carter, 10 Iowa, 400 (1860); Kansas- state v. 7oung, . r ,r, Kan. 
 349, i" Pac. 669 (1896); Michigan In re Lamphere, 61 Mich. 105, 27 N. W. 
 882 (1886); Nebraska state v. Oe Wolfe, 67 Neb. 321, 93 N. W. 746 (1903); 
 Ohio Smith v. state. 12 Ohio St. 466, 80 Am. Dee. 365 (1861); Oregon— State 
 e. Gaunt, 13 Or. 115, 9 Pac. 55 (1886). 
 
 Ecclesiastical Offenses.- it is said in Grlsham & Llgan v. State, 2 Yer£. 
 (Tenn.) . r ,:ir. (1881); "Bui let it be understood that the temporal courts In 
 
 England have do cognizance of ti rime of adulter; <n- fornication, when 
 
 i ami private and confl i to single Instances, yel they arc not thereby
 
 Sec. 2) 
 
 CRIMINAL LAW OF THE STATES. 
 
 11 
 
 legalized, or rendered dispunishable, as not being offenses. They continue 
 offenses there still, but their cognizance is transferred and assigned to the 
 spiritual court, who punish according to the rules of the canon law. it cannot 
 follow as a consequence that an offense which is common to both the law of 
 England and this state, and is animadverted upon by the law of England 
 and punished by the spiritual court there, shall escape the like animadversion 
 of the law and punishment here, because we have not a spiritual court ; but 
 it rather follows, from analogy, that our county courts of pleas and quarter 
 sessions have the jurisdiction in these matters, as we find that matters, the 
 proper tribunal of which was the spiritual court in England, are in this state, 
 when not repugnant to our Constitution and form of government, assigned 
 to the county courts, as the probate of wills and testaments, the granting of 
 letters of administration, etc." 
 
 The great majority of the authorities, however, hold that offenses cogniz- 
 able only in the spiritual courts in England cannot be punished here except 
 by statute. 
 
 cv> 
 
 
 
 ^■^Jmj " L Si 
 
 Or- 
 
 
 
 
 3 u 
 
 U^^A fr*\ ^"U^ : J
 
 12 THE ELEMENTS OF CRIME. (Ch. 2 
 
 CHAPTER II. 
 THE ELEMENTS OF CRIME. 
 
 SECTION 1.— UNION OF INTENT AND ACT. 
 
 YOES v. STATE. 
 
 (Supreme Court of Arkansas, 1848. 9 Ark. 42.) 
 
 Enos Yoes was indicted in Washington circuit court for an as- 
 sault and battery upon James C. Hughes. He was tried on the plea 
 of not guilty, at the May term, 1847, before Hon. Wm. W. Floyd, 
 Judge, convicted, and fined $10. x 
 
 Johnson, C. J. The circuit court manifestly erred in giving the 
 first instruction asked by the state. The instruction is that, if the 
 jury believe from the evidence that the defendant went to the meeting- 
 house yard and called Hughes out for the purpose of having a diffi- 
 culty with him, they should find him guilty. A crime or misdemeanor 
 consists in a violation of public law, in the commission of which 
 there must be a union or joint operation of act and intention or 
 criminal negligence. See section 1 of chapter 44 of the Revised Stat- 
 utes of 1837. The mere fact of going to a place with the intention 
 of doing an unlawful act will not of itself subject the party to the 
 punishment denounced against such act, unless he also carries his 
 intention into effect. If the defendant below actually made an as- 
 sault upon Hughes in pursuance of his preconceived and settled in- 
 tention, then it was that the motives which induced him to go to the 
 place where Hughes was might have been legitimately inquired into 
 in aggravation of the fine, but could not under any state of case have 
 furnished conclusive evidence of his guilt. No valid objection is per- 
 ceived to the last instruction; but for the error in giving the first 
 the judgment must be reversed. 
 
 i The evidence and the charge of the court are omitted.
 
 Sec. 2) OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY. 13 
 
 SECTION 2.— OFFENSES AGAINST PUBLIC JUSTICE 
 
 AND AUTHORITY. 
 
 ANONYMOUS. 
 (King's Bench, 1GS6. 3 Mod. 52.) 
 
 One was indicted for the drinking of an health to the pious memory 
 of Stephen College, who was executed at Oxford for high treason. 
 He was fined one thousand pounds, and had sentence to stand in the 
 pillory, and was ordered to find sureties for his good behavior. 1 
 
 REX v. DARBY. 
 
 (King's Bench, 1687. 3 Mod. 139.) 
 
 The defendant was indicted for speaking of scandalous words of 
 Sir John Kerle, a justice of the peace, viz.: "Sir John Kerle is a 
 buffle-headed fellow, and doth not understand law; he is not fit to 
 talk law with me ; I have baffled him, and he hath not done my client 
 justice." This is a scandal upon the government, and it is as much 
 as to say that the king hath appointed an ignorant man to be a justice 
 of peace, for which an indictment will lie. 2 And of that opinion was 
 the whole court, and gave judgment accordingly. 3 
 
 
 PENNSYLVANIA v. MORRISON. 
 
 (County Court of Allegheny, 1795. Add. 274.) 
 
 These men were indicted for having, on 18th August, 1794, unlaw- 
 fully, riotously, and routously assembled together to disturb the peace, 
 and in Market street, in Pittsburg, raised a pole or standard, called a 
 liberty pole, in defiance of the laws of the state of Pennsylvania and 
 of the United States, and as an indignity and insult to the Honorable 
 James Ross, Jasper Yeates, and William Bradford, Esquires, com- 
 missioners on behalf of the United States of America, and the Hon- 
 orable Thomas McKean and William Irwin, Esquires, commissioners 
 on behalf of the state of Pennsylvania, to confer with the citizens of 
 
 » 
 1 See also, absolving impenitent traitors, Rex v. Cook, Comb. 382 (1696). 
 s Part of this case is omitted. 
 
 s Accord: Anon., Comb. 46 (16S8) ; Rex v. Collier. 1 Wils. 332 (1752). Rut 
 see Reg. v. Wrightson, 11 Mod. 166 (1708) ; Rex v. Weltje, 2 Camp. 142 (1809).
 
 14 THE ELEMENTS OF CRIME. (Ch. 2 
 
 the counties west of the Alleghany mountains, to the great disturb- 
 ance of the peace, and to the ill example of others. 1 
 
 President. Pole raising was a notorious symptom of disssatisfac- 
 tion, and the exhibition of this, in the only part of the country where 
 government was supposed to have strength, must have made an im- 
 pression very unfavorable to the whole country, promoted violence 
 in the people here, and induced force on the part of the government. 
 
 Verdict— guilty, except as to White and McWilliams. 
 
 REX v. WILLIAMS. 
 
 (King's Bench, 1762. 3 Burr. 1317.) 
 
 An information was granted by the court against the defendants, 
 as justices of the peace for the borough of Penryn, for refusing to 
 grant licenses to those publicans who voted against their recommenda- 
 tion of candidates for members of Parliament for that borough. It 
 appeared that they had acted very grossly in this matter, having previ- 
 ously threatened to ruin these people, by not granting them licenses, 
 in case they should vote against those candidates whose interests those 
 justices themselves espoused, and afterwards actually refusing them 
 licenses upon this account only. And Lord Mansfield declared that 
 the court granted this information against the justices, not for the 
 mere refusing to grant the licenses (which they had a discretion to 
 grant or refuse, as they should see to be right and proper), but for 
 the corrupt motive of such refusal, for their oppressive and unjust 
 refusing to grant them, because the persons applying for them would 
 not give their votes for members of Parliament as the justices would 
 have had them. 2 
 
 COMMONWEALTH v. McHALE. 
 
 (Supreme Court of Pennsylvania, 1881. 97 Pa. 407.) 
 
 Paxson, J. 8 The indictment against Anthony McHale contains 
 three counts. In the first count it is charged that, "intending to pro- 
 cure a false count and return of the votes cast by the electors," etc., 
 he did "make false and fraudulent entries in the books kept by the 
 clerks at said election in said election district, which books are com- 
 monly known as the list of voters, of the names of divers persons, 
 
 i Piii-t of thia case is omitted. 
 
 2 Accord: Commonwealth v. Alexander, 4 Hen. & M. (Va.) r>22 (1808), eor- 
 rontlon in office; Commonwealth v. Callaghan, 2 Ya. Cas. 4G0 (1820), being 
 Intoxicated while in discharge of office. 
 
 » Part of the opinion la omitfc d.
 
 Sec. 2) OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY. 15 
 
 to wit, twenty-one persons, whose names are as follows," etc. The 
 second count charges that, with like intent, he did "deposit, among 
 the ballots cast at said election in said election district by the elect- 
 ors voting thereat, false and fraudulent ballots of a large number, to 
 wit, twenty-one ballots," etc. The third count charges that, with 
 like intent, he did, "with the connivance of the election officers hold- 
 ing said election, undertake and assume to count the ballots cast by 
 the electors voting at said election in said election district, and did 
 falsely, fraudulently, maliciously, and unlawfully make a false and 
 fraudulent count of said ballots as to make it appear that two hun- 
 dred and eleven votes were deposited for one Adolph W. Schalck 
 for the office of district attorney, when in truth and in fact he did 
 not receive more than one hundred and eighty-five votes," etc. 
 
 Some of these offenses, perhaps all of them, are indictable under 
 the act of 1839 and its supplements, when committed by election 
 officers. The defendants were not election officers; at least, they 
 were not indicted as such. 
 
 It must be conceded that offenses which strike at the purity and 
 fairness of elections are of a~gfave character. Are they indictable 
 aTthe common law? This is a serious, and at the same time com- 
 paratively new, question. In considering it, we have little in the way 
 of authority to guide us. 
 
 It was assumed by the learned counsel for the defendants that an 
 indictment will not lie at common law for such acts. In their print- 
 ed argument they dismiss the subject with this brief remark: "Of- 
 fenses asrainst the election laws are unknown to the common law. 
 They are purely and exclusively of statutory origin." It may safely 
 be admitted that, if the question depends ' upon the fact whether a 
 precise definition of this offense can be found in the text-books, or 
 perhaps in the adjudged English cases, the law is with the defend- 
 ants. This, however, would be a narrow view, and we must look 
 beyond the cases and examine the principles upon which common- 
 law offenses rest. It is not so much a question whether such of- 
 fenses have been so punished as whether they might have been. 
 
 What is a common-law offense? 
 
 The highest authority upon this point is Blackstone. In chapter 
 13, vol. 4, of Sharswood's edition, it is thus defined: "The last spe- 
 cies of offenses which especially affect the commonwealth are those 
 against the public police or economy. By the public police and 
 economy I mean the due regulation and domestic order of the king- 
 dom, whereby the individuals of the state, like members of a well- 
 governed family, are bound to conform their general behavior to 
 the rules of propriety, good neighborhood, and good manners, and 
 to be decent, industrious, and inoffensive in their respective stations. 
 This head of offenses must therefore be very miscellaneous, as it 
 comprises all such crimes as especially affect public society, and are 
 not comprehended under any of the four preceding series. These
 
 16 THE ELEMENTS OF CRIME. (Ch. 2 
 
 amount, some of them to felony, and others to misdemeanors only." 
 The learned author then proceeds to define certain offenses o f both 
 classes, which are among the crimes against the public police or 
 economy. The felonies I will omit. The misdemeanors are: (1) 
 Common or public nuisances, of which a large variety are given, 
 commencing with obstruction to public highways and ending with 
 common scolds. (2) Idleness. (3) Sumptuary laws. (4) Gaming. 
 (5) Destroying game. These, as the text shows, are but illustrations. 
 A large number of these and other common-law offenses are now, 
 and have for many years been regulated by statute in England. But 
 in most instances the statute is merely declaratory of the common 
 law, the object being to define the crime with greater accuracy or to 
 increase the punishment. 
 
 The above quotation from Blackstone is in harmony with other 
 text writers. We are of opinion that all such crimes as especially 
 affect public society are indictable at common law. The test is, not 
 whether precedents can be found in the books, but whether they in- 
 juriously affect the public police and economy. 
 
 It needs no argument to show that the acts charged in these in- 
 dictments are of this character. They are not only offenses which 
 affect public society, but they affect it in the gravest manner. An 
 offense against the freedom and purity of elections is a crime against 
 the nation. It strikes at the foundations of republican institutions. 
 Its tendency is to prevent the expression of the will of the people 
 in the choice of rulers, and to weaken the public confidence in elec- 
 tions. When this confidence is once destroyed the end of popular 
 government is not distant. Surely, if a woman's tongue can so far 
 affect the good of society as to demand her punishment as a common 
 scold, an offense which involves the right of a free people to choose 
 their own rulers in the manner pointed out by law is not beneath 
 the dignity of the common law, nor beneath its power to punish. 
 The one is an annoyance to a small portion of the body politic; the 
 other shakes the social fabric to its foundations. 
 
 Wc are of opinion that the offenses charged in these indictments 
 are crimes at common law. We regard the principle thus announced 
 as not only sound, but salutary. The ingenuity of politicians is such 
 that the offenses against the purity of elections are constantly liable 
 to occur which are not specifically covered by statute. It would be 
 a reproach to the law were it powerless to punish them. 
 
 It follows from what has been said that it was error to quash the 
 indict; 
 
 The judgment is reversed in each case, and a procedendo awarded. 2 
 
 •:-<i: Attempt to Influence a public ..nicer by offer of a reward, State 
 
 102, 07 Am. Dec. 7<>7 (1868); prison breach, State v. 
 
 Doud 7 Conn. H8. r » (1820) ; disobeying an order of a lustlce, Rex v. Gllkes, :: 
 
 ie, State v. Murray, 15 Me. 100 (1838); refusal to 
 i mforl v. Commonwealth, 5 Whart. (Pa.) 487 (1840); preventing
 
 Sec. 2) OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY. 17 
 
 attendance of witness or juror, State v. Carpenter, 20 Vt. 9 (1847) ; refusing 
 to accept office, Attorney General v. Read, 2 Mod. 299 (1678). But see State 
 v. McEntyre, 25 N. C. 171 (1842). 
 
 Other offenses against public justice are : 
 
 Barratry. — "A barrator is a common mover, exciter, or maintainer of suits 
 or quarrels, either in court or in the country." Hawk. P. C. (Curw. Ed.) 474. 
 See Commonwealth v. McCulloch, 15 Mass. 227 (1818). 
 
 Maintenance. — "An unlawful taking in hand, or upholding of quarrels 
 or sides, to the disturbance or hindrance of common right." Hawk. P. C 
 (Curw. Ed.) 454. See Key v. Vattier, 1 Ohio, 132 (1823). 
 
 Champerty. — "The unlawful maintenance of a suit, in consideration of 
 some bargain to have part of the thing in dispute, or some profit out of it." 
 Hawk. P. C. (Curw. Ed.) 463. See Thompson v. Reynolds, 73 111. 11 (1874). 
 
 Misprision of Felony. — "Misprision of felony is taken for a concealment 
 of felony, or a procuring of the concealment thereof, whether it be felony 
 by the common law, or by statute." 1 Hawk. P. C. (Curw. Ed.) 73. 
 
 Compounding of Crimes. — Compounding a crime is agreeing to take com- 
 pensation for forbearing to prosecute a person who has committed a crime. 
 Receiving a promissory note is sufficient consideration to constitute this ele- 
 ment of the offense, though the note may never be paid. Commonwealth v. 
 Pease, 16 Mass. 91 (1819). It is no defense to an indictment for compound- 
 ing that the defendant did in fact afterward prosecute the guilty person, 
 State v. Duhammel, 2 Har. (Del.) 532 (1836) ; State v. Ash, 33 Or. 86, 54 Pac. 
 184 (1898) ; or that the person whose alleged crime the defendant is charged 
 with compounding was acquitted of such crime, People v. Buckland, 13 Wend. 
 (N. Y.) 592 (1835) ; or that the defendant (a police officer) was corruptly act- 
 ing under the instructions of a superior, State v. Ash, 33 Or. 86, 54 Pac. 184 
 (1898) ; or that the defendant took the consideration for the benefit of an- 
 other. State v. Ruthven, 58 Iowa, 121, 12 N. W. 235 (1882), State v. Ash, 33 
 Or. 86, 54 Pac. 184 (1898). 
 
 Embracery. — "Embracery is an attempt to influence a jury corruptly to 
 one side by promises, persuasions, entreaties, money, entertainments, and 
 the like." 4 Bl. Com. 140. See Gibbs v. Dewey, 5 Cow. (N. Y.) 503 (1S26) ; 
 Caruthers v. State, 74 Ala. 406 (1883). As embracery is itself only an at- 
 tempt, there can be no indictment for an attempt to commit it. State v. Sales, 
 2 Nev. 268 (1866). 
 
 Obstructing Officers. — Obstructing or resisting an officer in the lawful 
 discharge of his official duties is a criminal offense. See Montgomery v. 
 Sutton, 58 Iowa, 697, 12 N. W. 719 ; State v. Bates, 23 Iowa, 96 (1S67) ; Peo- 
 ple v. Clements. 68 Mich. 655, 36 N. W. 792, 13 Am. St. Rep. 373 (1888). 
 
 Escape and Prison Breach. — "The escape of a person (lawfully) arrested, 
 by eluding the vigilance of his keepers before he is put in hold or in prison, 
 is an offense against public justice."' 4 Bl. Com. 129. See State v. Doud, 7 
 Conn. 385 (1829). 
 
 Contempts. — "Contempts * * * are either direct, which openly insult 
 or resist the powers of the courts, or the persons of the judges who preside 
 there, or else are consequential, which (without such gross insolence or di- 
 rect opposition) plainly tend to create a universal disregard of their author- 
 ity." 4 Bl. Com. 284. 
 Mik.Cr.L.— 2
 
 IS THE ELEMENTS OF CRIME. (Ch. 2 
 
 SECTION 3.— OFFENSES AGAINST THE LAW OF NA- 
 TIONS. 
 
 RESPUBLICA v. DE LONGCHAMPS. 
 
 (Oyer and Terminer of Philadelphia, 1784. 1 Dall. Ill, 1 L. Ed. 59.) 
 
 McKean, Chief Justice. 1 Charles Julian De Longchamps: You 
 have been indicted for unlawfully and violently threatening and men- 
 acing bodily harm and violence to the person of the Honorable Fran- 
 cis Barbe de Marbois, secretary to the legation from France, and 
 consul general of France to the United States of America, in the man- 
 sion house of the minister plenipotentiary of France, and for an as- 
 sault and battery committed upon the said secretary and consul in 
 a public street in the city of Philadelphia. To this indictment you have 
 pleaded that you were not guilty, and for trial put yourself upon the 
 country. An unbiased jury, upon a fair trial and clear evidence, have 
 found you guilty. 
 
 The first crime in the indictment is an infraction of the law of na- 
 tions. This law, in its full extent, is part of the law of this state, and 
 is to be collected from the practice of different nations, and the au- 
 thority of writers. 
 
 The person of a public minister is sacred and inviolable. Whoever 
 offers any violence to him not only affronts the sovereign he repre- 
 sents, but also hurts the common safety and well-being of nations. 
 He is guilty of a crime against the whole world. 
 
 All the reasons which establish the independency and inviolability 
 of the person of a minister apply likewise to secure the immunities of 
 his house. It is to be defended from all outrage. It is under a pecu- 
 liar protection of the laws. To invade its freedom is a crime against 
 the state and all other nations. 
 
 The comites of a minister, or those of his train, partake also of his 
 inviolability. The independency of a minister extends to all his house- 
 hold. These are so connected with him that they enjoy his privileges 
 and follow his fate. The secretary to the embassy has his commission 
 from the sovereign himself, lie is the most distinguished character 
 in the suite of a public minister, and is in some instances considered as 
 a kind of public minister himself. Is it not, then, an extraordinary 
 insult to use threats of bodily harm to his person in the domicile of 
 the minister plenipotentiary? If this is tolerated, his freedom of con- 
 duct is taken away, the business of his sovereign cannot be transact- 
 ed, and his dignity and grandeur will be tarnished. t 
 
 You, then, have been guilty of an atrocious violation of the law of 
 nations; you have grOJ ly insulted gentlemen, the peculiar objects of 
 
 i Part of i! e in omitted.
 
 SeC. 3) OFFENSES AGAINST THE LAW OF NATIONS. 19 
 
 this law (gentlemen of amiable characters, and highly esteemed by 
 the government of this state), in a most wanton and unprovoked man- 
 ner. And it is now the interest as well as duty of the government to 
 animadvert upon your conduct with a becoming severity — such a se- 
 verity as may tend to reform yourself, to deter others from the com- 
 mission of the like crime, preserve the honor of the state, and main- 
 tain peace with our great and good ally and the whole world. 
 
 A wrong opinion has been entertained concerning the conduct of 
 Lord Chief Justice Holt and the Court of King's Bench, in England, 
 in the noted Case of the Russian Ambassador. They detained the of- 
 fenders, after conviction, in prison from term to term until the Czar 
 Peter was satisfied, without ever proceeding to judgment; and from 
 this it has been inferred that the court doubted whether they could 
 inflict any judgment for an infraction of the law of nations. But 
 this was not the reason. The court never doubted that the law of 
 nations formed a part of theTaw of England, and that a violation of 
 tHis" general law could be punished by them; but no punishment less 
 than death would have been thought by the Czar an adequate repara- 
 tion for the arrest of his ambassador. This punishment they could 
 not inflict, and such a sentence as they could have given he might have 
 thought a fresh insult. Another expedient was therefore fallen upon. 
 However, the princes of the world at this day are more enlightened, 
 and do not require impracticable nor unreasonable reparations for 
 injuries of this kind. 
 
 The second offense charged in the indictment, namely, the assault 
 and battery, needs no observations. 
 
 Upon the whole, the court, after a most attentive consideration of 
 every circumstance in this case, do award, and direct me to pronounce, 
 the following sentence: 
 
 That you pay a fine of 100 French crowns to the commonwealth ; 
 that you be imprisoned until the 4th day of July, 1786, which will 
 make a little more than two years' imprisonment in the whole ; that 
 you then give good security to keep the peace and be of good behavior 
 to all public ministers, secretaries to embassies, and consuls, as well 
 as to all the liege people of Pennsylvania, for the space of seven years, 
 by entering into a recognizance, yourself in £1,000, and two securi- 
 ties in £500 each ; that you pay the costs of this prosecution, and re- 
 main committed until this sentence be complied with.
 
 20 THE ELEMENTS OF CRIME. (Ch. 2 
 
 SECTION 4.— OFFENSES AGAINST RELIGION. 
 
 REX v. TAYLER. 
 
 (King's Bench, 1676. 3 Keb. 607.) 
 
 An information by Mr. Attorney Jones for saying, Christ is a 
 W'horemaster, and Religion is a Cheat, and profession a Cloak, and 
 all Cheats, all are mine, and I am a King's Son, and fear neither 
 God, Devil, nor man; I am Christ's younger Brother (proved by three 
 witnesses), and that Christ is a Bastard, and damn all Gods of the 
 Quakers, &c. In destruction of Society and Religion, and contempt, 
 &c. None fears God but an hypocrite, proved by one. 
 
 Hale, C. J. These words though of Ecclesiastical cognizance, yet 
 that Religion is a cheat, tends to dissolution of all Government, and 
 therefore punishable here, and so of contumelious reproaches of God, 
 or the Religion establisht; which the Court agreed and adjudged. 
 An Indictment lay for saying the Protestant Religion was a fiction 
 for taking away Religion, all obligation to Government by Oaths, 
 &c, ceaseth, and Christian Religion is a part of the law itself, there- 
 fore injuries to God are as punishable as to the King, or any com- 
 mon person. Verdict, pro Rege. 1 
 
 SECTION 5.— OFFENSES AGAINST PUBLIC PEACE. 
 
 REX v. SUMMERS. 
 
 (King's Bench, 1701. 3 Salk. 194.) 
 
 The defendant was indicted at the sessions, for writing a scandal- 
 ous letter to one Mellith concerning a young woman whom he in- 
 tended to marry. Upon not guilty pleaded, he was found guilty; 
 and afterwards he brought a writ of error, and the error assigned 
 that this was a private letter, for which he was not punishable 
 hv way of indictment; or, if an indictment would lie, yet not before 
 the justices of the peace at their sessions. Scd per curiam, this is an 
 offense, and indictable before the justices in sessions, because it tends 
 \n tlw brj ach "i~ tin- peace. 3 
 
 i Accord: Re* v. Wbolston, 2 sir. 884 (1766); People v. Ruggles, s Johns, 
 (N. y.i 290, B V'ii Dec, 835 (1811); CJpdegrapb v. Commonwealth, H Serg. & 
 i: (Pa.) .".hi (1824). See, also, disturbing religious meeting, State v. Jasper, 15 
 N. C. 323 (1833); burning Bibles, Reg. \. Petcherlnl, 7 Cox, 0. 0. 79 (1856). 
 
 i Accord: Sending challenge i«> Eight, Rex v. Phillips, <"> Bast, 464 (1805).
 
 Sec. 5) OFFENSES AGAINST PUBLIC PEACE. 21 
 
 COMMONWEALTH v. HAINES. 
 
 (Supreme Court of Pennsylvania, 1824. 4 Clark, 17.) 
 
 This was a case removed by certiorari to the Supreme Court from 
 the mayor's court of Philadelphia, and tried before Gibson, J., at 
 nisi prius, in September, 1824. 
 
 The first count of the indictment charged that the defendant, de- 
 vising and intending to raise and create riots, etc., with the usual 
 averments, "unlawfully, wickedly, and maliciously incited, encour- 
 aged, and endeavored to provoke and instigate divers good citizens 
 of the commonwealth, whose names are to said inquest unknown," 
 etc., "to assemble and gather together to disturb the peace of the 
 commonwealth, and to injure and annoy said citizens, etc., and that 
 for that purpose, he, the said defendant, then and there erecting and 
 fixing a certain figure, resembling a man, commonly called a Paddy, 
 as and for the effigy of St. Patrick, and by these means, etc., did 
 collect together a large number of citizens, who behaved riotously 
 for a long space of time," etc. The remaining counts were for at- 
 tempts to produce riot generally, without specifying the means. It 
 appeared from the evidence that some time between dusk and 11 
 o'clock on the 16th of March, 1824, a stuffed Paddy, with the ac- 
 companiment of a rum bottle and a string of potatoes, was suspended 
 to a tree near the junction of Second street and Germantown Road, 
 in the district of Kensington, a neighborhood inhabited principally 
 by emigrants from Ireland. The figure remained in this position 
 until the next morning, when it was removed to prevent a disturb- 
 ance, which seemed likely to ensue. The defendant, an innkeeper 
 residing in that district, was proved by several witnesses to have 
 been in his house during the whole of the evening on which the 
 Paddy was erected, and a great deal of conflicting evidence was pro- 
 duced, which made his agency in the affair very questionable. The 
 averment in the indictment that the figure was intended as an effigy 
 of St. Patrick, and was meant and well calculated to excite the angry 
 feelings of the immediate population, was fully supported. It was 
 proved, also, beyond contest, that the defendant was concerned in 
 the exhibition on the 18th of March, of a female figure, commonly 
 called a Shelah, but with several features, beside that of sex, dis- 
 tinguishing it from a Paddy. Some evidence was offered to show, 
 also, that, while the exhibition of a Paddy was resented as an insult 
 upon the Catholic portion of the Irish, a Shelah was often displayed 
 as a retaliatory emblem, and may have been so meant in the present 
 case. A tumult ensued, the insult being spiritedly resented, and the 
 neighborhood was thrown into confusion thereby for several suc- 
 ceeding weeks. The defendant, it was conceded, was clearly con- 
 nected with the Shelah, though his instrumentality in the Paddy was 
 controverted.
 
 22 THE ELEMENTS OF CRIME. (Ch. 2 
 
 The jury having been addressed by Randall and Kittera for the 
 prosecution, and Biddle and D. P. Brown for the defense, were 
 charged substantially as follows, by 
 
 Gibson, J. The offense specified in the first count is clearly in- 
 dictable at common law. No man has a right to trifle with the 
 feelings of any large class of men, so as to provoke them to a breach 
 of the peace. If it is done by libel, no one doubts it is a misdemeanor. 
 If it is done by effigy, is it less so? Suppose the defendant had pub- 
 lished a picture of the same character and with the same tendency 
 as the figure which is the subject of the present offense; would it 
 not be held a libel? The gist of the offense is its tendency to pro- 
 voke a breach of the peace. It may be indiscreet in the Irish resi- 
 dents of the district to take notice of acts of the kind, but it is worse 
 than indiscreet in others to provoke them to do so. The facts are 
 with you exclusively. If you believe the allegation of the indictment 
 to be supported by the evidence, you will be bound to convict. 
 
 A verdict of acquittal was subsequently rendered. 
 
 Other acts indictable «t common law, as against the public peace, are: 
 
 riot. — "Which is defined to be: "A tumultuous disturbance of the peace, 
 by three persons or more assembling together of their own authority, with an 
 intent mutually to assist one another against any one who shall oppose them, 
 in the execution of some enterprise of a private nature, and afterwards ac- 
 tually executing the same in a violent and turbulent manner, to the terror 
 of the people, whether the act intended were of itself lawful or unlawful." 
 1 Hawk. P. C. (Curw. Ed.) 513. See Reg. v. Cunninghame, 16 Cox, C. C. 
 420 (1SS8). 
 
 Unlawful Assembly. — "Any meeting whatsoever of great numbers of 
 people, with such circumstances of terror as cannot but endanger the public 
 peace, and raise fears and jealousies among the king's subjects." 1 Hawk. 
 P. C. (Curw. Ed.) p. 51G, c 28. See Reg. v. Vincent, 9 Car. & P. 91 (1839). 
 
 Affray. — "The fighting of two or more persons in some public place, to 
 the terror of his majesty's subjects." 4 Bl. Com. 145. See State v. Sumner, 
 5 Strob. (S. C.) 53 (1850). 
 
 REX v. SMITH. 
 
 (King's Bench, 1725. 1 Strange, 704.) 
 
 The defendant was convicted on an indictment for making great 
 noises in the night with a speaking trumpet, to the disturbance of 
 the neighborhood, which the court held to be a nuisance, and fined 
 the defendant £5. r 
 
 i Compare Commonwealth v. Edwards, 1 Ash. 40 (1823); Commonwealth v. 
 
 Whit-, !> Pick. (Mass.) 1. L9 Am. Dec. 847 (1K2!>); Kilpntrick v. People. 5 Denlo 
 
 (N, y.i UT7 (1848); Henderson v. Commonwealth, 8 Gkrat (Va.) ton. nil Am. 
 
 L60 ns.vj); State v. Schlottman, 52 Mo. 164 (1873); Ware v. Loveridge, 
 
 t:, Mich. 488, 42 N. W. 907 (1889).
 
 SeC. 5) OFFENSES AGAINST PUBLIC PEACE. 23 
 
 COMMONWEALTH v. CRAMER. 
 
 (Court of Quarter Sessions of Dauphin, 1870. 2 Pears. 441.) 
 
 By the Court. The_defendant was charged, under the 154th sec- 
 tion of the Penal Code~(F.~X. 18G0, p. 419), with having willfully 
 and maliciously maimed, disfigured, and wounded a steer, the prop- 
 erty of Jonas C. Brinzer, and, having been convicted at the last ses- 
 sions, a motion was made for a new trial on account of misdirection 
 in the charge of the court and also in arrest of judgment. There is 
 no ground whatever for arresting the judgment, as the indictment is 
 good on its face. The only question is, was it properly supported by 
 the evidence, and was the jury rightly instructed as to the law of the 
 case? 
 
 It was proved on the trial that at the time of the injury the steer 
 was trespassing on the inclosed grounds of the defendant; had re- 
 peatedly jumped into his cornfield, and was destroying his corn; that 
 he was very troublesome, addicted to jumping, and what might be 
 called in common parlance "very breachy." The defendant shot him 
 many times with a gun heavily loaded with shot, at one time wrapping 
 up the charge and hitting him so severely that he fell to his knees, 
 but was able to run off and again jump the fence, which was low and 
 not in good order. The steer was neither maimed nor disfigured, but 
 was pretty severely "wounded" by the shots, and greatly fell away in 
 flesh. The court instructed the jury that the evidence did not bring 
 the case within the statute, but, if he was wounded as charged in the 
 indictment, it was a crime at common law, although concluding con- 
 tra formam statuti. The only question of any difficulty was whether 
 the act must be done out of malice towards the owner, or malice and 
 passion against the animal. There was no pretense that there was 
 any malice towards the owner in this case, as the parties were com- 
 parative strangers to each other and lived many miles apart. The 
 prosecutor's cattle were pasturing on an adjoining farm to the de- 
 fendant. 
 
 It is a little difficult to ascertain precisely what amounts tojnali- 
 cious mischief by the common law. Blackstone, in his Commentaries 
 (volume 4), says : "The act must be done either out of a spirit of wan- 
 ton cruelty, or black and diabolical revenge." One reason why we 
 find so little on the subject in the English writers on criminal juris- 
 prudence tending to show what amounted to this crime at common 
 law is that almost every possible injury to property was punished by 
 statutes, and the indictments have generally, and perhaps always, for 
 the last 200 years, been preferred under some one of the various acts 
 of Parliament. It may be conceded that in England it is settled that 
 the offense must be committed out of malice towards the owner of 
 the injured property, unless, perhaps, in cases of great and wanton 
 cruelty towards domestic animals. Even under their statutes it is
 
 24 THE ELEMENTS OF CRIME. (Cll. 2 
 
 held that there must be malice towards the owner. The worst acts 
 of cruelty committed through passion against the animal are not pun- 
 ished criminally. In this state, and perhaps in many others, our laws 
 have been construed differently. When our various acts passed to 
 protect property of any kind speak of malicious and willful injury 
 thereto, we are justifiable in saying that it applies to the forbidden 
 act, whether done out of malice toward the owner, or through a spir- 
 it of wanton mischief, especially if accompanied with cruelty. Where 
 malice is thus mentioned, it does not mean hatred or ill will, but im- 
 ports an evil disposition in general, a heart regardless of social duty. 
 Our Code is full of provisions protecting inanimate objects, as well 
 as animate, and we hold that they are equally protected from wan- 
 ton mischief, or from injury or destruction out of malice towards the 
 owner. Wharton, our best writer on Criminal Law in this state, says, 
 in volume 2, at page 2002 : "Malicious mischief in this country as a 
 common-law offense has received a far more extended interpretation 
 than has been attached to it in England." He defines it to be "any 
 malicious or mischievous injury, either to the rights of another or 
 those of the public in general." In Commonwealth v. Walden, 3 
 Cush. (Mass.) 558, it is said: "The jury must be satisfied that the 
 injury was done either out of a spirit of wanton cruelty or of wicked 
 revenge." In Massachusetts the distinction seems to be taken between 
 injuries done to animate and inanimate objects. In the latter there 
 must be malice towards the owner, whilst in the former wanton 
 cruelty is criminally punishable. It was held in that state to be indict- 
 able to poison cattle. Commonwealth v. Leach, 1 Mass. 59. 
 
 The subject has undergone considerable examination in the state of 
 Xew York. In People v. Smith, 5 Cow. (N. Y.) 258, "it is held to be 
 indictable to maliciously, wickedly, and willfully kill a cow." The court 
 speaks of the act being one of wanton cruelty, and that it cannot be 
 expected that a mind so depraved will be restrained by a mere liability 
 to pay damages. The perpetator may be insolvent, and thus gratify 
 his malice with impunity, if there is no redress other than by civil ac- 
 tion. The object is to protect the citizen in his right by restraining and 
 punishing the wrongdoer. Such acts discover a degree of moral 
 turpitude dangerous to society, and for its security ought to be pun- 
 ishable criminally. It is an evil example of the most pernicious tend- 
 ency, inasmuch as the act is an outrage upon the principles and feel- 
 ings of humanity. 
 
 In I, "Minis v. Edgerton, 1!> Wend. (N. Y.) 110, it was held to be 
 indictable to willfully, wickedly, and secretly break up a cutter, and 
 People v. Smith, r> Cow. (N. Y.) 258, is cited with approbation. The 
 judge, after stating that in many courts it had been held that such 
 offenses were not indictable, says he "is happy to find that the weight 
 of authority is the other way." "To say that it was not so would be 
 a sad exception to the general wisdom of the common law." At an 
 after time the courts of that state decided in Kilpatnck v. People, 5
 
 Sec. 5) OFFENSES AGAINST PUBLIC PEACE. 25 
 
 Denio, 277, that it was not indictable at common law to maliciously 
 break the windows of another's dwelling. If done secretly, it might 
 be otherwise. At the same time the court considers that a criminal 
 prosecution might be sustained for maliciously killing or wounding 
 domestic animals, as that shows depravity of mind and cruelty of dis- 
 position, and the cases in 1 Dall. (Pa.) 335, 1 L. Ed. 163, Respublica 
 v. Teischer, and 5 Bin. (Pa.) 277, Commonwealth v. Taylor, are 
 spoken of with approbation, as also that already cited from 5 Cow. 
 
 In State v. Briggs, 1 Aikens (Vt.) 22G, an indictment was sustain- 
 ed for cutting, maiming, and destroying colts. The judge says: 
 "When the most wanton cruelty to the beast is the grievance, we may 
 pass by the civil injury and treat the deed as a misdemeanor at com- 
 mon law. With force and arms to injure the property of another is 
 a civil injury, for which the owner of the property may have his ac- 
 tion of trespass. But the wounding and torturing a living animal, 
 not only with force and arms, but with all the malicious and wicked 
 motives and intentions set forth in this indictment, is a misdemeanor 
 •to be prosecuted by the judges." This case appears afterwards to 
 have been disregarded and overruled in that state, but in our opinion 
 is good law and sound morals. 
 
 In Pennsylvania we have perhaps gone further than in any other 
 state in punishing malicious mischief. As early as 1788, in Teischer's 
 Case, 1 Dall. 335, 1 L. Ed. 163, it was held indictable to maliciously, 
 willfully, and wickedly kill a horse, and McKean, C. J., says whatever 
 amounts to a public wrong may be made the subject of an indict- 
 ment. The poisoning of chickens, cheating with false dice, fraudu- 
 lently tearing a promissory note, and many other offenses of a sim- 
 ilar description have heretofore been indicted. Breaking windows 
 by throwing stones at them, embezzling public money, so for mali- 
 ciously killing a dog, for writing threatening letters to obtain money, 
 United States v. Ravara, 2 Dall. (Pa.) 297, Fed. Cas. No. 16,122, 1 L. 
 Ed. 388 ; girdling a tree growing on public ground, Commonwealth 
 v. Eckert, 2 Browne (Pa.) 249; so to enter the house of another, 
 make a great noise, and disturb and alarm the family (5 Bin.) ; to 
 be guilty of wanton cruelty to animals in general, United States v. 
 Logan, 2 Cranch, C. C. (U. S.) 259, Fed. Cas. No. 15,623; to put 
 cowitch on a towel to injure a person about to use it, People v. Blake, 
 1 Wheeler, Cr. Cas. (N. Y.) 490; to cut off the hair from the mane or 
 tail of a horse, Boyd v. State, 2 Humph. (Tenn.) 39; to discharge a 
 gun with intent to disturb a sick person, Commonwealth v. Wing, 9 
 Pick. (Mass.) 1, 19 Am. Dec. 347; so to destroy a line tree or other 
 landmark, or to set fire to a number of barrels of tar belonging to 
 another ; so to cast the carcass of a dead animal into a well in daily 
 use, State v. Buckman, 8 N. H. 208, 29 Am. Dec. 646. Most of these 
 cases are cited in 2 Wharton's Cr. Law, p. 2003. 
 
 In the case before us the owner of the cornfield could have had 
 ample redress for the injury done by the steer, had he proceeded un-
 
 26 THE ELEMENTS OF CRIME. (Ch. 2 
 
 der the law relating to estrays or by an action against the owner. In- 
 stead of pursuing a legal remedy, he resorted to acts of barbarity 
 which are themselves evidence of malice. Although we may, in pro- 
 nouncing sentence, take into consideration the provocation to anger 
 by the trespasses of the animal, yet we cannot avoid imposing some 
 punishment on the defendant for his violation of the criminal law. 
 
 SECTION 6.— OFFENSES AGAINST PUBLIC HEALTH. 
 
 REX v. TAYLOR. 
 
 (King's Bench, 1742. 2 Strange, 1167.) 
 
 The Court granted an information against him as for a nuisance, 
 on affidavits of his keeping great quantities of gunpowder, to the 
 endangering the church and houses where he lived. 1 
 
 REX v. VANTANDILLO. 
 
 (King's Bench, 1815. 4 Maule & S. 73.) 
 
 The defendant was indicted for carrying her child while infected 
 with the smallpox along a public highway. 
 
 Owen moved in arrest of judgment, that this was an indictment 
 of the first impression. He observed that the defendant was not 
 indicted for inoculating, or causing the child to be inoculated, with 
 an infectious disease; for it is not stated how the child came by it. 
 And it is consistent with this indictment that the child might have 
 caught the disease ; and, supposing it had, might not the mother carry 
 it through the street in order to procure medical advice without 
 being subject to be indicted for it? Therefore the indictment ought 
 to have shown that the act was unlawful, and ought also to have 
 alleged that there was some sore upon the child at the time when 
 it was so carried, by analogy to the writ "de leproso amovendo," which, 
 it seems, lay only for those who appeared to the sight of all men 
 by their voice and sores to be lepers, and not for those infected with 
 the disease, but not outwardly in their bodies. See Fitz. N. B. 534. 
 And if the merely alleging that the disorder is infectious and dan- 
 gerous to the subjects be sufficient, there is a multitude of diseases 
 
 1 Accord: Reg. v. Lister, Dears. & B. 200 (1856). Cf. Tonpie v. Sands, 1 
 Johns. r.\. y.) 78, 8 Am. Dec. 296 (1806). Obstructing navigable river, state 
 v. Thompson, 2 Btrob. (S. ('.) VI, IT Am. Dec. 588 (1847); obstructing high- 
 way, Reading v. Commonwealth, n Pa. 196, 51 Am. Dec. r.:;i (1849); main- 
 taining slaughter bouse near dwelling, Moses v. State, 58 [nd. 185 (1877).
 
 Sec. 7) OFFENSES AGAINST TRADE. 27 
 
 of which the same may be predicated, and consequently the patient 
 during the continuance of any such disease must never go abroad 
 at all, so difficult will it be to draw the line. The only offenses against 
 the public health of which Hawkins speaks are spreading the plague 
 and neglecting quarantine (Hawk. P. C. cc. 52, 53); and Lord Hard- 
 wicke, it appears, thought the building of a house for the reception of 
 patients inoculated with the smallpox was not a public nuisance, and 
 mentioned that upon an indictment of that kind there had lately been 
 an acquittal. And he added that the fears of mankind, though they 
 may be reasonable, will not create a nuisance (3 Atk. 750). 1 
 
 Le Blanc, J., in passing sentence, observed that although the court 
 had not found upon its records any prosecution for this specific of- 
 fense, yet there could be no doubt in point of law that if a person 
 unlawfully, injuriously, and with full knowledge of the fact, exposes 
 in" a public highway a person infected with a contagious disorder, 
 it is a common nuisance to all the subjects, and indictable as such. 
 However, the court was not disposed upon the present occasion to 
 impute to the defendant an intention of being the cause of the conse- 
 quences which had followed. Neither did they pronounce that every 
 person who inoculated for this disease was guilty of an offense, pro- 
 vided it was done in a proper manner, and the patient was kept from 
 the society of others, so as not to endanger a communication of the 
 disease. In such a case the law did not pronounce it to be an offense. 
 But no person having a disorder of this description upon him ought 
 to be publicly exposed, to the endangering the health and lives of 
 the rest of the subjects. 
 
 The defendant was sentenced to imprisonment in the custody of 
 the marshal for three calendar months. 2 
 
 SECTION 7.— OFFENSES AGAINST TRADE. 
 
 RESPUBLICA v. POWELL. 
 
 (Supreme Court of Pennsylvania, 1780. 1 Dall. 47, 1 L. Ed. 31.) 
 
 This was an indictment against the defendant, a baker employed 
 by the army of the United States, for a cheat, in baking 219 barrels 
 of bread, and marking them as weighing 88 pounds each, whereas 
 
 i The indictment, argument of counsel for the crown, and concurring opin- 
 ion of Ellenborough, C. J., are omitted. 
 
 2 Accord: Selling unwholesome food, Rex v. Dixon, 3 M. & S. 11 (1814) ; 
 throwing carcass into a well, State v. Buckman, 8 N. H. 203, 29 Am. Dec. 
 646 (1836); bringing horse infected with glanders into a public place, Reg. 
 v. Henson, 1 Dears. 24 (1852) ; selling unwholesome water, Stein v. State, 37 
 Ala. 123 (1861) ; circulation of false report tbat a kidnapper is in the neigh- 
 borhood, Commonwealth v. Cassidy, 6 Phila. (Pa.) 82 (1865).
 
 \ 
 
 28 THE ELEMENTS OF CRIME. (Ch. 2" 
 
 they only severally weighed GS pounds. The indictment being orig- 
 inally found at the city court, in October sessions, 1779, was removed 
 by certiorari into this court. 
 
 And now Lewis for the defendant, contended that false tokens 
 are only indictable by St. 33 Hen. VIII, c. 1, which has no operation 
 in Pennsylvania, and he cited 3 Burr. 1697; 1 Burn. 291; 2 Sess. 
 Ca. 2. 
 
 The Attorney General (Sergeant) insisted that the defendant's office 
 was a public trust, and cited 2 Burr. 1125; 1 Hawk. 187. 
 
 The Court said that this was clearly an injury to the public, and 
 the fraud the more easily to be perpetrated, since it was the custom 
 to take the barrels of bread at the marked weight, without weighing 
 them again. The public, indeed, could not by common prudence pre- 
 vent the fraud, as the defendant was himself the officer of the public 
 pro hac vice. They were therefore of opinion that the offense was 
 indictable. 
 
 STATE v. MIDDLETON. 
 
 (Court of Appeals of South Carolina, 1S38. Dud. 275.) 
 
 O'Neall, J., delivered the opinion of the court. 1 
 
 The indictment charges the defendant in three counts, as follows, 
 to wit: (1) That she did overreach. (2) That she did cheat. (3) 
 That she did defraud one Alexander L. Gregg of sundry articles of 
 property, by passing to him a promissory note on one L. G. Smith 
 and John Foxworth for $10, pretending that it was of that value, 
 and that the makers were in law liable to pay and would pay the same, 
 when she in fact knew that they were not liable to pay and would not 
 pay the same. This is the substance of the charges. 
 
 The first inquiry arises, is any offense at common law charged? I 
 think it is very clear there is not. It is a mere civil injury, for which 
 the party injured might have his remedy by action of deceit. It is 
 a mere false representation of a thing to be of value, which the 
 defendant knew to be valueless. There is in this no offense against the 
 public. It is in its consequences and effects confined to the parties 
 to the transaction, and thus at once shows that no prosecution at 
 common law can be sustained. The definition of a cheat at common 
 law. given by Russell, in his second volume (139), the fraudulent ob- 
 taining of property of another, by any deceitful and illegal practice 
 or token (short of felony) which affects or may affect the public, 
 seems to give, in general terms, the most proper notion of the offense 
 which I have been able to meet with. It has the support of the case 
 of Rex v. Wheatly, 2 Burr. 1125, in which the defendant was in- 
 dicted for selling 10 gallons of amber, when it had been represented 
 
 i Argument <>f counsel and pari of the opinion, construing the act of 1791, 
 are omitted.
 
 Sec. 7) OFFENSES AGAINST TRADE. 29 
 
 by him at 18 gallons, and sold accordingly; the defendant well 
 knowing that the true quantity was 16 gallons. It was held that this 
 was no offense, and that the judgment must be arrested. In that 
 case Lord Mansfield stated the rule to be that "the offense that is 
 indictable must be such a one as affects the public — as if a man uses 
 false weights and measures, and sells by them to all or many of his 
 customers, or uses them in the general course of his dealings ; so 
 if a man defrauds another under false tokens. For these are decep- 
 tions that common care and prudence cannot guard against." 
 
 It is therefore now necessary, in this connection, to inquire what 
 is a false token. It is somewhat difficult to define with precision, or 
 rather to describe, a false token in all cases. Taking the preamble of 
 the statute as our guide, we would say it must be something false, 
 and purporting to come from one not the bearer, and having in it- 
 self some private mark or sign, calculated to induce the belief that 
 it is real, and thus to cause the person to whom it is delivered to 
 part with his money or goods to the bearer or person delivering it. 
 On looking into 2 Russell, 1384, I find the definition which I have 
 given is substantially that which he approves. This would be enough 
 for this part of the case, for it is manifest that the note set out in the 
 indictment could not be a privy false token, according to the defini- 
 tion or description which has been given. But it may be well here 
 to notice what is meant by a false token at common law ; for it will, 
 perhaps, aid us in the view which we may have to take of this case 
 under the act of 1791. It seems to me that it is anything which has 
 the semblance of public authority, as false weights, measures, seals, 
 and marks of produce and manufactures, false dice, marked cards, 
 and things of a similar kind, false and deceptive, used in unlawful 
 games. 2 Russ. on Crimes, 1368. It is true, in looking into the 
 books, we find many cases of indictment in which fraud is an essential 
 requisite, as in cases of common cheat, forgery, and conspiracy ; and 
 some confusion has arisen from such cases being often spoken of 
 under the general head of cheats at common law, and therefore mingled 
 with the offense of cheating or swindling by false tokens. But each 
 of them constitutes an independent and distinct offense. 
 
 The motion in arrest of judgment is granted. 2 
 
 2 Accord: See, also. Commonwealth v. Warren, 6 Mass. 72 (1S09) ; Rex v. 
 Havnes. 4 M. & S. 214 (1815); Commonwealth v. Gallagher, 4 Pa. Law J. 
 58 (1844).
 
 f 
 
 V 
 
 
 »v ■ 
 
 30 THE ELEMENTS OF CRIME. (Ch. 2 
 
 SECTION 8.— OFFENSES AGAINST PUBLIC DECENCY. 
 
 BELL v. STATE. 
 
 (Supreme Court of Tennessee, 1S51. 1 Swan, 42.) 
 
 McKinney, J., delivered the opinion of the court. 
 
 The plaintiff in error was indicted and convicted in the circuit 
 court of Blount for the utterance of certain grossly obscene words 
 in public, and in the hearing of divers persons, in the town of Louis- 
 ville, in said county. The different words alleged to have been spoken 
 are set forth in three different counts. This was necessary to the 
 validity of the indictment, but we omit to repeat them here, because 
 of their extremely vulgar and offensive character. It is sufficient 
 to state that they relate to acts of criminal intercourse alleged by the 
 defendant to have taken place between him and the daughters of 
 Abraham Hartsell, and to a loathsome disease, said by the defendant 
 to have been contracted by him from the wife of Hiram Hartsell. 
 
 Two questions are presented for our determination: First, is the 
 utterance of obscene words, in public, an indictable offense? And, 
 if so, secondly, are the words proved sufficient to support the charges 
 in the indictment? 
 
 Upon the first point the argument for the plaintiff in error rests 
 upon the narrow and unsubstantial ground that no precedent or ad- 
 judication has been found in support of such an indictment. Ad- 
 mitting this to be true for the present, what does it establish? 
 
 If the case stated in the indictment falls within the operation of clear, 
 well-defined, and well-established principles of law, is it to be urged 
 against the maintenance of this prosecution that no similar case has 
 heretofore occurred calling for the like application of such principles? 
 Surely not, at this day. Are not innumerable instances to be found 
 in the modern Reports, both of England and America, in which the 
 liberal, enlightened, and expansive principles of the common law have 
 been adapted and applied to new cases, for which no precedents were 
 to be found, so as to meet the ever-varying condition and emergencies 
 of society? And this must continue to be so, unless a stop be put to 
 all further progress of society, and unless a stop be also put to the 
 further workings of depraved human nature, in seeking out new in- 
 ventions to evade the law. 
 
 What, then, are the well-established principles of the common law 
 applicable to the present case? 
 
 Thi inguished commentator on the laws of England informs 
 
 us that upon the foundations of the law of nature and the law of 
 
 lation all human laws depend. 1 Bl. Com. 42. The municipal law 
 
 looks to something more than merely the protection of the lives, the 
 
 liberty, and the property of the Deoole. Regarding Christianity as
 
 Sec. 8) OFFENSES AGAINST PUBLIC DECENCY. 31 
 
 part of the law of the land, it respects and protects its institutions, 
 and assumes likewise to regulate the public morals and decency of the 
 community. The same enlightened author (1 Bl. Com. 124) dis- 
 tinguishes between the absolute and relative duties of individuals as 
 members of society. He shows very clearly that, while human laws 
 cannot be expected to enforce the former, their proper concern is 
 with social and relative duties; municipal law being intended only 
 to regulate the conduct of men, considered under various relations, 
 as members of civil society. Hence he lays it down that, however 
 abandoned in his principles or vicious in his practice a man may be, 
 provided he keeps his wickedness to himself and does not offend 
 against the rules of public decency, he is out of the reach of human 
 laws. But, says the learned writer, if he make his vices public, though 
 they be such as seem principally to affect himself — as drunkenness, 
 or the like — they then become, by the bad example they set, of per- 
 nicious effect to society; and therefore it is then the business of hu- 
 man laws to correct them. See, also, 4 Bl. Com. 41, 42. 
 
 These principles have been fully recognized by this court. In the 
 case of Grisham and Ligon v. State, 2 Yerg. (Tenn.) 589, that thor- 
 ough common lawyer, the late Judge Whyte, declared that "the com- 
 mon law is the guardian of the morals of the people, and their pro- 
 tection against offenses notoriously against public decency and good 
 morals." And he adds, in another part of the same opinion : "We 
 have the express authority of the common law, as declared by the 
 judges in the courts of justice, that all offenses against good morals 
 are cognizable and punishable in the temporal courts that are not 
 particularly assigned to the spiritual court." 
 
 The books of reports, both of England and this country, abound 
 with cases where, upon these principles of the common law, con- 
 victions have been enforced for various offenses against public mo- 
 rality and decency, without the aid of any statutory enactment. 
 And surely it can be no reason for the relaxation of these salutary 
 principles, but rather the contrary, that in this country we have no 
 "spiritual court," to lend its aid in the suppression of the numerous 
 offenses falling within the class now under consideration, and that 
 such of them as cannot be reached in the mode pursued in the case 
 before us must "go unwhipped of justice." 
 
 It would be tedious to enumerate the cases in which offenses have 
 been held indictable as contra bonos mores. A few will suffice for 
 the present purpose. Public drunkenness, 4 Bl. Com. 41. All in- 
 decent exposure of one's person to the public view, Id. 65, note 25. 
 In the case of Rex v. Crunden, 2 Campb. 89, 1 Russ. on Crimes, 302, 
 it was held an indictable offense to bathe in the sea near inhabited 
 houses, from which the person might be seen, although the houses 
 had been recently erected, and previously thereto it had been used 
 for persons in great numbers to bathe at such place. And it was so 
 held for the reason "that, whatever place becomes the habitation of 
 civilized men, there the laws of decencv must be enforced."
 
 32 THE ELEMENTS OF CRIME. (Ch. 2 
 
 These adjudications, without citing others, we think furnish an- 
 alogies sufficiently strong to sustain the present prosecution. Are 
 the outrageously yulgar and obscene words found in this record, if 
 uttered in the ear of the public, less likely to shock any one's sense 
 of decency, and to corrupt the morals of society — not to speak of 
 their inevitable tendency to provoke violence and bloodshed — than 
 the offenses charged in the several adjudicated cases above cited? It 
 does not so appear to us. But, were there no analogy to be drawn 
 from any decided case, we hold that, upon the broad principles of the 
 common law which we have stated, this prosecution is most amply 
 sustained. Thus fortified by, sound principles — principles which lie at 
 the foundation of every well-regulated community — (and resting on 
 a basis so immutable) we are the more indifferent as to precedents 
 exactly in point. 1 
 
 Let the judgment be affirmed. 2 
 
 STATE v. WILLIAMS. 
 
 (Superior Court of Tennessee, 1S08. 2 Over. 10S.) 
 
 Indictment in the county court for eavesdropping. Appeal to this 
 court, and the only question was whether such a prosecution can be 
 maintained. 
 
 It was insisted for the defendant, first, that there was no statute of 
 the state upon the subject; second, that the act which adopted the 
 laws of England confined such adoption to such as are consistent with 
 our mode of living. St. 1715, c. 31, § 5. No precedent can be 
 found of such an indictment, which furnishes a strong inference that 
 such a prosecution was not conformable to the principles of our gov- 
 ernment, or modes of living. 
 
 By the Court (Powell, J., and Overton, J., absent) — Campbell. 
 J. Agreeably to the common law, such an indictment well lies, and 
 nothing can be seen in this part of it which is inconsistent with our 
 situation, or, in fact, the situation of any society whatever. 3 
 
 i Part of the case is omitted. 
 
 • Accord: Parker v. Commonwealth, 10 Pa. -112 (1852); State v. Appling, 
 •^, Mo. 315, ''.'■> Am. Dec 469 (1857); exhibition of Indecent picture, Com- 
 monwealth v. Sharplese, 2 Berg. & R. (Pa.) 91, 7 Am. Dec. 632 (1815); in- 
 decent exposure of person, Pritaln v. State, :; Humph. (Tenn.) 203 (1842); 
 Commonwealth v. Spratt, n Phila. (Pa.) 368 (1880); cf. Reg. v. Watson, 2 
 Cox, 0. C. 376 (1847); oighl walking, State v. Dowers, 45 X. TT. 543 (1864); 
 Ing '-' >i 1 1 1 1 ■• >i i gaming imus.'. People \. Jackson, :'• Denio (N. T.) 101, 45 
 Am. Dec. 449 (1846); exhuming body for dissection, Rex v. Lynn, 2 T. R. 
 t:::: (1788); sodomy, Commonwealth v. Thomas, l Va. <";is. 307 (1S12); keep- 
 in- or leasing bouse for Immoral purposes, People v. Brwln, i Denio (N. v.i 
 129 (1847); compare Commonwealth v. Linn, 158 Pa. 22, 27 Ail. 848, 22 
 I., l; A 353 I I 
 
 » Accord: Common scold, James v. Commonwealth, 12 Serg. & R. (Pa.) 
 L825); Commonwealth v. Lovett, 6 Pa. Law J. 226 (1831); State v. Pen- 
 nington, .". Head (Tenn.) 299, 75 Am. Dec. 771 (1859).
 
 Sec. 8) OFFENSES AGAINST PUBLIC DECENCY. 33 
 
 ANDERSON v. COMMONWEALTH. 
 
 (General Court of Virginia, 182G. 5 Rand. 627. 16 Am. Dee. 776.) 
 
 The indictment against the plaintiff in error contained two counts, 
 the first of which charged that he, being a married man, on the 22d 
 November, 1825, in the said county of Chesterfield, one Elizabeth 
 F. Hargrove, a maiden and unmarried, and under the age of 21 years, 
 that is to say, of the age of 16 years 2 months 19 days, having no 
 father living, and being then and there under the care and custody of 
 Elizabeth Hargrove, a widow, her mother, did entice, inveigle, take, 
 and carry away from the care and custody of her said mother, for the 
 purpose of prostituting and carnally knowing her, the said Elizabeth 
 F., against the peace and dignity of the commonwealth. The second 
 count in like manner charges him with the enticing, inveigling, taking, 
 and carrying away the said infant over the age of 16 years, and, 
 moreover, charges that he did, on a subsequent day, deflower, car- 
 nally know, and prostitute her, the said Elizabeth F. Hargrove, 
 against the peace and dignity of the commonwealth. 
 
 Dade, J., delivered the opinion of the court. 
 
 The question is whether the offense of which the plaintiff has been 
 convicted, and had judgment, is a misdemeanor, punishable by indict- 
 ment at the common law. 
 
 The class of misdemeanors within which it is insisted this offense 
 is comprehended is that of offenses contra bonos mores, over which the 
 Court of King's Bench in England, and the superior courts of law of 
 this commonwealth, have always claimed to have jurisdiction. It is 
 admitted that before the statute of circumspecte agatis (St. 13 Ed- 
 ward I), the Court of King's Bench did on this principle punish the of- 
 fense of incontinency, and that by that statute the jurisdiction was 
 transferred to the ecclesiastical courts. It may be well doubted wheth- 
 er the King's Bench before the statute, or the Courts Christian since, 
 looked beyond the simple fact of incontinence, as that offense is at 
 present contemplated and punished by our own acts of assembly; in 
 other words, whether they looked beyond the mere offense of incon- 
 tinence, as consisting in the single act of cohabitation between per- 
 sons of different sexes without the rites of marriage, not varied by 
 any fraud, deception, or inveiglement which may have been practiced 
 by the man. But after the statute of circumspecte agatis the Court of 
 King's Bench did not exercise jurisdiction in punishing the mere act 
 of incontinence. It, however, retained its general power of punishing 
 offenses contra bonos mores, and it is presumed might have punished 
 an offense of incontinence, combined with circumstances which, be- 
 yond the mere criminality of the simple fact, were calculated to make 
 it injurious to society, as in case of incontinence in a street or highway. 
 But in such cases the jurisdiction would not spring from the criminal 
 character of the simple fact, but from its publicity; as there are many 
 Mik.Cr.L.— 3
 
 34 THE ELEMENTS OF CRIME. (Ch. 2 
 
 cases where an act, which is not criminal in private, becomes penal by 
 the publicity which attends it perpetration. The act of Sir Charles 
 Sedley in running naked through the streets derived its whole crim- 
 inality from its publicity. It is not, therefore, in this case allowable to 
 connect the criminality of the mere act of incontinence, which, as such, 
 is punishable in a certain mode prescribed by the statute, with the 
 particular circumstances of fraud and deception, and the special in- 
 jury to the female, so as to make the supposed common-law offense 
 (as the courts might entertain it in England, since the statute of cir- 
 cumspecte agatis) derive support, or even acquire being, from the stat- 
 utory offense. If the statutory misdemeanor of simple incontinence 
 is to be punished, it must be according to the statute. If there be other 
 circumstances in the case which entitle the common-law courts to ju- 
 risdiction, those circumstances must of themselves constitute a misde- 
 meanor. By these principles the only two reported cases in the Eng- 
 lish books are to be tested. The case of Rex v. Lord Grey and Oth- 
 ers, 9 State Trials (Cobbet's Ed.) 127, was that of an information al- 
 leging a conspiracy to take away and debauch a maiden over the age 
 of 16 and under 21, and an accomplishment of the act by those means. 
 This conspiracy is emphatically charged in the information, and as it 
 was to do a wrongful act, for which, certainly, if done, an action lay 
 to the father of the maid, the conspiracy, if proved, clearly amounted 
 to a common-law misdemeanor. So, in the Case of Sir Francis Blake 
 Delaval and Others, 3 Burr. 1432, which was "a. motion for an infor- 
 mation against the defendants for a conspiracy to put a young girl in- 
 to the hands of a gentleman of rank and fortune, for the purpose of 
 prostitution," although Lord Mansfield, in allowing the motion, in- 
 timates an opinion that the Court of King's Bench might have juris- 
 diction of the case, as one contra bonos mores, yet he decides it on the 
 ground that there was in that case "a conspiracy and confederacy," 
 which, says he, " are clearly and indisputably within the proper juris- 
 diction of this court." Without doubt, in these cases, the court hav- 
 ing jurisdiction of them on undeniable common-law principles, the 
 punishment in case of conviction might well be aggravated by the base- 
 ness, perfidy, or malignity, which was the motive and end of the con- 
 spiracy. In like manner, as in trespass, circumstances may aggravate 
 the damages, which would not of themselves alone support the action. 
 Bui clearly neither of these cases docs maintain the position that, as 
 a common-law misdemeanor, an indictment or information will lie, 
 cither for simple incontinence, or for incontinence produced by means 
 of deception, inveiglement, or enticement; in other words, by seduc- 
 tion. 
 
 It is too late now to assume jurisdiction over a new class of cases, 
 under the idea of their being contra bonos mores. We must consicIBr 
 the practice of the English courts; from which we derive the principle, 
 a having settled in the course of many centuries the true limits and 
 proper subjects of this principle. If we are to disregard these land-
 
 Sec. 8) OFFENSES AGAINST PUBLIC DECENCY. 35 
 
 marks, and take up any case which may arise under this principle as 
 res integra, then might it be extended to cases which none has yet 
 thought of as penal. A case of slander may display as much baseness 
 and malignity of purpose, as much falsehood in its perpetration, as 
 ruinous effects in its consequences, and as pernicious an example in its 
 dissemination, as this case of seduction. And yet none would think of 
 prosecuting it criminally. It is true that if something peculiar in our 
 situation had given rise to a class of cases contra bonos mores, as in 
 regard to our slaves, which could not have existed in England, we 
 might be justified in applying the rule in the absence of all precedent. 
 But in relation to seduction no such supposition can be made, as we 
 know from the books of Reports that many such cases have occurred 
 there. And we even see that in two cases it was in fact the prominent 
 feature, and yet the jurisdiction in one of them was made to hang on an- 
 other hinge, and in the other, which was never decided, was certainly 
 fortified by the allegation and proof of a common-law misdemeanor. 
 
 From these premises it would seem to be proper to infer that, since 
 the statute of circumspecte agatis, in England, the common-law courts 
 have never taken jurisdiction of the mere offense of incontinence, nor 
 of any offense of incontinence combined with other reprehensible cir- 
 cumstances, not in themselves importing a common-law misdemeanor ; 
 that in this country the Legislature has taken up the subject of simple 
 fornication and adultery, and has defined a precise mode of proof, and 
 a fixed and certain punishment ; that there is no reason to believe that 
 these statutes are cumulative, but that they occupy the whole ground; 
 and that, as in England, the offense, being merely spiritual, is not un- 
 der any circumstances allowed to be the foundation of a criminal prose- 
 cution in the courts of common law ; so here, by parity of reasoning, 
 the offense being entirely statutory, it shall not be converted into the 
 foundation of a common-law misdemeanor. 
 
 If these premises and deductions be true, we must throw out of this 
 case the statutory criminality of the mere act of incontinence, and then 
 we cannot support the indictment, unless the other circumstances 
 amount to a common-law misdemeanor. If they had made out a case 
 of conspiracy, that desideratum would have been supplied. But it is 
 not found in the artifices and contrivances which may have been used 
 in alluring the female from the path of virtue and the home of her par- 
 ent. 
 
 For these reasons, the court is of opinion that the judgment of the 
 superior court of Chesterfield be reversed, and, this court proceeding 
 to give such judgment as the said superior court ought to have render- 
 ed, it is further considered that of the offense of which the said Samuel 
 Anderson hath been indicted, and convicted, he be acquitted and dis- 
 charged, and that he go thereof without day. 1 
 
 i Accord: State v. Branson, 2 Bailey (S. C.) 149 (1831); State v. Cooper, 
 16 Vt. 551 (1S44). Cf. State v. Cagle. 2 Humph. (Tenn.) 414 (1841).
 
 36 THE ELEMENTS OF CRIME. (Ch. 2 
 
 J 
 
 
 SECTION 9.— EFFECT OF CONSENT, CONDONATION, 
 
 • ETC. 
 
 I. Consent of the Person Injured. 
 
 STATE v. BECK. 
 
 (Supreme Court of South Carolina, 1833. 1 Hill, 3G3, 2G Am. Dec. 100.) 
 
 Tried before Mr. Justice Richardson, at Pickens, fall term, 1833. 
 
 Indictment for an assault and battery. The defendants were all ac- 
 quitted, except William Beck. The facts were these: One of the 
 defendants had lost leather, and, suspecting it was stolen, got Beck 
 and the other defendants to aid him in the search. They found the 
 leather on the premises of Noble Anderson, and immediately took him 
 into custody — whether under warrant or not, did not appear. Whilst 
 in this state, some one, not Beck, asked Anderson if he would not 
 rather be whipped than go to jail. He replied he would, and then rgr_ 
 quested Bec k to whip him. Beck at first hesitated, but finally at the 
 earnest entreaty of Anderson, and saying, "If it will oblige you, I will 
 do it," consented; and, Anderson putting his arms around a tree, he 
 gave him a few stripes with a switch. Anderson was then released, 
 but was afterwards prosecuted, convicted, and punished for stealing 
 the leather. Under these circumstances the presiding judge charged 
 the jury that Beck was clearly guilty, and they found accordingly. Pie 
 now moves for a new trial, on the ground that the whipping, having 
 been inflicted at the importunity of Anderson and against the inclina- 
 tion of the defendant, was not an assault and battery. 
 
 Harper, J. We do not think the act in question amounts to an as- 
 sault and battery on the part of defendant Beck. A battery is general- 
 ly deilned to be any injury done to the person of another in a rude, in- 
 solent, or revengeful way. There is also another class of cases where 
 some degree of negligence may be imputed ; as when a person throw- 
 ing stones into the highway strikes another passing, or as in the in- 
 stance of a person throwing a lighted squib intoli crowd. But when 
 there is no intention to injure and no negligence, I do not think 
 the off< use can be imputed. An instance commonly put is that of a 
 soldier tiring his piece at muster, and without any fault of his own in- 
 juring another casually and suddenly passing before it. A surgeon, 
 who for his patient's health, cuts off a limb, is not guilty of mayhem; 
 or, if one plucks a drowning man out of a river by the hair of his head, 
 this is no assault. If, according to the prescription of the physician in 
 the Arabian Nights, a physician should beal his patienl with a mallet 
 for tli-- bona fide purpo e of restoring his health, though this mighl be 
 malpractice, it would be no batter)'. Where one gave another a license
 
 
 r 
 
 
 ,*jysud 
 
 .J& &A ft 
 
 31 
 
 ff* «tW oft *» "7 •* ' r" 2-t-j.if ofrJr °- 

 
 J
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 37 
 
 to beat him, there is a case in which it is said the license was held void.' 
 This may well be. The person receiving the license entertained hos- 
 tile dispositions toward the other, and, upon being thus licensed, 
 proceeded to carry his revengeful purpose into effect. But in the case 
 before us the defendant had no evil dis position tow ard Anderson— bu4- 
 the contrary; and at his o wn earnes t request, and. tasaveJiim f rom- 
 what he considered a ~great er evil, reluctantly consented to infh'ct-ihe 
 stripes. However ill-judg-ed-the act may ha ve been, _I_cannpt t hink it 
 _constituted an assaujt jind-battery. The case mighT be different with 
 respect to the other defendants, who were acquitted; but as to the de- 
 fendant before us the motion for a new trial must be granted. 
 Johnson and O'Neall, JJ. concurred. 
 
 CHAMPER v. STATE. 
 
 (Supreme Court of Ohio, 18G3. 14 Ohio St. 437.) 
 
 Error to the Court of Common Pleas of Carroll County. 
 
 By the Court. Held, an indictment against A. for an assault 
 and battery upon B. is not sustained by evidence that A. assaulted and 
 beat B. in a fight at fisticuffs, by agreement between them. 
 
 An assault and battery and an affray are distinct offenses under the 
 statute, punishable by different penalties. 1 
 
 Judgment reversed and cause remanded. 
 
 REGINA v. CONEY. 
 
 (Queen's Bench Division, 1SS2. 8 Q. B. Div. 534.) 
 
 Hawkins, J. 2 At Ihe Berkshire October Quarter Sessions, 1881, 
 the defendants were convicted under the direction of Mr. Benyon, the 
 chairman, upon two counts of an indictment. One charged them with 
 an assault upon Charles Mitchell, the other with an assault upon John 
 Burke ; Mitchell and Burke being the combatants in a fight which took 
 place at Ascot, on the 16th o*f June, 1881. The facts are fully set forth 
 in the case reserved for the opinion of the Court of Criminal Appeal. 
 
 Two questions were argued before us : First, whether the combat- 
 ants were guilty of assaults upon each other; and, secondly, whether 
 the defendants were aiders and abettors in the fight, and therefore also 
 rightly convicted. Upon the first question the defendants' counsel 
 contended that, each of the combatants having assented to the fight, 
 
 * Accord: Duncan v. Commonwealth, 6 Dana (Ky.) 295 (1S3S). 
 
 2 Part of the opinion, relating to another point, is omitted, as are also 
 the concurring opinions of Cave, Matthew, Stephen, Manisty, Pollock, and 
 Denman, JJ., and Coleridge, C. J.
 
 38 THE ELEMENTS OF CRIME. (Ch. fc 
 
 neither could be convicted of an assault upon the other. To this con- 
 tention I cannot give my sanction. As a general proposition it is un- 
 doubtedly true that there can be no assault unless the act charged as 
 such be done without the consent of the person alleged to be assaulted, 
 for want of consent is an essential element in every assault, and that 
 which is done by consent is no assault at all. Christopherson v. Bare, 
 11 Q. B. 473; Reg. v. Guthrie, L. R. 1 C. C. R. 241, 243, and numer- 
 ous other cases. It may be that consent can in all cases be given so 
 as to operate as a bar to a civil action, upon the ground that no man 
 can claim damages for an act to which he himself was an assenting 
 party. Christopherson v. Bare. That case, however, was decided upon 
 a point of pleading, and must not be considered as a direct authority 
 on this subject. It is not necessary, however, upon the present occa- 
 sion, to express any decided opinion upon the point; for, whatever 
 may be the effect of a consent in a suit between party and party,. it is 
 not in the power of any man to give an effectual consent to that which 
 amounts to, or has a direct tendency to create, a breach of the peace , 
 so as to bar a criminal prosecution. In other words, though a man 
 may by his consent debar himself from his right to maintain a civil ac- 
 tion, he cannot thereby defeat proceedings instituted by the Crown in 
 the interests of the public for the maintenance of good order. Per 
 Burrough, J., in Rex v. Belingham, 2 C. & P. 234. He may compro- 
 mise his own civil rights, but he cannot compromise the public interests. 
 Nothing can be clearer to my mind than that every fight, in which 
 the object and intent of each of the combatants is to subdue the. other 
 bv violent blows, is, or has a direct tendency to, a breach of the peace, 
 and it matters not, in my opinion, whether such fight be a hostile fight 
 begun and continued in anger, or a prize fight for money or other, ad- 
 vantage. In each case the object is the same, and in each case some 
 amount of personal injury to one or both of the combatants is a prob- 
 l able consequence, and, although a prize fight may not commence in an- 
 ger. it is unquestionably calculated to rouse the angry feelings of both 
 fore its conclusion. I have no doubt, then, that every such fight is 
 illegal, and the parties to it may be prosecuted for assaults upon each 
 her. Many authorities support this view. In Rex v. Ward, 1 East. 
 P. C. 270, theprisoner was tried for the slaughter of a man whom he 
 had killed in a fight to which he had been challenged by the deceased for 
 public trial of skill in boxing. No unfairness was suggested, and yet 
 it was held that the prisoner was properly convicted. To the same 
 effect is the rase of Reg. v. Lewis, 1 C. & K. 410, in which Coleridge, 
 j., said : "When two persons go out to strike each other, each is guilty 
 of an assault." See, all i », Reg. v. I hint, 1 Cox, C. C. 177, per Alderson, 
 B.; Reg. v. Brown, 1 C. & M. 31 I. by the same learned Baron; and 
 by Bramwell, B., in Reg. v. Young, in Cox, C. C. 371. 
 
 The cases in which it has been held that persons may lawfully en- 
 gage in friendly encountei not calculated to produce real injury. Or 
 to cause angry passions in either, do not in the least militate against
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 39 
 
 the view I have expressed; for such encounters are neither breaches 
 of the peace, nor are they calculated to be productive thereof. But if, 
 under color of a friendly encounter, the parties enter upon it with, or 
 in the course of it form, the intention to conquer each other, by vio- 
 lence calculated to produce mischief, regardless whether hurt may be 
 occasioned or not, as, for instance, if two men, pretending to engage 
 in an amicable spar with gloves, really have for their object the inten- 
 tion to beat each other until one of them be exhausted and subdued by 
 force, and so engage in a conflict likely to end in a breach of the peace, 
 each is liable to be prosecuted for an assault. Reg. v. Orton, 39 L,. T. 
 293. Whether_an_ encounter be of the character I have just referred 
 to, or a mere friendly game, having no tendency, if fairly played, to 
 produce any breach of the peace, is always a question for the jury in 
 case of an indictment, or the magistrates in case of summary proceed- 
 ings. 
 
 The cases cited of alleged indecent assaults on young children by 
 their consent are no authorities to the contrary, and may all be dis- 
 posed of in this one observation, viz., that the indecent impositions of 
 hands charged in those cases as assaults neither involved, nor were 
 calculated to involve, breaches of the peace, and therefore, being by 
 consent, were not punishable as assaults, any more than they would 
 have been had the objects of them been for the most innocent purposes. 
 I think it wholly immaterial in considering cases of this description to 
 inquire by whom the first blow was struck, for, as was said by Lindley, 
 J., in Reg. v. Knock, 14 Cox, C. C. 1, "the right of self-defense does 
 not justify counter blows struck with a desire to fight." 
 
 Upon the ruling of the chairman as to the illegality of the fight, I 
 entertain, therefore, no manner of doubt, and I am clearly of opinion 
 that the combatants themselves were each guilty of an assault upon 
 each other. 2 
 
 BARTELL v. STATE. 
 
 (Supreme Court of Wisconsin. 106 Wis. 342, 82 N. W. 142.) 
 
 Error to review a judgment rendered on a conviction of the plain- 
 tiff in error, King Bartell, of the offense of assault and battery. Bar- 
 tell claimed to be a magnetic healer, in the regular practice of his pro- 
 fession. He treated a young girl, about 18 years of age, the person 
 upon whom the offense was committed, at her request and with the 
 sanction of her father. The girl was ignorant of what was necessary 
 on her part in receiving the massage treatment, which was Bartell's 
 method of operating. She was afflicted with some nervous trouble. 
 Bartell went into a room with her, caused her to remove all of her cloth- 
 
 2 Accord: Commonwealth v. Collberg, 119 Mass. 350, 20 Am. Rep. 328 
 (1875); State v. Burnhnm, 56 Vt. 445, 48 Am. Rep. SOI (1SS4) ; State V. 
 Newlaud, 27 Kan. 704 (1882). 
 
 TV JL 
 
 ■■ 

 
 40 THE ELEMENTS OF CRIME. (Ch. 2 
 
 ing, and then, while her naked body was wholly exposed to his view, he 
 gave her a massage treatment lasting some 15 minutes. The evidence 
 tended to show that after the treatment aforesaid Bartell caused the 
 girl to sit on his lap and that he took some indecent liberties with her. 
 
 Marshall, J. 1 Some criticism is made of the instructions given 
 to the jury, but we are unable to discover any harmful error in them. 
 The jury were told, in substance, and in language that could not rea- 
 sonably have been misunderstood, that if Bartell treated his patient 
 in good faith, for the purpose of curing the disease with which she 
 was supposed to be afflicted, and in good faith caused her to expose 
 her body to his view for the purposes of such treatment, his conduct 
 did not constitute the offense of assault and battery; but if. on th g_oth- 
 er hand, he needlessly caused such patient to expose her person to his 
 view for his evil purposes, and she submitted because of her ignorance, 
 and under those circumstances and for such purpose he secured the 
 opportunity of laying his hands upon her body, he was guilty of the 
 offense of assault and battery. There was no error in the charge so 
 understood. 
 
 The judgment of the municipal court is affirmed. 2 
 
 SPEIDEN v. STATE. 
 
 (Court of Appeals of Texas, 1877. 3 Tex. App. 156, 30 Am. Rep. 126 ) 
 
 Burglary. 
 
 White, J. 8 As disclosed in the record, the facts are substantially 
 as follows : 
 
 Pinkerton's Detective Agency, at Chicago, 111., obtained, by some 
 means, a number of letters and postal cards written by the defendant 
 from Dallas, to a friend in Chicago, urging him to come to Dallas and 
 join him in breaking into and robbing some of the banks in the latter 
 city. It appears that Pinkerton forwarded those letters to John Kerr, a 
 banker of Dallas, who immediately called a meeting of the bankers of 
 the city and submitted the matter to them. The result of this meeting 
 was that the bankers requested Pinkerton to send a detective to Dallas to 
 
 i Part of this case Is omitted. 
 
 2 Accord: Rea v. Rosinski, 1 Moody, i:> (1824). In England, on indictments 
 for the carnal knowledge of female children or for Indecenl assaults, tin' 
 i,i of Hi-' child is held to be a defense. Reg. v. Martin, 9 0. & P. 213 
 (1839). In tim United States, generally, a different doctrine prevails. Singer 
 x People, L3 Hun in. v.) -us (1878); Commonwealth v. Roosnell, 143 Mass 
 wi, s ,\. BL tit (1886); People v. Stewart, 86 Cal. 174, -I Pac. T'JU (1890). 
 But mere submission is not consent Reg. v. Day, 9 G. & P. 722 (1841); 
 i. ■ v. Lock, 2 ( !r. Cas. Res. in (1872). 
 
 when consent is held to be n Justification, force in malicious excess <>r 
 the consent will take away lis Justifying effect Richie v. state, OS Ind, 
 i isTT;. 
 
 » Only so much of the opinion as relates to consent Is printed.
 
 I *\w -W 'AcUx^W w r^T^'^J T ~ -A4 * 
 
 / /<?, 

 
 f. 
 
 I 
 
 I 
 II 
 
 tl
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 41 
 
 work up the case. Deroso, a sergeant of Pinkerton's force, carrie, and, 
 after an interview with the bankers, sent back to Chicago for Wood and 
 McGuire, two detective aids who were to represent themselves to the 
 defendant as professional burglars and induce him to enter some bank 
 building in the nighttime, when they would procure his arrest. 
 
 After the arrival of Wood and McGuire they set to work to carry 
 out .this plan, keeping in constant communication with Deroso, and, 
 through him, with the bankers, who were kept constantly informed 
 as to the plans and movements of the parties. Finally it was agreed 
 on all hands that the banking house of Adams & Leonard should be 
 broken into on Sunday night. Adams & Leonard agreed to the ar- 
 rangement, and the detectives were> in the adventure, working in their 
 emplo y. 
 
 Pursuant to the plan agreed upon, Deroso, Hereford, a deputy sher- 
 iff of Dallas county, a Mr. Mixon, United States deputy marshal, and 
 another party entered and took possession of the bank during the day- 
 time, about 2 or 3 o'clock on Sunday, to remain therein until the burg- 
 lary was effected and the defendant was arrested. About 1 o'clock at 
 night the back door of the bank was forced open b^_th^twp_delec4iv€s, 
 Wood and McGuire, who came in, spoke to the concealed parties, and 
 went into the vault, when, after remaining about an hour, Wood went 
 out, told Speiden, the defendant, that they wanted more help, and re- 
 turned in a short time, and, coming in, closed the door after him. In 
 a minute or two Speiden came in and closed the door, when the officers 
 arrested him. 
 
 Now, as to the law of the case : To our minds it is clear that Deroso 
 and the other detectives were the servants and agents of Adams & 
 Leonard, and had full authority to consent to defendant's entry into 
 the bank, and that his entry was not only with their consent, but at their 
 solicitation. The case is somewhat like that of a man being robbed by 
 his own consent, although the supposed robbers did not know of the 
 consent. Reanes' Case, 2 East, 734; McDaniel's Case, Fost. 121. 
 
 In Tennessee, where the prisoner had arranged with a negro, dur- 
 ing the days of slavery, to steal him, and the negro informed his mas- 
 ter, who told him to carry out the agreement between the prisoner and 
 himself, which was done, and the prisoner was arrested in the act, it 
 was held that, to constitute larceny of a slave, it must appear that the 
 accused had possession of the slave, and that the possession was ob- 
 tained without the consent of the owner. Kemp v. State, 11 Humph. 
 (Tenn.) 320. 
 
 Mr. Bishop says: The cases of greatest difficulty are those in 
 which one, suspecting crime in another, lays a plan to entrap him. 
 Consequently, even if there is a consent, it is not within the knowledge 
 of him who does the act. Here we see * * * that, supposing the 
 consent really to exist, and the case to be one in which, on general 
 doctrines, the consent will take away the criminal quality of the act, 
 there is no legal crime committed, though the doer of the act did not
 
 42 THE ELEMENTS OF CRIME. (Ch. 2 
 
 know of the existence of the circumstances which prevented the crim- 
 inal quality from attaching. * * * A common case is that of 
 burglars who, intending to break into a house and steal, tempt the 
 servant of the occupant to assist them, and the servant, after communi- 
 cating the facts to his master, is authorized to join them in appearance. 
 Under such circumstances, clearly, the burglars are not excused for 
 what they do personally ; but it seems, if the servant opens the door 
 while they enter, they are not held criminal for this breaking thus done 
 by the servant, acting under command of the occupant of the house 
 broken." 1 Bishop's Cr. Law, § 262. See, also, section 263. 
 
 The case of Regina v. Johnson and Jones, 1 Car. & M. (41 Eng. C. 
 L. R.) 123, is in point. In that case the court say : "Cole, the groom, 
 it is true, appeared to concur with the prisoners in the commission of 
 the offense. But in fact he did not really concur with them, and he, act- 
 ing under the direction of the police, must be taken to have been acting 
 under the direction of Mr. Drake the prosecutor. Under the circum- 
 stances of this case the prisoners went into a door which, it seems to 
 me, was lawfully open. Therefore neither of them was guilty of bur- 
 glary." 
 
 In Eggington's Case, which is also in point, it was held "that no 
 felony was proved, as the whole was done with the knowledge and as- 
 sent of Mr. Boulton, and the acts of Phillips (the servant) were his 
 acts." 2 East, 666. 
 
 Another case in point is Allen v. State, the substance of which is 
 that, "when the proof showed that the prisoner proposed to a servant 
 a plan for robbing his employer's office at night; that the servant dis- 
 closed the plan to his employer, by whom it was communicated to the 
 police ; that the master, acting under the instructions of the police, 
 furnished the servant with the keys of his office on the appointed 
 night; that the servant and the prisoner went together to the officei 
 when the servant opened the door with the key, and both entered 
 through the door, and were arrested in the house by the police — held 
 that there could be no conviction of burglary." 40 Ala. 334, 91 Am. 
 Dec. 477. See, also, 2 Whart. Cr. Law, § 1540 ; Roscoe's Cr. Ev. 345. 
 
 In the case at bar the detectives cannot be considered in any other 
 light than as the servants and agents of the bankers, Adams & Leonard. 
 y (the detectives) had the legal occupancy and control of the bank. 
 Two of them made arrangements with defendant to enter it; and de- 
 fendant, when arrested, had entered the bank at the solicitation of those 
 detectives, who were rightfully in possession, with the consent of the 
 owners. This cannot be burglary in contemplation of law, however 
 much the defendant was guilty in purpose and intent. 
 
 The judgment of the lower court must be reversed, and the cause 
 anded. 
 
 Reversed and remanded.' 
 
 ■ Accord! Love v. People, 160 111. 501, 48 N. D. 710, 82 L. It. A. ISO (1896): 
 State v. Waghalter, 177 Mo. 878, 78 s. w. 1028 (1908).
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 43 
 
 STATE v. CURRIE. 
 
 (Supreme Court of North Dakota, 1905. 13 N. D. 655, 102 N. W. 875, G9 L. 
 
 R. A. 405, 112 Am. St. Rep. 687.) 
 
 'Morgan, C. J., delivered the opinion of the court. 1 
 
 The defendant was convicted of the crime of burglary in the third 
 degree, and sentenced to five years in the penitentiary. His prin- 
 cipal contention on the appeal is that the court erred in refusing to 
 give certain requested instructions bearing on the relation of the 
 owner of the building and of a certain detective' to the commission 
 of the alleged crime. His claim is that the owner of the building 
 consented to the burglary, and that defendant was instigated to com- 
 mit the burglary under the undue influence of the detective in caus- 
 ing him to become intoxicated. 
 
 The facts are uncontradicted in respect to what transpired before 
 the burglary, and are as follows : About January, 1904, several crimes, 
 including burglaries, larcenies, and arson, were committed in Minto, 
 Walsh county, N. D., without any success by the local authorities 
 in arresting the perpetrators and bringing them to trial. Thereupon 
 the county authorities sought the aid of one Walker, a detective from 
 St. Paul. The detective had an interview with the state's attorney 
 upon his arrival in the county, and secured from him the names of 
 the persons suspected of complicity in the past crimes, among them 
 being the name of the defendant. The detective thereupon acted as 
 a cook in a restaurant in Minto. This restaurant was kept in con- 
 nection with a place kept by one Gile, where intoxicating liquors 
 were unlawfully sold. The restaurant feature of the establishment 
 was a pretense, as a matter of fact, and was resorted to for the pur- 
 pose of giving to the detective the appearance of having employment 
 at the place. After some days the defendant and Walker became 
 acquainted, and soon became constant companions. They ate to- 
 gether, slept together, drank to excess together, and became confiden- 
 tial with each other and intimate in their relations. The detective 
 loaned the defendant small sums of money at one time, and in con- 
 versation about money matters the detective told defendant that he 
 had $65 coming from Canada. The defendant then stated to Walker 
 that he knew where "we could get some money," and, upon being 
 asked where, answered, "In some of these stores around here." The 
 defendant and Walker finally, and after much consideration of the 
 time and place of a burglary, concluded to break into a store. The 
 detective says, in respect to the final conclusion : "We arranged a 
 deal to break this store open." The first suggestion of a burglary, 
 as between the defendant and Walker, came from the defendant. 
 Several stores were suggested by the defendant as ones that might be 
 burglarized, and among them Zulesdorff's, the one that was broken 
 
 i Part of this case is omitted. 

 
 44 THE ELEMENTS OF CRIME. (Ch. 2 
 
 into. Before the store to be burglarized was agreed upon, Walker 
 secured a letter of introduction to the mayor of Minto from the 
 state's attorney. Walker presented the letter to the mayor, and told 
 him of the contemplated burglary, and further stated: "I told him 
 what I was there for, and told him about the stores, this building 
 to be broken open, and told him that I didn't want myself in some 
 place where I might get shot, * * * and told the doctor, if 
 he knew any storekeeper in town there that would keep a secret, he 
 had better go and notify him, and afterwards I would see him." 
 Dr. Evans, the mayor, suggested that ZulesdorfFs store be selected, 
 and saw Zulesdorff in pursuance of this request, and Zulesdorff sent 
 Walker word that he wished to see him. Walker saw Zulesdorff 
 thereafter, and testifies as to what transpired between them as fol- 
 lows: "And he said that he had seen Dr. Evans, and he said that 
 things would be all right; and I told him that after it was broken 
 into he was to keep still about it, and told him what I wanted to 
 know on the outside; and I said, 'By doing that I can get in a little 
 work, and can find out the rest of these people.' So that was about 
 all that was said between I and Frank Zulesdorff." 
 
 Later, he testified as follows upon his further cross-examination: 
 "Q. And Zulesdorff told you it would be all right? A. Yes, sir. 
 Q. And that he would permit you to use his store in your plans, and 
 would keep the matter a secret for sufficient length of time to enable 
 you to complete the job? A. Yes, sir." 
 
 Zulesdorff did nothing further in reference to the burglary, except 
 that he marked two $5 bills that he left in the money drawer with 
 other money on the Saturday night preceding the burglary, which was 
 committed on Sunday night. The doors and safe and money drawers 
 were locked, and left in the same manner as usual. He marked the 
 bills, so that he could identify them in case they were stolen. On 
 these facts it is claimed that Zulesdorff consented to the breaking, 
 and that the defendant cannot, in consequence of such consent, be 
 rightfully convicted of the crime of burglary. 
 
 After the conversation between Zulesdorff and Dr. Evans and 
 Walker, it was definitely decided by defendant and Walker that the 
 Zulesdorff store was the one to be burglarized. Walker said that he 
 never made any suggestions to the defendant as to the burglary; 
 that he simply acquiesced and agreed to defendant's plans. In - an- 
 swer to a question as to "why you didn't go on with your plans then, 
 everything being all right," he testifies: "Yes, sir; right enough, if 
 I had wanted to work the plan myself, but I didn't want to do that. 
 I wanted him to do it himself, if he wanted to do it." Walker and 
 defendant agreed to break into the store Saturday night, and went 
 to the store for that purpose, but something happened after they got 
 to the store causing the breaking to be abandoned on defendant's 
 request. He then said, however, "We will try it to-morrow night." 
 On Sunday night they again went to the store, and broke into it by
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 45 
 
 joint force. The defendant removed the marked bills and other 
 money from the money drawer, and a fur-lined coat was also taken 
 from the store by defendant, and they left the building together. Af- 
 ter leaving the building the money, $16.60, was equally divided between 
 them. The overcoat was hidden in a livery barn by the defendant, and 
 subsequently found by an officer and returned to the owner. In a 
 few days the defendant was arrested at the instance of one Gile, and 
 his trial and conviction followed. 
 
 Upon these facts two questions are presented for consideration, 
 which were raised at the trial by requests to instruct the jury, and 
 they were also urged on a motion for a new trial: (1) Did the owner 
 of the property consent to the breaking into of his building by the 
 defendant? (2) Did the fact of the detective Walker's participation 
 in the burglary entitle the defendant to a reversal of the judgment 
 of conviction? 
 
 Upon the first question the facts as narrated show that Zulesdorff 
 did nothing by any act to aid in the burglary of his building. He 
 remained passive after being informed of the intended burglary. The 
 plan of a burglary had been arranged before he was advised of the 
 plan of the detective to join the defendant in the proposed burglary 
 as a feigned participant. Zulesdorff gave the detective no instructions. 
 He did not advise him as to the manner of proceeding, nor do any- 
 thing to assist in the burglary. The store was closed and locked in 
 the usual manner. When he consented to remain away, at the request 
 of the detective, for the purpose of securing evidence, it was not 
 certain that his store was the one to be burglarized, nor when it was 
 to occur. The Zulesdorff store was selected as the one to be burgla-' 
 rized after the detective's interview with him. Under these conditions 
 it cannot be said that he consented to the burglary. Before the own- 
 er's consent will be a defense to a burglary, the owner must participate, 
 or in some way aid or solicit or encourage the burglary. Mere knowl- 
 edge that a person's property is to be burglarized, followed by non- 
 action on his part to thwart it, is not deemed a consent to it. His 
 consent must be manifested by some act of assistance. Mere pas- 
 siveness for the purpose of securing evidence of the burglary is not 
 such consent as can be urged by the burglar as a defense. The detective 
 was not the agent of Zulesdorff in the matter at all, nor did he have 
 charge of the building in any sense; hence the detective's acts can- 
 not be said to be those of the owner. 
 
 Upon the second question the state's evidence shows that the de- 
 tective did not instigate the commission of the offense. The sugges- 
 tion of committing the crime, and the active planning of it, is shown 
 to have come from the defendant. The detective fell in and agreed 
 with the defendant's plan. It is true the detective deceived the de- 
 fendant as to the purpose of his complicity in the crime. He assisted 
 by his acts, but with a hidden purpose. Without commending this
 
 46 THE ELEMENTS OF CRIME. (Ch. 2 
 
 practice, or commenting upon it as dangerous and generally of doubt- 
 ful propriety, we will say that, if the defendant is shown to have com- 
 mitted the crime in its completeness, the feigned complicity of a de- 
 tective in the crime should not be a shield to the defendant. The au- 
 thorities almost unanimously hold that -a detective may aid in the com- 
 mission of the offense in conjunction with a criminal, and that the 
 fact will not exonerate the guilty party. Mere deception by the detec- 
 tive will not shield the defendant, if the offense be committed by him 
 free from the influence or instigation of the detective. The detec- 
 tive must not prompt or urge or lead in the commission of the offense. 
 The defendant must act freely of his own motion, and, if he so acts, 
 the fact that the detective was not an accomplice in fact will not ac- 
 crue to his benefit. The defendant is not to be charged with what 
 was done by the detective, as the two are not acting together for a 
 common purpose. As was said by the court in State v. Jansen, 22 
 Kan. 498 : "The act of a detective may, perhaps, not be imputable to 
 the defendant, as there is a want of community of motive. 
 But where each of the overt acts going to make up the crime charged"- 
 is personally done by the defendant, and with criminal intent, his 
 guilt is complete, no matter what motives may prompt or what acts 
 be done by the party who is with and apparently assisting him." The 
 cases cited above are all to the effect that the assistance of a detective 
 in a burglary is no defense to a person who himself does every act 
 essential to constitute the burglary. 
 The judgment is affirmed. 2 
 
 II. Consent of the State. 
 
 If two play at barriers, or run a tilt without the King's command- 
 ment, and one kill the other, it is manslaughter ; but if by the King's 
 command, it is not a felony, or, at most per infortuniam. 11 Hen. VII, 
 23 ; B. Coron. 229 ; Dalton, c. 96 ; Co. P. C. p. 56. 
 
 Hale, P. C. 473. 
 
 FORD v. CITY OF DENVER. 
 
 (Court of Appeals of Colorado, 1898. 10 Colo. App. 500, 51 Pac 1015.) 
 
 Thomson, P. J., delivered the opinion of the court. 
 
 Sgji by the city of Denver to recover a penalty for an alleged 
 violation of its ordinance. Judgment for the plaintiff, and appeal by 
 the defendant 
 
 2 Sop, also, State v. AM. v. 109 Town, 61, so N. W. 225, 46 L. R. A. 862, 
 77 Am. St. Rep. 520 (1899); State v. West, L57 Mo. 809, 57 S. W. 1071 (1900); 
 Daltou v. State, 118 Ga. L087, 89 S. B. 468 (1901).
 
 c 
 
 d>tifWt tow, ^ LH «% c^^> wAftfy 
 
 
 
 
 vt*-j

 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 47 
 
 The ordinance, the violation of which was charged, prohibited the 
 selling or giving away, within the limits of the city, of intoxicating 
 or malt liquors, in any quantity less than a gallon, by any person with^ 
 out a license for the purpose, except by a druggist upon the prescrip- 
 tion of a reputable physician and for medical purposes. The case was 
 heard upon an agreed statement of facts, from which" it appears that 
 the defendant was a druggist, not having a license, and that a sale 
 of a quantity of intoxicating liquors less than a gallon was made by 
 his clerk without the prescription of a physician, but on the supposition 
 that it was to be used for medical purposes. 1 
 
 Second. It appears that the city was instrumental in procuring the 
 sale of the liquorT Its purpose was to lay the foundation for a suit, 
 irPwHich a" "Judicial opinion as to what would constitute a violation, 
 of the ordinance might be procured. Apparently this purpose was un- 
 known to the defendant's clerk when he made the sale, and, technic- 
 ally at least, his act was contrary to the ordinance. But the city is in 
 no position to say that its ordinance was violated. It was as much 
 responsible for the sale of the liquor as the defendant, and it will 
 not be permitted to replenish its treasury from penalties incurred at 
 its instigation. It cannot be heard to complain of an act the doing of 
 which it solicited. It is entitled in a proper case to have its ordinance 
 construed, and questions concerning it determined ; but it cannot 
 manufacture a case for the purpose, or obtain the information it de- 
 sires at the expense of a party for whose infraction of its ordinance 
 it is responsible. For the foregoing reasons the questions submitted 
 will not be discussed. 
 
 The judgment is reversed, and the court below instructed to dismiss 
 the case. 
 
 Reversed. 
 
 CITY OF EVANSTON v. MYERS. 
 
 (Supreme Court of Illinois, 1S98. 172 111. 266, 50 N. E. 204.) 
 
 Mr. Justice Wilkin delivered the opinion of the court. 2 
 The Appellate Court, in passing upon this case, found that the 
 beer was sold as alleged in the complaint, but held that, inasmuch 
 as the city furnished the money and the purchaser was in its employ 
 to discover violators of the ordinance, the offense was one induced 
 by the city of Evanston, and the defendant was not punishable there- 
 for. Under the facts of the case, as we understand them, we cannot 
 concur in this view. The offense, if one was committed, consists in 
 
 
 
 i Part of the opinion is omitted. 
 * The opinion only is printed.
 
 48 THE ELEMENTS OF CRIME. (Ch. % 
 
 the unlawful selling of intoxicating liquor. The defendant was pass- 
 ing through an alley in Evanston with a load of beer when Denvir 
 hailed him, asking, "How is it for a case of beer?" to which he replied, 
 "It is all right." The money was paid, and the beer handed out. It 
 is clear that Denvir, in making this purchase, used no fraud, deceit, 
 or inducement other than a willingness to buy. It also appears, un- 
 contradicted, that appellee had sold beer to Denvir at other times, in 
 violation of the ordinance in question. On this occasion he was will- 
 ing to do so again. The offense of selling the beer having been volun- 
 tarily committed, is it reasonable to say that the willingness of Denvir 
 to purchase, for whatever purpose or object, constitutes a sufficient 
 inducement to appellee to make the sale, so as to excuse the act? We 
 think not. The offense consisted, not in the buying, but in the sell- 
 ing, of the beer. 
 
 A number of cases are cited to sustain the theory of the appellee's 
 defense, but in those cases the criminal acts charged were not wholly 
 voluntary on the part of the defendant, but were induced, in some 
 measure, by the acts and conduct of the pr.osecuting witnesses. The 
 principle here involved is well announced in the case of Grimm v. 
 United States, 156 U. S. 604, 15 Sup. Ct. 470, 39 L. Ed. 550. In 
 that case a post office inspector suspected Grimm of being engaged in 
 the business of selling obscene pictures and sending them through the 
 mails. Under assumed names the inspector wrote for a supply of 
 the pictures, and received them from defendant. In defense of the 
 charge made against him, defendant insisted the conviction should 
 not be sustained, because the letters were deposited in the mails at 
 the instance of the government and through the solicitation of one of 
 its officers. Upon this point the court said: "It does not appear that 
 it was the purpose of the post office inspector to induce or solicit the 
 commission of a crime, but it was to ascertain if the defendant was in 
 an unlawful business. * * * The law was actually violated by 
 the defendant. He placed letters in the post office which conveyed 
 information as to where obscene matter could be obtained, and he 
 placed them there with a view of giving such information to the per- 
 son who should receive those letters, no matter what his name ; and 
 the fact that the person who wrote under these assumed names and 
 received his letters was a government detective in no manner detracts 
 from his guilt." See the cases there cited. 
 
 In the case at bar it may be truly said it docs not appear that it 
 was the purpose of the city of Evanston to induce or solicit the un- 
 lawful selling of beer within its limits, but to ascertain whether the 
 ordinance was 1 icing violated in that regard. The appellee committed 
 the act charged against him, deliberately" and voluntarily, and in such 
 a manner as to indicate that he would have sold beer to any other 
 person applying for it. We think no clement is wanting on the part 
 of appellee in this case to bring this act within the letter and spirit
 
 1 
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 49 
 
 of the ordinance. The position of appellee is not that he is innocent 
 of the offense charged, but that his guilt was proven on the trial by 
 evidence obtained in an objectionable manner by the city. This is a 
 matter of which he has no right to complain. 
 
 Other points insisted upon by counsel for appellee have been duly 
 considered, but we find no substantial merit in them. 
 
 The judgments of the criminal court and Appellate Court will be 
 reversed, and the case will be remanded to the criminal court. 
 
 Reversed and remanded. 2 
 
 
 
 
 
 III. Negligence of the Person Injured, M^ 
 REGINA v. LONGBOTTOM. 
 
 to2(Cx**>>N> rv<jjM- T"h" 
 
 (Norfolk Circuit, 1819. 3 Cox, C. C. 439.) Vt*~J' 
 
 The indictment charged that the two prisoners feloniously killed 
 and slew John Truman, by driving over him with a gig. 
 
 O'Malley and E. Rodwell, for the prosecution, proved that the two 
 prisoners, who lived in Ipswich, had gone to Bentley on the day named 
 in the indictment in a gig, and that on their return at night they were 
 observed to be in a state of partial intoxication. At several places they / 
 drove along the high road at a very rapid pace, and when they got 
 within two miles of Ipswich they met three men. At that time they t» 
 were laughing and driving rapidly down a hill, the top of which . .ifc n 
 was thickly shaded with trees. When the three men got to the trees 
 they found a man lying insensible in the middle of the road, present- 
 ing all the appearance of having been just run over by some vehicle. 
 They took up the man, who shortly afterwards died. On inquiry it 
 turned out that the deceased was a man who had been deaf from child- 
 hood, but had, in spite of his infirmity, contracted an inveterate habit 
 of walking at all hours in the middle of the road. Against the prob- 
 able consequences of an indulgence in this habit he had been fre- 
 quently warned, but without effect. 
 
 2 Compare U. S. v. Adams (D. C.) 59 Fed. 674 (1S94) ; Armstrong v. State 
 (Tex. Cr. App.) 47 S. W. 9S1 (1S98) ; Wilcox v. People, 17 Colo. Ai p. 109, 
 67 Pac. 343 (1902) ; State v. Lucas, 94 Mo. App. 117, 67 S. W. 971 (1902). 
 
 "It is not pretended that there was a law of our state authorizing the 
 killing of a male of that tribe, and the proclamation or order of any officer of 
 the state could not make that right which is wrong, or legal which is illegal. 
 If such a proclamation or order was made, and if on account thereof any 
 Ignorant person was misled into the commission of crime, it is for the Gov- 
 ernor to determine whether that would be a proper case for the exercise of 
 executive clemency." Wilson, C. J., in State v. Gut, 13 Minn. 341 (Gil. 315) 
 (1SGS). See, also, People v. Mills, IS N. Y. Cr. R. 125, SO N. Y. Supp. 529 
 (1904). 
 
 Mik.Cr.L.-
 
 50 THE ELEMENTS OF CRIME. (Ch. 2 
 
 D. D. Keane, for the prisoner, Longbottom, submitted, at the close 
 of the case for the prosecution, that he ought to be acquitted, inas- 
 much as it appeared that the deceased had contributed in a great 
 measure, if not altogether, to his own death by his own obstinacy and 
 negligence. There was, moreover, no proof that the prisoners were 
 driving at any extraordinary pace; while it appeared that they were 
 in the middle of the road, and that the deceased was walking just 
 where he ought not to have been, reference being had to the lateness 
 of the hour, the darkness of the place, and his peculiar infirmity, which 
 ought to have induced him to refrain from the selection of the most 
 frequented part of the high road as that on which alone he would 
 walk. No accident could possibly have occurred to the deceased, if 
 he had been at the side of the road where foot passengers always 
 walked. He had, therefore, contributed to his own death, and the 
 question was whether that fact did not exonerate the prisoners from 
 such a charge as the present. This might be tested by analogy with a 
 civil action under Lord Campbell's act. Under that statute the rep- 
 resentatives of the deceased could not maintain an action for com- 
 pensation against the prisoners, as he had himself been guilty of 
 negligence ; so, in this prosecution, it was contended that the prisoners 
 could not be convicted of the crime of manslaughter. 
 
 Rolfe, B. I cannot stop the case; for, whatever may have been 
 the negligence of the deceased, I am clearly of opinion that the pris- 
 oners would not be thereby exonerated from the consequences of their 
 own illegal acts, which would be traced to their negligent conduct, if 
 any such existed. I am of opinion that, if any one should drive so rap- 
 idly along a great thoroughfare leading to a large town as to be unable 
 to avoid running over any pedestrian who may happen to be in the 
 middle of the road, it is that degree of negligence in the conduct of 
 a horse and gig which amounts to an illegal act in the eye of the law ; 
 and, if death ensues from the injuries then inflicted, the parties driv- 
 ing are guilty of manslaughter, even though considerable blame may 
 be attributed to the deceased. I do not at all recognize the analogy 
 which has been put with regard to an action under Lord Campbell's 
 act and a charge of felony ; and I abstain from giving any opinion 
 as to the question whether, under the circumstances here proved, the 
 representatives of the deceased would be precluded from maintain- 
 ing an action for compensation against the prisoners. But there is 
 a very wide distinction between a civil action for pecuniary compen- 
 sation for death arising from alleged negligence and a proceeding 
 by way of indictment for manslaughter. The latter is a charge im- 
 puting criminal negligence, amounting to illegality, and there is no 
 balance of blame in charges of felony; but, wherever it appears that 
 death has been occasioned by the illegal act of another, that other is 
 guilty of manslau n point of law, though it may be that he oughl 
 
 not to be severely punished. If the jury should be of opinion that the
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 51 
 
 prisoners were driving along the road at too rapid a pace, consider- 
 ing the time and place, and were conducting themselves in a careless 
 and negligent way in the management of the horse intrusted to their 
 care, I am of opinion that such conduct amounts to illegality, and 
 that the prisoners must be found guilty on this indictment, whatever 
 may have been the negligence of the deceased himself. 
 Verdict, guilty. 1 
 
 IV. GUTLT OF THE PERSON INJURED, 
 
 PEOPLE v. MARTIN. 
 
 (Supreme Court of California, 1894. 102 Cal. 558, 36 Pac. 952.) 
 
 Garoutte, J. 2 The appellant was convicted of obtaining money 
 and other personal property from one Sarah E. Leonard by false and 
 fraudulent pretenses. The information is laid under section 532 of 
 the Penal Code, and the false pretenses upon which it is based con- 
 sisted in the representations to said Leonard by the defendant that 
 a judgment in a large sum of money had been obtained against her 
 in the state of New York, and that her property would be seized and 
 sold to satisfy such judgment. The information further states that 
 said Leonard believed such statements, and, so believing, and in order 
 to avoid the application of her property to the satisfaction of such 
 judgment, she was induced to, and did, transfer and deliver said 
 property to defendant. 
 
 The information contained various allegations other than those 
 just noticed, and a demurrer was offered thereto upon various 
 grounds; but we think the information well drawn, and our consid- 
 eration of the alleged defects therein will be limited to the contention 
 of appellant that the allegations we have in substance quoted therefrom 
 constitute a bar to the prosecution of the accused. Possibly the state 
 might be barred from conducting a criminal prosecution by reasons i 
 
 i Accord: Rex v. Hutchinson, 9 Cox, C. C. 555 (1864) ; Reg. v. Kew. 12 
 Cox, C. C. 355 (1872). See, also, Commonwealth v. Corporation, 134 Mass. 
 211 (18S3). Contra : Reg. v. Birchall, 4 F. & F. 1087 (1S66). 
 
 "In Reg. v. Desvignes, tried before Denman, J., at the last session of 
 the Central Criminal Court, the defendant was charged with the manslaughter 
 of Sarah Ballard, on the night of the 24th of July last, by so negligently 
 managing a steam launch that a skiff containing the deceased and other 
 persons was run down and capsized, and her death caused by drowning. In 
 opening the case, the counsel for the prosecution laid it down broadly that, 
 although contributory negligence would be an element in favor of the defend- 
 ant in a civil case, it was no answer to a charge of manslaughter. Mr. Justice 
 Denman said : 'There is one decision to the contrary (Reg. v. Birchall, 4 
 F. & F. 1087) ; but I grant that current authority is in the direction you 
 mention. The point, however, has never been settled In the Court of Ap- 
 peal.' " -70 L. T. (O. S.) 76 (1SS0). 
 
 2 Arguments of counsel and part of the opinion relating to another point 
 are omitted. 

 
 J fit ' If I I 
 
 52 THE ELEMENTS OF CRIME. (Cll. 
 
 of the acts of its duly constituted officers representing the state in such 
 matters; but it is a novel proposition that the acts and conduct of a 
 private individual, even though such individual be what is termed 
 in law the prosecuting witness, could, under any imaginable circum- 
 stances, bar the state from the prosecution of a criminal. Appellant 
 states her position as follows : 
 
 "If, at the time that Sarah E. Leonard placed her property in the 
 possession of the defendant, she believed that there was a valid and 
 existing judgment for $17,000 or $18,000 against her in the state of 
 New York, and she placed her property out of her hands to avoid 
 its being applied towards the satisfaction of such judgment, her in- 
 tentions were dishonest, and she was herself guilty of a criminal of- 
 fense, and became particeps criminis." 
 
 The case of McCord v. People, 46 N. Y. 472, appears to support 
 the doctrine insisted upon by appellant, but the great weight of au- 
 thority is to the contrary. It is said by the court in Commonwealth 
 v. Morrill, 8 Cush. (Mass.) 571: "Supposing that to be otherwise, 
 and it should appear that Lynch (the party defrauded) had also 
 violated the statute, that would not justify the defendants. If the 
 other party has also subjected himself to a prosecution for a like 
 offense, he also may be punished. This would be much better than 
 that both should escape punishment because each deserved it equally." 
 The doctrine of the foregoing case is approved by Mr. Bishop in 
 his work on Criminal Law (section 469, 8th Ed.). The principle 
 is also declared in the same work at sections 256 and 257. See, also, 
 In re Cummins, 16 Colo. 451, 27 Pac. 887, 13 L. R. A. 752, 25 Am. 
 St. Rep. 291. From any aspect of the case the contention has no 
 sound support. If the party defrauded is also guilty of a violation 
 of the law, he, too, should be prosecuted, rather than his offense should 
 serve as a shield to the other's crime. The offense is committed 
 against the public, and not against the individual. The guilty party 
 is prosecuted in the interest of the people of the state, and not in 
 the interest of the party defrauded of his property. There is no 
 principle of law that will bar the state from prosecuting a criminal 
 because! some other person is a particeps criminis. But, viewing the 
 facts of this case in the light of the indictment, the defrauded party 
 committed no offense whatever. How could she possibly do so, when 
 the pretenses were all false, and the whole thing was but a scheme of 
 lying and deceit? If such be a crime, she transferred no property 
 to evade its application upon a money judgment which stood against 
 Eor lli' re was no such judgment. Her intention to make a trans- 
 fer for that purpose avails nothing, for a person's intentions alone 
 violate no law. 
 
 We have examined the additional assignments of error based upon 
 the rulings of the court as to the admission and rejection of evidence, 
 and hold none of them to be well taken.
 
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. i> -J 
 
 _For the foregoing reasons, it is ordered that the judgment and 
 order be affirmed. 
 
 Harrison, McFarland, De Haven, and Van Fleet, JJ., con- 
 curred. 
 
 Rehearing: denied.' 
 
 't> 
 
 V. Condonation of the Person Injured. : 
 
 ^tW^^-^f ROBERT'S CASE. 
 
 (Select Pleas of the Crown, Sel. Soc. PI. 77. Cornish' Wref 12010 
 
 Malcot Crawe appeals Robert, Godfrey's son, of rape. He comes 
 and defends. It is testified that he thus raped her and that she was 
 seen bleeding. By leave of the justices they made concord on the 
 terms of his espousing her. K^ C\ 1 ^^ v*»* 
 
 WILLIAMS v. STATE. Jt 
 
 (Supreme Court of Georgia, 1S98. 105 Ga. G06, 31 S. E. 546.) 
 
 Lumpkin, P. J. An indictment against G. W. M. Williams, found f 
 by the grand jury of Screven county and transferred for trial to the 
 county court thereof, charged that the accused "did falsely and fraud- 
 ulently represent to J. C. White that he, the said Williams, had pur- 
 chased the Cuyler & Woodburn Railroad for the sum of $27,000, and 
 that he had raised all of the purchase price except $100, and was 
 then on his way to Savannah to pay the purchase money. By these 
 false and fraudulent representations the said G. W. M. WilliamsjJ^.v ; : ^>\ 
 fraudulently induced the said J. C. White to lend him, the said G. 
 W. M. Williams, the sum of $100, which he promised to pay back 
 within three days from the date of the loan. These representations, 
 made as aforesaid, were all false and fraudulent, and were made by 
 the said Williams for the purpose of defrauding the said White, and 
 did in point of fact defraud the said White, contrary to the laws of 
 the said state, the good order, peace, and dignity thereof." At the 
 trial the state introduced testimony substantiating all the material 
 allegations of the indictment. It distinctly appeared that, in the con- 
 versation between the accused and White which resulted in the form- 
 er's procuring the loan, he claimed to be the owner of the railroad 
 in question. For instance, he used the expression, "I don't want to 
 incumber my road," and other language indicating a purpose on his 
 
 2 Accord: Cunningham v. State. 61 N. J. Law, 67, 38 Atl. 847 (1897). See, 
 also, Commonwealth v. Henrv, 22 Pa. 253 (1853); Reg. v. Hxidson. 8 Cox, 
 C. C. 305 (1860) ; Commonwealth v. Shober, 3 Pa. Sup. Ct. 554 (1897) ; Gil- 
 more v. 'People, 87 111. App. 12S (1899). Contra: State v. Crowley, 41 Wis. 
 271, 22 Am. Rep. 719 (1876).
 
 54 THE ELEMENTS OF CRIME. (Ch. 2 
 
 part to create the impression that the railroad was his property. It 
 was further shown by the state that White was actually defrauded of 
 $100, and that Williams did not repay the loan as he had agreed to 
 do. Evidence in behalf of the accused tended to show the following: 
 After Williams had been arrested upon a warrant charging him with 
 bemg a cheat and swindler, and before he was indicted, he made a 
 settlement with White by delivering to him the promissory note of 
 E. E. Wood & Co. for $100, which White accepted in full satisfaction 
 of his demand against Williams, and afterwards sold for $90. There 
 was a verdict of guilty in the county court, and by his petition for 
 certiorari Williams alleged error as follows : 
 
 Second. 1 The judge erroneously charged that "a settlement of the 
 debt by White after the warrant had been sworn out, and the defend- 
 ant was under arrest or under bond, would be no bar to the prose- 
 cution." 
 
 We are also of the opinion that the second charge excepted to was 
 free from error. That a fraud was perpetrated upon White plainly 
 appeared. As a result of this fraud he was deprived of the posses- 
 sion and use of his money, and it is apparent from the evidence as a 
 whole that there was a criminal intent on the part of Williams not to 
 return the money at all. That he was subsequently forced to make 
 restitution, which, as will have been seen, was only partial, did not 
 relieve him of the consequences of his violation of the criminal stat- 
 ute, which was complete before his arrest. As well might it be said 
 that one guilty of a larceny could escape prosecution by returning the 
 stolen goods after being arrested for the offense. 
 
 Judgment affirmed. All the Justices concurring. 9 
 
 COMMONWEALTH v. CARR. 
 
 (Superior Court of Pennsylvania, 1905. 28 Pa. Super. Ct. 122.) 
 
 Indictment for defrauding by false pretenses. The opinion of the 
 Superior Court states the case. Verdict of guilty, upon which judg- 
 
 tit of sentence was passed. 
 
 Smith, J. The crime of defrauding by false pretenses belongs to 
 the class of misdemeanors which, by section 9 of the act of penal 
 procedure of March 31, 1860 (P. L. 432), may be settled between the 
 complainant and the offender, at the discretion of the examining mag- 
 
 i Only so much of the opinion as relates to condonation is printed. 
 
 2 Accord: Rape, Commonwealth v. Slattery, 147 Mass. 423, 18 N. E. 390 
 (1888); forgery, State v. Tull, 119 Mo. 421, 24 S. W. n»io (1894); seduction, 
 Barker v. Commonwealth, 90 Va. 820, 20 S. B. 770 (1894); false pretense, 
 Commonwealth v. Brown, 167 Mass. 144, 46 N. 10. 1 (1896); embezzlement, 
 Dean v. Btate, 147 lad. 215, 46 N. B. 628 (1897). See, also, State v. Frisch, 
 46 La. Ann. 1288, m South. 182 (1893); May v. State, 115 Ala. 14, 22 South 
 611 (1896); Wooldrldge v. State, 49 Fla. 187, 88 South. 8 (1906).
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION, ETC. 55 
 
 istrate_or_the_cpurt. Rothermal v. Hughes, 134 Pa. 510, 19 Atl. 677 ; 
 GeieT^vTShade, 109 Pa. ISO. It is essential to such settlement, how- 
 ever, that the complainant shall "acknowledge to have received sat- 
 isfaction for such injury and damage." Until this is done, there is 
 no settlement ; and neither partial restitution by the defendant, nor an 
 agreement falling short of an acknowledgment of satisfaction in the 
 manner provided by the act, bars a prosecution for the criminal of- 
 fense. 
 
 The ruling assigned for error in this case is the refusal to admit in 
 evidence seven checks given by the defendant to the prosecutor, for 
 amounts aggregating JigjlOA and duly honored, in partial payment 
 of a note for ^QOj) given by the defendant for repayment of the 
 amount obtained^by him from the prosecutor, as charged in the in- 
 dictment, with the prosecutor's receipt for a check subsequently given 
 for the residue, but which remained unpaid. 
 
 The papers thus offered in evidence formed no part of the trans- 
 action from which the prosecution arose, and there was nothing in 
 that transaction which they could explain. Since both the prosecutor 
 and the defendant had already testified to the payment made by these 
 checks, there was no question respecting them requiring further evi- 
 dence. At best, the checks were only cumulative evidence of matters 
 of fact not in dispute, and, as the case is presented in the bill of ex- 
 ceptions, neither their admission nor rejection could affect the defense. 
 Moreover, in view of the evidence for the commonwealth, the partial 
 restitution by the defendant, shown by these checks, was immaterial. 
 Under the act referred to, the defendant can be relieved from pros- 
 ecution only by the complainant's acknowledgment of satisfaction, 
 with the approval of the magistrate or the court. As to the note and 
 check given by the defendant, in the absence of a stipulation that 
 they should be taken as payment, they were not satisfaction unless 
 paid ; and nearly two-thirds of the amount for which they were given 
 remained unpaid at the commencement of the prosecution. Thus the 
 complainant had neither acknowledged nor received satisfaction, and 
 his efforts to obtain it were no bar to the conviction of the defendant 
 on the indictment. 
 
 Judgment affirmed. 
 
 By statute in some states certain offenses may be compromised. In some 
 cases with, and in others without, the consent of the court or committing 
 magistrate. See Statham v. State, 41 Ga. 507 (1871); McDaniel v. State, 
 27 Ga. 197 (1859) ; Saxon v. Conger, 6 Or. 388 (1877) ; Rohrheimer v. Win- 
 ters, 126 Pa. 253, 17 Atl. 606 (1SS9). The New York Code of Criminal Proce- 
 dure provides (section 663) : "When a defendant is brought before a magis- 
 trate, or is held to answer on a charge of misdemeanor, for which the per- 
 son injured by the act constituting the crime has a remedy by civil action, 
 the crime may be compromised, as provided in the next section, except when 
 it was committed: (1) By or upon an officer of justice while in the execution 
 of the duties of his office; (2) riotously ; or (3) with an intent to commit a 
 felony."
 
 56 THE ELEMENTS OF CRIME. (Ch. 2 
 
 VI. Condonation of the State. 
 
 If any felons will confess their crimes and accuse others and be- 
 come approvers, let them be put out of penance, and let their confes- 
 sions be presently received and enrolled by the coroner, and from that 
 day forward let them have of the sheriffs three half pence a day for 
 their support. — Britton, 12. 
 
 
 *) 
 
 COMMONWEALTH v. ST. JOHN. 
 
 (Supreme Judicial Court of Massachusetts, 1899. 173 Mass. 566, 54 N. E. 254, 
 
 73 Am. St. Rep. 321.) 
 
 Morton, J. 1 The decisive question in each case is the same, and the 
 cases may therefore properly be considered together. The question is 
 whether the immunity that was promised to the defendants by the 
 city marshal and by Boyle, the chief detective of the police depart- 
 ment of Springfield, can be pleaded in bar of the indictment against 
 them. We think that it cannot. The immunity and protection which 
 may be promised from the consequences of crime on condition of a full 
 disclosure and readiness to testify are not a matter of right, but rest 
 in the last resort on the sound judicial discretion of the court having 
 final jurisdiction to sentence, and cannot, therefore, be pleaded in bar. 
 Wight v. Rindskopf, 43 Wis. 344; State v. Moody, 69 N. C. 529; 
 State v. Graham, 41 N. J. Law, 15, 32 Am. Rep. 174; Rex v. Rudd, 
 Cowp. 331; Whart. Crim. Ev. §§ 439, 443; 3 Russ. Crimes (9th 
 Am. Ed.) 599. 
 
 When such promises are made by the public prosecutor or with 
 his authority, the court will see that due regard is paid to them, and 
 that the public faith which has been pledged by him is duly kept. The 
 prosecuting officer has also the power to enter a nolle prosequi. It 
 appears in each case that neither the city marshal nor Boyle had any 
 authority from the district attorney to make the promises or hold out 
 the inducements which they did. There is nothing in either bill of 
 exceptions tending to show that the district attorney had anything 
 to do with the prosecution in the police court. Neither of the defend- 
 ants appeared before the grand jury, although they were at the court- 
 house from day to day when the grand jury was in session, ready to 
 testify, relying on the promises of immunity made by the city mar- 
 shal and by Boyle; and there is nothing tending to show that there 
 was any expectation or understanding on the part of the district at- 
 torney that either was to testify as a government witness in the supe- 
 rior court, and neither did so testify. If an appeal had been made to 
 the clemency of the court, it would no doubt have been competent for 
 
 i The opinion only is printed.
 
 Sec. 9) EFFECT OF CONSENT, CONDONATION. ETC. 57 
 
 the court to take into consideration the inducements which had been 
 held out and the promises that had been made, if any, by the city 
 marshal and by Boyle. But what was done was to plead the promises 
 and inducements in bar. A question of law was thus presented, and 
 we think that the ruling of the court was clearly right. 
 Exceptions overruled. 1 
 
 VII. Custom. 
 LAWRENCE v. STATE. 
 
 (Court of Appeals of Texas, 1886. 20 Tex. App. 536.) 
 
 The indictment in this case charged the appellant with the theft of 
 two hogs, of the aggregate value of $40, the property of B. C. Hutch- 
 ihsTTh Gonzales county, Tex., on the 1st day of December, 1883. His 
 conviction and the penalty assessed, are expressed in the verdict, to 
 which allusion is made in the opinion, as follows : 
 
 "We, the jury, find the defendant guilty of theft of property of 
 value of less than $20, and assess his punishment at six months con- 
 finement in the county jail and $100 fine." 2 
 
 White, Presiding Judge. No error was committed in refusing to 
 admit proof that it was a general custom of the country that any 
 one had the right to kill all unmarked hogs over 12 months old run- 
 ning on the range. It is true that the law requires that the owner 
 shalhplace his earmark upon hogs, sheep, and goats on or before they 
 are 6 months old (Rev. St. 1879, art. 4558) ; but a failure to do so 
 does not affect, much less destroy, the owner's right to his property. 
 His recorded mark is not even required as the best evidence of owner- 
 ship, as is the case with brands. Rev. St. 1879, art. 4561 ; Dixon v. 
 State, 19 Tex. 134; Johnson v. State, 1 Tex. App. 333; Love v. 
 State, 15 Tex. App. 563; Dreyer v. State, 11 Tex. App. 632. To 
 fraudulently take such property when unmarked is as much theft as 
 if it had been marked. This is the rule of the law, and ignorance of 
 the law is no excuse. Pen. Code, art. 14. "A rule of law can never be 
 subverted by local custom. To sanction the doctrine that it could 
 would be to unsettle the law, would open for discussion and neighbor- 
 hood proof, not the facts, but the law, and allow such neighborhood 
 the right to claim a distinct law of its own, thereby destroying the 
 beauty of the law, which consists in the uniformity of its action 
 
 i Where It is provided by statute that no case shall be dismissed without 
 permission of the presiding judge, an agreement of the district attorney to 
 dismiss a case, provided the defendant will become a witness for the state. 
 is not binding on the state if the judge does not consent thereto. See Tullis 
 v. State, 41 Tex. Cr. R. 87, 52 S. W. 83 (1899). 
 
 By statutes of limitation many states prescribe that prosecutions must be 
 brought within a specified time after the commission of the offense. 
 2 Part of this case is omitted. 
 
 
 - 
 
 ♦J 

 
 58 THE ELEMENTS OF CRIME. (Ch. 2 
 
 throughout the land." Devvees v. Lockhart, 1 Tex. 535; McKinney 
 v. Fort, 10 Tex. 220 ; Russell v. A. Oppenheimer & Co., White & W. 
 Civ. Cas. Ct. App., § 272; Hudson v. Henderson, Id. § 353; Davie 
 v. Lynch, Id. § 696. 
 
 It would seem that the case of Debbs v. State, 43 Tex. 650, an- 
 nounces a different doctrine, and in so far as it does it is hereby over- 
 ruled. It is folly to talk about an individual gifted with enough in- 
 telligence to render him responsible for his acts honestly believing 
 that he has the right to claim and appropriate all the unmarked year- 
 lings, sheep, hogs, and goats in Texas that are a year old. Such a 
 custom would be a monstrosity, which the law would never tolerate. 
 It was not error to refuse defendant's special requested instruction as 
 above quoted. 
 
 One of the instructions given by the court to the jury was as fol- 
 lows: "The jury are further instructed that if they believe from the 
 evidence that the defendant took the hogs charged in the indictment, 
 yet that he so took them with an honest belief, although he may have 
 been mistaken in such belief, that he had the right or the authority to do 
 so, or if the evidence on this point is such as to raise in your minds 
 a reasonable doubt as to whether the defendant did believe he had 
 the right to take such hogs, then in such case you will give him the 
 benefit of such doubt and acquit him." 
 
 The instruction fully and sufficiently covered the important material 
 issues in the case with reference to which the appellant is here com- 
 plaining. If he wished more specific instructions upon these points, 
 he should have asked them, and presented them in such shape as that 
 the court could give them, whilst a court may qualify or modify an in- 
 struction which is asked, so as to make it present the law as the court 
 conceives the law to be, yet the court is not bound to qualify or modi- 
 fy an illegal or erroneous instruction, but may refuse it outright. 
 We are of opinion that the verdict of the jury is sufficiently definite 
 and specific under our present statute. Pen. Code, art. 748. There 
 is some conflict in the evidence; but, if the testimony of the state's 
 witnesses is believed, the proof is amply sufficient to support the ver- 
 dict and judgment, and the judgment is affirmed. 
 
 Affirmed. 2 
 
 2 Accord: On Indictment for larcenv, Commonwealth v. Doane, 1 Cush. 
 (Masg.) 6 (1848); riot. Bankna v. Slate, 4 Ind. 11-1 (1863); Crockford v. State, 
 7.'. Neb. 1. 102 N. W. 70 (1905); Indecent exposure, Rejr. v. Reed, 12 Cox, C. 
 C. i ■ isti » : Hendry v. State, .".!> Fla. li."..".. 22 South. <:iT (1897); emlKv.zle- 
 ment. Bolln v. State, 51 Neb. 681, 71 X. W. 444 (1897); People v. Flecbter, 
 44 App. In v. 199, <I0 N. Y. Supp. 777 (1899).
 
 Sec. 10) EFFECT OF COERCION. 59 
 
 SECTION 10.— EFFECT OF COERCION. 
 I. Coverture. 
 
 If a ceorl steal a chattel and bear it into his dwelling, and it be at- 
 tached therein, then shall he be guilty for his part, without his wife, 
 for she must obey her lord. If she dare to declare by oath that she 
 tasted not of the stolen property, let her take her third part. Laws of 
 King Ine., c. 57. 
 
 A wife, however, who is the spouse of a thief, shall not be liable for 
 the act of the man, because she ought not to accuse her husband nor 
 to disclose his theft or felony, since she has not any power over herself, 
 but her husband has. She ought not, however, to consent to the fel- 
 ony of her husband, nor to be his confederate. * * * It is not, 
 therefore, in every case that the woman is to be set free, on account of 
 her counsel, aid, or consent, according as they have been accomplices 
 in the crime, they shall be partakers in the punishment. Bracton, book 
 o, C o4i. 
 
 SARAH CONNOLLY'S CASE. 
 (Durham Assizes, 1829. 2 Lew. 229.) 
 
 The prisoner was indicted for uttering base coin. 
 
 The evidence was that she had gone from house to house uttering 
 base coin, and that her husband accompanied her to the door, but did 
 not go in. 
 
 Bayley, J., directed the jury to infer that she was acting under the 
 coercion of her husband, and to find her not guilty. 
 
 REX v. HUGHES. 
 (Lancaster Assizes, 1S13. 2 Lew. 229.) 
 
 Martha Hughes, the wife of Patrick Hughes, was indicted for forg- 
 ing and uttering three £2 Bank of England notes. 
 
 James Piatt proved that he went to the shop of the prisoner's hus- 
 band, in consequence of a conversation which he had had some time 
 before with the husband. The husband was not present. The pris- 
 oner beckoned him to go into an inner room, into which she fol- 
 lowed him, when he told her what her husband had said to him. 
 They then agreed about the business, and the witness bought of the 
 prisoner three £2 notes at £1 4s. each.
 
 60 THE ELEMENTS OF CRIME. (Ch. 2 
 
 The witness paid her four £1 notes and was to receive 8s. in change. 
 When he was putting the notes into his pocketbook, and before he 
 received the change, the husband put his head into the room and 
 looked in, but did not come in or interfere in the business, further 
 than by saying, "Get on with you!" When the witness and the 
 prisoner returned into the shop, the husband was there and the pris- 
 oner gave him the change, and both the prisoner and the husband 
 cautioned him to be careful. 
 
 On these circumstances being proved, Cross, for the prisoner, ob- 
 jected that they clearly established that she acted under the coercion 
 of her husband. Supposing .both husband and wife on their trial, 
 this evidence would be sufficient to convict him; and he submitted 
 that, if so, she must in this case be acquitted. He cited 2 East's 
 P. C. 259 : "If a wife be guilty of larceny in company with her 
 husband, both of them may be indicted; and if the husband be con- 
 victed, the wife shall be acquitted." 1 Hale, 46; Kelynge, 37: "But 
 if the husband be acquitted, and it appear that the felony were by 
 her own voluntary act (by which must be understood that her hus- 
 band, if present, had no knowledge of or participation in the fact), 
 she may, upon the same indictment, be convicted, for the charge is 
 joint and several." The acquittal or conviction, therefore, of the 
 husband, regulates that of the wife. Here the husband might have 
 been convicted. 
 
 Thompson, B. (stopping Park and Rain). I am very clear as to 
 the law on this point. 
 
 The law, out of tenderness to the wife, if a felony be committed 
 in the presence of the husband, raises a presumption prima facie, 
 and prima facie only (as is strongly laid down by Lord Hale), that 
 it was done under his coercion. But it is absolutely necessary that 
 the husband should be actually present and taking a part in the 
 transaction. 
 
 Here it is entirely the act of the wife. It is, indeed, in consequence 
 of a communication previously with the husband that the witness ap- 
 plies to the wife; but she is ready to deal, and has on her person 
 the articles which she delivers to the witness. 
 
 There was a putting off before the husband came; and it was 
 sufficient if, before that time, she did that which was necessary to 
 complete the crime. The coercion must be at the time of the act 
 done, and then the law, out of tenderness, refers it, prima facie, to 
 his coercion; but, when it has been completed in his absence, no 
 subsequent act of his (although it might possibly make him an ac- 
 cessory to the felony of his wife) can be referred to what was done, 
 in his absence. 
 
 Objection overruled. 
 
 "When coercion is once established, if should shield the wife — at loast 
 until it appears thai she bas been relieved from its Influence and we do not 
 think that, after being coerced into giving assistance to her husband, simplj
 
 Sec. 10) EFFECT OF COERCION. 01 
 
 SELLER v. PEOPLE. 
 
 (Court of Appeals of New York, 1879. 77 N. Y. 411.) 
 
 FolgEr, J. 1 The most that can be claimed for the evidence in this 
 case is that the plaintiff in error was in company with the man 
 Brown, just before and just after the larcenous act. She was not 
 near to him when it was done. He was 200 feet or more away. 
 
 because she may be the most active in consummating the offense, that this 
 should, as matter of law, make her guilty. On the contrary, the question 
 should still depend on the cause of her increased activity, and not upon the 
 fact of such activity. The presence and constraint of her husband may still 
 be the cause, and not her own wickedness." Simpson, C. J., in State v. Hous- 
 ton, 29 S. C. 108, 6 S. E. 943 (1888). 
 
 i Part of this case is omitted. 
 
 "There was a case of arson before me on the Home Circuit. The man 
 and wife were tried together, and it appeared that the man, though present, 
 was a cripple, and bed-ridden in the room, and I held, after conferring with 
 my Lord Chief Justice Tindal, that the circumstances und^r which the man 
 was repelled the presumption of coercion." Vaughan, J., in Reg. v. Cruse, 
 2 Moo. 53 (1838). 
 
 Under a statute allowing, but not compelling, a wife to testify in a crim- 
 inal case in which her husband is defendant, if, in giving her testimony, her 
 husband being present, she commits perjury, the presumption of coercion 
 does not arise. Commonwealth v. Moore, 162 Mass. 441, 38 N. E. 1120 (1894). 
 See, also, Smith v. Meyers, 54 Neb. 1, 74 N. W. 277 (189S). Nor does the 
 presumption arise on an indictment for keeping a gaming house, Rex v. Dix- 
 on, 10 Mod. 335 (1715) ; or a bawdy house, Reg. v: Williams, 10 Mod. 63 
 (1711), even though her husband resided in the house and hired, furnished, 
 and provided for it, Commonwealth v. Cheney, 114 Mass. 281 (1873). 
 
 Gantt, P. J., in State v. Ma Foo, 110 Mo. 7, 19 S. W. 222, 33 Am St. Rep. 
 414 (1891): "Learned counsel for defendant desire us to ingraft an addi- 
 tional modification on this rule of evidence, and require the state to go fur- 
 ther and prove that the husband not only was not the inciter or responsible 
 criminal agent in the commission of the crime, but that he actually disap- 
 proved it. and, in the absence of evidence of his disapproval, the wife must 
 be acquitted. This is not the law. There is little in the present organization 
 of society upon which the prima facie presumption 4 itself can stand, and cer- 
 tainly nothing calling for any extension of the presumption." 
 
 "Before Somerville's Case, 26 Eliz., and Somerset's Case, A. D. 1615, I find 
 no exception to the general rule that the coercion of the husband excuses 
 the act of the wife. See 27 Ass. 40, Stamf. P. C. 26, 27, 142 ; Poulton de 
 Pace Regis, 130 Br. Ab. Coron. 108; Fitz. Ab. Coron. 130, ISO, 199. But 
 after these cases I find the following exceptions in the books : Bac. Max. 57, 
 except treason only. Dalton, c. 147, treason and murder, citing for latter 
 Mar. Lect. 12 (which I conceive refers to the reading of Marrow, a Master In 
 Chancery in the time of Henry VII. See Willes v. Bridger, 2 B. & A. 2S2). 
 1 Hale, P. C. pp. 45, 47, treason, murder, and homicide ; and page 434, trea- 
 son, murder, and manslaughter; Kel. 31, an obiter dictum, murder only; 
 Hawk. b. 1, c. 1, § 11, treason, murder, and robbery; Bl. Com. vol. 1, p. 411. 
 treason and murder ; vol. 4, p. 29, treason and mala in se, as murder and 
 the like. Hale therefrom alone excepts manslaughter, and Hawkins intro- 
 duces robbery, without any authority for so doing; and, on the contrary. 
 Jn R. v. Cruse, 8 0. & P. 545, a case is cited, where Burrough, J., held that 
 che rule extended to robbery. It seems long to have been considered that 
 the mere presence of the husband was a coercion (see 4 Bl. Com. 28), and 
 >t was so contended in R. v. Cruse ; and Bac. Max. 56, expressly states that 
 i wife can neither be principal nor accessory by joining with her husband in 
 rt felony, because the law intends her to have no will ; and in the next page 
 he says; 'If husband and wife join in committing treason, the necessity of
 
 62 THE ELEMENTS OF CRIME. (Ch. 2 
 
 It may be that his eye was upon her, and that she knew it; no more 
 than that. 
 
 It was not error for the court, therefore, to state to the jury the 
 distance off which Brown was shown to be; especially as it was 
 stated, on which to remark to them, that it was for them to say whether 
 that fact did not rebut the presumption that she was coerced by him, 
 and to find whether she was in his presence. 
 
 The request to charge that if the four conspired to steal she must 
 be presumed to be coerced by him, if when she entered the store 
 he was at the entrance, was well denied. His command or procure- 
 ment would not excuse her. The theft was not done while he was 
 at the entrance. He had passed on before that. It is the presence 
 of the husband at the thieving act which raises the presumption. 
 
 The court was right in telling the jury that the questions were 
 whether Brown was her husband, and was present when the theft 
 was done. It was right in refusing to charge that the facts were 
 proven from which coercion was to be presumed; for the presence 
 of Brown at the act was not proven. There was no error on the trial. 
 
 The judgment should be affirmed. 
 
 Judgment affirmed. All concur. 
 
 II. Command. 
 
 MEMORANDUM, 16G0. 
 
 (Kelyng, 13.) 
 
 Upon the trial of one Axtell, a soldier who commanded the guards 
 at the King's Tryal, and at his murder; he justified that all he did 
 was as a soldier, by the command of his superior officer, whom he 
 must obey or die. It was resolved that was no excuse, for his 
 superior was a traitor, and all that joined him in that act were 
 traitors, and did by that approve the treason-; and where the com- 
 mand is traitorous, then the obedience to that command is also trait- 
 orous. 
 
 obedience doth not excuse the wife's offense, as it does in felony.* • * • 
 Dalton dtei the exception from Bacon without the rule, and Hale follows 
 Milton, : i r m I the other writers follow Hale; and It soenis by no means improb- 
 able that the exceptions of treason and murder, which seem to have sprung 
 from Somervilte's and Somerset's cases, and which were probably exceptions 
 to the rule as stated by Bacon, have been continued by writers without ad- 
 Ing to their origin, or observing that the presence of the husband is no 
 i,,,,.., idered an absolute excuse, but only affords a prima facie presump- 
 
 tion thai the wife acted by his coercion." Russell on Crimes (International 
 edition), p. 1 1 1 '', note by Greaves.
 
 Sec. 10) EFFECT OF COERCION. 63 
 
 RIGGS v. STATE. 
 (Supreme Court of Tennessee, 1866. 3 Cold. 85, 91 Am. Dec. 272.) 
 
 The plaintiff in error was convicted at the August term, 1866, of 
 murder in the second degree, and sentenced to 15 years' imprison- 
 ment in the penitentiary, from which he appealed. Judge James P. 
 Swan, presiding. 
 
 Shackelford, J., delivered the opinion of the court. 
 
 The plaintiff in error was indicted in the circuit court of Jefferson 
 county for the killing of Capt. Thornhill. A change of venue was 
 had to the county of Grainger. At August term, 1866, of the cir- 
 cuit court of Grainger county, he was convicted by a jury, of mur- 
 der in the second degree, and sentenced to 15 years' imprisonment in 
 the penitentiary. 
 
 A new trial was moved for, which was overruled, and an appeal 
 taken to this court. 
 
 The court, among other things not excepted to, charged the jury 
 in substance as follows: "A soldier in the service of the United 
 States is bound to obey all lawful orders of his superior officers, 
 or officers over him, and all he may do in obeying such lawful or- 
 ders constitutes no offense as to him. But an order, illegal in itself 
 and not justified by the rules and usages of war, or in its substance 
 being clearly illegal, so that a man of ordinary sense and under- 
 standing would know, as soon as he heard the order read or given, 
 that such order was illegal, would afford a private no protection for 
 a crime committed under such order, provided the act with which 
 he may be charged has all the ingredients in it which may be neces- 
 sary to constitute the same a crime in law. Any order given by an 
 officer to his private, which does not expressly and clearly show on 
 its face, or in the body thereof, its own illegality, the soldier would 
 be bound to obey, and such order would be a protection to him. 
 No person in the military service has any right to commit a crime 
 in law, contrary to the rules and usages of war, and outside of the 
 purposes thereof; and the officers are all amenable for all crimes 
 thus committed, and the privates likewise are answerable to the 
 law for crimes committed in obeying all orders illegal on their face 
 and in their substance, when such illegality appears at once to a com- 
 mon mind, on hearing them read or given." We think there is no 
 error in this charge. 
 
 It is a well-settled principle a soldier is not bound to obey an il- 
 legal order. If he does, and commits an offense, it is no justifica- 
 tion to him, and he is liable to be proceeded against and punished. 
 This principle was settled in the Supreme Court of the United States 
 in the case of Mitchell v. Harmony, 13 How. 129, 14 L. Ed. 75, in
 
 64 TUE ELEMENTS OF CRIME. (Ch. 2 
 
 which it was held a military officer cannot rely on an apparently 
 unlawful order of his superior as a justification. 
 
 The same principle was recognized and settled in the Court of 
 King's Bench, reported in 1 Cowp. ISO. In this case a captain in 
 the English navy, by orders of the British admiral, pulled down the 
 houses of some suttlers on the coast of Nova Scotia, who were 
 supplying the sailors with spirituous liquors, and the health of the 
 sailors was thereby much injured. The motive was a laudable one, 
 and done for the public service. The courts say it was an invasion 
 of the rights of private property without the authority of law, and 
 the officer who executed the order was held liable. This being the 
 rule in civil causes, the principle would be more strictly applied in 
 criminal ones. No order, if any was given, could justify the killing 
 of Capt. Thornhill, and the parties who did the act are amenable 
 to the criminal law. There being no error in the charge of the 
 court, the question arises: Do the facts in the record sustain the 
 verdict of the jury? And under the rulings of this court it is made 
 our duty in criminal causes to examine the proof and see if it war- 
 rants the conviction. 1 
 
 The proof does not satisfy us the prisoner aided or abetted in the 
 unlawful act of killing. A private soldier, when detailed by his 
 superior officer, has no discretion. By the rules of war he is bound 
 to obey the orders of those in command. When he enters the serv- 
 ice, unconditional submission to the lawful orders of his superior 
 officers is a duty imposed upon him by his oath and the articles of 
 war. The principle of law, "when men are assembled for an illegal 
 purpose, and the commission of an offense by any one of the party 
 is the act of the whole," is not applicable to this case. The plain- 
 tiff in error being a private soldier, being detailed, was bound to 
 obey the lawful order. The going to Richard Thornhill's without 
 a knowledge of the purpose for which the force was detailed was 
 not an illegal act; he had no right to inquire of the officer the ob- 
 ject and purpose of the detail, or what he had in view; and, if he was 
 present, unless he participated in the killing by firing, or aided and 
 abetted in the act of killing, he would not be criminally responsible. 
 It is stated as a principle of law, in 1 Hale, Pleas of the Crown, 
 444, and which we recognize and approve: "Although if many 
 come upon an unlawful design, and one of the company kill the ad- 
 verse party in pursuance of thai design, all are principals, yet if many 
 be together upon a lawful account, and one of the company kill an- 
 other of an adverse party, without any particular abetment of the 
 rest to this fact of homicide, they are not all guilty that are of the 
 npany, hut only those that gave the stroke, or actually abetted them 
 to do it." We forbear to comment further upon the testimony, as 
 
 i Pari of the opinion Is omitted.
 
 Sec. 10) EFFECT OF COERCION. 65 
 
 the case will undergo another investigation before a jury. We are 
 not satisfied, from the proofs in this record, with the verdict of the 
 jury. 
 
 The judgment will be reversed, and a new trial awarded. 3 
 
 RESPUBLICA v. McCARTY. 
 
 (Supreme Court of Pennsylvania, 1781. 2 Dall. 86, 1 L. Ed. 30O.) 
 
 The defendant was indicted for high treason, in levying war, etc., 
 by joining the armies of the king of Great Britain. 
 
 McKean, C. J. 8 The crime imputed to the defendant by the in- 
 dictment is that of levying war, by joining the armies of the king 
 of Great Britain. Enlisting, or procuring any person to be enlisted, 
 in the service of the enemy, is clearly an act of treason. By the de- 
 fendant's own confession it appears that he actually enlisted in a 
 corps belonging to the enemy; but it also appears that he had pre- 
 viously been taken prisoner by them and confined at Wilmington. 
 He remained, however, with the British troops for 10 or 11 months, 
 during which he might easily have accomplished his escape ; ano 
 it must be remembered that, in the eye of the law, nothing will ex- 
 cuse the act of joining an enemy but the fear of immediate death — 
 not the fear of any inferior personal injury, nor the apprehension oi 
 any outrage upon property. But, had the defendant enlisted merely 
 from the fear of famishing, and with a sincere intention to make his 
 escape, the fear could not surely always continue, nor could his in- 
 tention remain unexecuted for so long a period. 4 
 
 Verdict — Not guilty. 
 
 2 Accord: U. S. v. Jones, 3 Wash. C. C. (TJ. S.) 209, Fed. Cas. No. 15.494 
 (1813) ; In re Fair (C. C.) 100 Fed. 149 (1900). 
 
 See. for command of master, Sanders v. State (Tex. Cr. App.) 26 S. W. 62 
 (1894); parent, People v. Richmond, 29 Cal. 414 (1S66). Compare Reg. v. 
 Boober, 4 Cox, C. C. 272 (1S50). 
 
 In State v. Ash, 33 Or. 86, 54 Pac. 184 (1S98). it was held that a police 
 officer, who agreed for a reward to protect the keeper of a bawdy house from 
 prosecution, could not escape responsibility therefor by proof that in so do- 
 ing he acted under the orders of his superior officer, to whom he gave the 
 reward. 
 
 s Part of this case is omitted. 
 
 * Accord: U. S. v. Vigol, 2 Dall. 346, Fed. Cas. No. 16,621, 1 L. Ed. 409 
 (1705); mutiny, U. S. v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15,321 
 (1823). 
 
 Mik.Ce.L.— 5
 
 66 THE ELEMENTS OF CRIME. (Ch. 2 
 
 BREWER v. STATE. 
 
 (Supreme Court of Arkansas, 1904. 72 Ark. 145, 78 S. W. 773.) 
 
 Riddick, J. 1 The only remaining questions relate to the instruc- 
 tions given by the court to the jury. The court refused to instruct 
 the jury that, if the defendant shot Dortch under compulsion by 
 third parties to save his own life, they should acquit, but, on the 
 contrary, told them that, though one may lawfully kill an assailant, 
 if it be necessary to save his own life, he cannot lawfully slay an 
 innocent third person, even to save his own life, but ought to die 
 himself, rather than take the life of an innocent person. The question 
 presented by the exception to this ruling has been discussed by text- 
 writers more often than by the courts. But we feel very certain 
 that unlawful compulsion of the kind set up as a defense in this case 
 is not a sufficient justification for taking the life of an innocent per- 
 son. Sand. & H. Dig. § 1448; Arp v. State, 97 Ala. 5, 12 South. 
 301, 19 L. R. A. 357, 38 Am. St. Rep. 137; Reg. v. Tyler, 8 Car. & 
 P. 616; Reg. v. Dudley, 14 Q. B. Div. 273; 4 Blackstone, 30. 
 Whether, under some circumstances, compulsion of that kind might 
 go to reduce the grade of the offense and in mitigation of the pun- 
 ishment, we need not stop to inquire; for, if we shall concede that 
 this was so, the evidence here does not establish any such compul- 
 sion. The only evidence to prove compulsion was a confession made 
 by the defendant. While all parts of the confession must be con- 
 sidered, yet the jury were not required to believe such portions of 
 it as seemed to them unreasonable and improbable. And, though 
 they found that Brewer killed Dortch, they no doubt rejected the 
 improbable story that he did so under compulsion by armed men, 
 who walked through the woods with masks on their faces, stopping 
 occasionally to rub on the bottom of their shoes a red-looking liquid, 
 which they kept in a bottle. This part of the confession was cer- 
 tainly uncorroborated, and was first concocted and told by Brewer to 
 one of his friends under the belief that bloodhounds were about 
 to be put on the trail. It was no doubt an effort on his part to put 
 forth some plausible excuse that might shield him in the event he 
 was run down and arrested. But, if we take this confession as liter- 
 ally true, it does not show that defendant had no other option, ex- 
 cept to lose his own life or lake that of Dortch. He said that two 
 men armed with a shotgun and pistol captured him, and compelled 
 him to pilot them to the Dortch place, and then gave him one of the 
 uns and ordered him to kill Dortch; but he does not show 
 why, aft<r getting possession "f the gun, lie did not turn upon them 
 and defend himself. The tracks where defendant lay in wait slmwed 
 thai only one man was there, and the circumstances indicated thai 
 besides Dortch there was present at the time he was killed only the 
 
 i Part <>f Hie opinion Lb omll ted.
 
 SeC. 10) EFFECT OF COERCION. 67 
 
 man who fired the shot. A compulsion that could reduce or mitigate 
 such a crime must have been more than a fear of future harm. It 
 should appear that the danger of resisting such a force was imme- 
 diate and impending. The confession does not locate the position 
 of the masked men at the time the shot was fired, or show that 
 there was no alternative for the defendant, except to kill Dortch or 
 lose his own life. For this reason we think that the presiding judge 
 was fully justified in telling the jury that under these circumstances 
 compulsion was no justification or excuse for the crime charged. 
 
 On the whole case we find no prejudicial error, and are convinced 
 that the judgment was right. It is therefore affirmed. 2 
 
 III. Necessity. 
 UNITED STATES v. ASHTON. 
 
 (Circuit Court of the United States, 1834. 2 Sumn. 13, Fed. Cas. No. 14,470.) 
 
 Indictment against the defendants for an endeavor to commit a 
 revolt on board the ship Merrimack, of Boston, on the high seas. 
 Plea, not guilty. 
 
 At the trial it appeared that the ship sailed from Boston on Sat- 
 urday, 23d of August, 1834, on a voyage to Rio Janeiro, under the 
 command of Capt. Eldridge. She was then in a leaky condition, and 
 some efforts had been made by the captain to conceal the extent of 
 the leakage from the crew at the time of their shipment and coming 
 
 2 See, also, Leach v. State, 99 Tenn. 584, 42 S. W. 195 (1897) ; State v. 
 Fisher, 23 Mont. 540, 59 Pac. 919 (1S99). But see People v. Repke, 103 Mich. 
 459. 61 N. W. 861 (1895). 
 
 "The appellant has been indicted and convicted of the offense of perjury. 
 The sole defense attempted to be proved was that appellant's life had been 
 threatened by one Veto Dodd, unless he should go into court and testify so 
 as to criminate himself and certain other persons who were suspected of 
 having murdered a negro man and his wife, tenants upon the farm of Dodd. 
 
 "We can conceive of cases in which an act, criminal in its nature, may be 
 committed by one under such circumstances of coercion as to free him from 
 criminality. The impelling danger, however, should be present, imminent, 
 and impending, and not to be avoided. 
 
 "Such was not the character of the duress here, and the appellant was 
 not only possessed of the power and right of protecting himself, but he also 
 could have appealed to the law to shield him from the threatened danger. 
 
 "If Dodd, by whom the threats were made, should attempt to carry them 
 into execution, the appellant might lawfully oppose force to force, and, if 
 necessary, might, in the defense of his person, lawfully slay his assailant : 
 but, if appellant feared the superior strength or courage of Dodd, he might 
 have invoked the protection of the court." 
 
 Cooper, J., in Bain v. State, 67 Miss. 557, 7 South. 40S (1890). 
 
 There are Intimations in some of the cases that duress, though it does not 
 excuse a homicide, may reduce tbe grade of the crime, as it may present 
 the defendant forming a "willful, deliberate, and premeditated intent." See 
 Rizzolo v. Commonwealth. 12G Pa. 54, 17 Atl. 520 (1S89) ; State v. Nargashian, 
 26 R. I. 299, 58 Atl. 953, 106 Am. St. Rep. 715 (1904). 

 
 68 THE ELEMENTS OF CRIME. (Ch. 2 
 
 on board. The ship was 29 years old. The crew, on discovering 
 the leak in going out of port, expressed a wish to the captain to 
 return and have repairs made. The captain declined, but said if the 
 leak increased he would return. On Wednesday, the 27th of August, 
 the vessel encountered a gale and strained very much ; and the crew 
 were up all the night pumping, and were much exhausted. The 
 gale still continued, with every appearance of a continuance. The 
 crew then conversed together, and went to the captain and requested 
 him to return to Boston to repair, and expressed a firm belief that 
 the ship was unseaworthy and that they were all in imminent danger 
 of their lives. The captain declined, but proposed that they should 
 keep on, and, if necessary, he would stop at the Western Islands for 
 repairs. The crew insisted that he ought to return back to Boston, 
 and that the hazard of proceeding on the voyage was imminent ; and 
 then, finding that the captain persisted in going on the voyage, de- 
 claring that he thought the vessel seaworthy, they refused to do 
 duty any further, and seceded, and remained below several hours, 
 during which time the gale increased, and the ship was in great 
 danger. The captain, at length, in order to induce the crew to re- 
 turn to duty, -agreed to return to Boston ; and accordingly he wore 
 ship and returned to Boston, where he arrived on the ninth day after 
 her departure. The crew at all other times during the voyage and 
 in all other respects conducted themselves unexceptionably. 
 
 Story, J. 1 I do not think that the act for the government and regu- 
 lation of seamen in the merchants' service (Act July 20, 1790, c. 5G, 
 1 Stat. 131) has any bearing on the present case. The third section 
 of that act merely provides for the case where the mate and a ma- 
 jority of the crew of a vessel bound on a foreign voyage, after the 
 voyage is begun and before the vessel shall have left the land, shall 
 discover the vessel to be too leaky or otherwise unfit to proceed on 
 the voyage, and under such circumstances it makes it the duty of 
 the master to return to port. It does not in the slightest manner 
 trench upon the general rights and duties of the seamen under the 
 maritime law, but merely imposes an absolute duty on the master in 
 the case specified. All other cases and circumstances remain, there- 
 fore, as they were before, to be governed by the general principles 
 of law. In the present case the com bination to resist the authority 
 of the master is clearly established, and unless the seamen were, by 
 the circumstances, justified in compelling the master to return home, 
 the offense charged in the indictment is fully made out; and the 
 (.mis is on the seamen to establish the justification. Tf the ship was 
 at the time clearly Beaworthy and fit for the voyage, whether the 
 .en acted by fraud, or by mistake, or upon a fair, but false, judg- 
 
 i of the facts, it seems to me the offense was committed. If, 
 
 on the other hand, the ship was at the time clearly unsca worthy and 
 i Pari of nil* enso is omitted.
 
 Sec. 10) EFFECT OF COERCION. 69 
 
 unfit for the voyage, they were fully justified in insisting upon her 
 return home, and were guilty of no offense. The law deems the 
 lives of all persons far more valuable than any property, and will 
 not permit a master, under color of his acknowledged authority on 
 board of the ship, from rashness, or passion, or ignorance, to hazard 
 the lives of the crew in a crazy ship, or compel them to encounter 
 risks and perform duties which are so imminent and overwhelming 
 that they can escape only by the most extraordinary chances, and, 
 as it were, by miraculous exertions. If he should order them into 
 a boat on the ocean, at a time when they could scarcely fail of being 
 swamped or foundered, they would not be bound to obey. His com- 
 mands, to be entitled to obedience, must, under the circumstances, 
 be reasonable. The proposition cannot for a moment be maintained 
 that the crew are bound to proceed on the voyage in an unseaworthy 
 and rotten ship, at the imminent hazard of their lives, merely because 
 the master and officers choose in their rashness of judgment to pro- 
 ceed. It is true that in all cases of doubt the judgment of the master 
 and officers ought to have great weight, and from their superior 
 intelligence, ability, and skill it may be relied on with far more con- 
 fidence than that of the crew. They are embarked in the same 
 common enterprise and risks, and it cannot be ordinarily presumed 
 that they will hazard their own lives .in a vehicle which is really unfit 
 for the voyage. Still, if the case does occur, if they will insist on 
 proceeding, no matter at what hazard to life, and the ship is unsea- 
 worthy, I am clear that the crew have a right to resist, and to refuse 
 obedience. It is a case of justifiable self-defense against an undue 
 exercise of power. Neither of these cases is of any real difficulty. 
 But the case of difficulty is this : Suppose the ship to be in that 
 state in which the presumption of apparent unseaworthiness really 
 arises, and the crew bona fide act upon that presumption, and the 
 jury should be of opinion that they acted justifiably upon that pre- 
 sumption at the time; and suppose upon the trial it should turn out 
 (as in the present case it may) that there is real doubt whether the 
 ship be seaworthy or not, or upon the evidence the case is nearly 
 balanced in the conflict of credible, as well as competent, testimony, 
 and the jury should on the whole deem the preponderance of evi- 
 dence just enough to turn the scale in favor of seaworthiness, but 
 not to place it entirely beyond doubt; I ask whether, under such 
 circumstances, the crew ought to be convicted of the offense charged, 
 having acted upon their best judgment fairly, and in a case where 
 respectable, intelligent, and impartial witnesses should assert that 
 they should have done the same, and where even the jury them- 
 selves might adopt the same opinion, although there might be an 
 error in the fact of seaworthiness, as established at the trial? I have 
 great difficulty in coming to the conclusion that under such circum- 
 stances the crew were guilty of the offense charged. I am aware 
 of the dangers of not upholding with a steady hand the authority
 
 70 THE ELEMENTS OF CRIME. (Ch. 2 
 
 of the master; but I am not the less aware of the necessity of hav- 
 ing a just and tender regard for life. Seamen, when they contract 
 for a voyage, do not contract to hazard their lives against all perils 
 which the master may choose they shall encounter. They contract 
 only to do their duty and meet the ordinary perils, and to obey reason- 
 able orders. The relation between master and seaman is created by 
 the contract; but that relation, when created, is governed by the 
 general principles of law. Unlimited submission does not belong to 
 that relation. I have great repugnance to creating constructive of- 
 fenses, and especially where there is perfect integrity of intention. 
 I am aware that in some cases crimes may be committed independ- 
 ently of any supposed intention to do wrong. But in most cases, 
 and I think in a case of this nature, the intention and the act must 
 both concur to constitute an offense. There are cases even of the 
 highest crimes, as of homicide, where an honest and innocent mistake 
 in killing another, under circumstances of a reasonable presumption, 
 though a mistaken one, that the party killed intended to kill the other 
 party, when the latter will be excused by law. 
 
 1 have had this subject a good deal in my thoughts during the 
 progress of this trial (and the point is certainly a new one); and 
 the strong inclination of my opinion at present is, subject to be changed 
 by any argument hereafter urged, that the defendants ought not to 
 be found guilty, if they acted bona fide upon reasonable grounds of 
 belief, that the ship was unseaworthy, and if the jury, from all the 
 circumstances, are doubtful whether the ship was seaworthy, or 
 even in a measuring cast should incline to believe the ship seaworthy. 
 If she was clearly seaworthy beyond reasonable doubt, then the de- 
 fendants ought to be convicted, for the facts of the combination and 
 resistance are admitted. 
 
 Mem. Upon these suggestions of the court, the district attorney 
 said that his own opinion coincided with that of the court, and that 
 he would enter a nolle prosequi, but he had thought it his duty to 
 bring the case before the court; and the court said that the case 
 was very properly brought before it for decision. 2 
 
 2 In Ho?, v. Dudley & Stephens, 15 Cox, C. C. 024 (1884), the prisoners 
 and a boy were cast away on the high sons 1,000 miles from land, and were 
 
 lied in put out in an open boat. Having drifted for eight days with- 
 oul food and for bIx days without water, the prisoners killed the boy, who 
 was quite helpless and unable to make any resistance, and fed upon his body 
 for four days, when they were picked op by a passing vessel. The prisoners 
 were Indicted for murder, and the jury found a special verdict: "That if 
 the men bad not fed upon the body of the bey. they would probably have died 
 famine; thai the bey, being in a mucb weaker condition, was likely to 
 have died before them; thai at the time of the acl In question there was no 
 ill in Bight, nor any reasonable prosped of relief; thai under the circum- 
 stances there appeared to the prisoners every probability that unless they 
 then fed, or eery soon fed, upon the boy or one of themselves, they would 
 die of starvation; thai there was no appreciable chance of saving life, ezcepl 
 by silling some one for the others to eal ; that, assuming any necessity to 
 kill anybody, then- was do greater necessity for killing the boy than of the
 
 Sec. 10) EFFECT OF COERCION. 71 
 
 STATE v. GOFF. 
 
 (Supreme Court of Arkansas, 1859. 20 Ark. 289.) 
 
 Mr. Justice Compton delivered the opinion of the court. 
 
 Joshua Goff was indicted in the Crawford circuit court for labor- 
 ing on the Sabbath, etc. The trial resulted in his acquittal, and the 
 state appealed. 
 
 The facts as set out in the bill of exceptions, are briefly these : Goff 
 was engaged cutting and binding wheat — a negro man cutting and 
 Goff binding after him — on Sunday. For a week previous to the 
 cutting, Goff was swapping work in harvest with his neighbors, who 
 were afterwards to help him. Goff was a poor man, and had no 
 cradle of his own, and waited to get one from his neighbor. When 
 his neighbor quit cutting on Saturday evening, Goff got the cradle 
 and hired the negro to cut for him the Sunday following. The weath- 
 er was rather unsettled; rained the next day. Goff's wheat was very 
 ripe and wasting, and from its appearance then had been ripe enough 
 to cut four or five days before that time. This was all the evidence 
 adduced on the trial. 
 
 The court, on motion of attorney for the state, charged the jury: 
 
 (1) That if they believed from the evidence that Goff was laboring 
 in and about tying up wheat on Sunday, etc., within one year next 
 before the finding of the indictment, and that said labor was other 
 services than customary household duties, of daily necessity, comfort, 
 or charity, they should find him guilty. 
 
 (2) That the mere fact of Goff being a poor man, and having no 
 cradle of his own, would not justify him in having his wheat cut and 
 tying it up on Sunday. 
 
 On motion of Goff, and against the objection of the attorney for 
 the state, the court further charged the jury : 
 
 (1) That Goff had a right to preserve his property from waste on 
 the Sabbath day, and if his property was going to waste, and likely to 
 be lost by any unforeseen or unavoidable circumstance, he was justi-i 
 fiable in laboring to preserve it. 
 
 (2) That if the jury believe Goff could not have saved his wheat 
 on any other day, and it was necessary either to do so on Sunday or 
 suffer it to be lost, they must acquit. 
 
 The statute provides that every person who shall be found laboring 
 
 * * * men." Held, by the whole court, that the prisoners were guilty of 
 murder. 
 
 In U. S. v. Holmes. 1 Wall. Jr. (U. S.) 1, Fed. Oas. No. 15.383 (1842), sailors 
 and passengers having suffered shipwreck together, the sailors threw some 
 of the passengers overboard to keep the boat from sinking, and, on an in- 
 dictment for manslaughter, Baldwin, J., charged the jury that seamen had no 
 right, even in cases of extreme peril, to sacrifice the lives of the passengers to 
 preserve their own, and that, when it became necessary that some person 
 should be sacrificed to preserve the lives of the company, the victims should \ 
 be chosen by lot.
 
 72 THE ELEMENTS OF CRIME. (Ch. 2 
 
 on the Sabbath day, or shall compel his apprentice, servant, or slave 
 to labor or perform other services than customary household duties 
 of daily necessity, comfort, or charity, shall be deemed guilty of a 
 misdemeanor, etc. Gould's Dig. p. 373, c. 51, art. 5, § 1. 
 
 From an examination of the testimony it is manifest that there was 
 no evidence whatever conducing to prove such a necessity for labor- 
 ing on the Sabbath as is contemplated by the statute, nor of such ne- 
 cessity as is contemplated by the instructions given the jury at the in- 
 stance of Gofr. It was not shown that he even tried to procure a 
 cradle, and from poverty or any other cause did not succeed. He was 
 laboring for others when he should have been at work for himself, 
 and "waited" until Saturday night to get a cradle. 
 
 The husbandman should look forward to the ripening of his grain 
 as an event which must happen, and should make such timely provi- 
 sion for the harvest as not to violate the Sabbath. This is a duty en- 
 joined alike upon the poor and the rich. 
 
 The instructions given by the court for Goff, if correct, were ab- 
 stract, and under the circumstances were well calculated to mislead 
 the jury. 
 
 The judgment must be reversed, and the cause remanded, with in- 
 structions to grant the state a new trial.
 
 Sec. 1) THE CRIMINAL INTENT. 73 
 
 CHAPTER III. 
 THE CRIMINAL INTENT. 
 
 SECTION 1.— GENERAL PRINCIPLES. 
 
 All crimes have their conception in a corrupt intent and have their 
 consummation and issuing in some particular fact, which, though it 
 be not the fact at which the intention of the malefactor levelled, yet 
 the law giveth him no advantage of the error, if another particular en- 
 sue of as high a nature. — Bacon's Maxims, Reg. 15. 
 
 "The full definition of every crime contains, expressly or by im- 
 plication, a proposition as to a state of mind. Therefore, if the mental 
 element of any conduct alleged to be a crime is proved to have been 
 absent in any given case, the crime so defined is not committed, or, 
 again, if a crime is fully defined, nothing amounts to that crime which 
 does not satisfy that definition. * * * The mental element of 
 most crimes is marked by one of the words 'maliciously,' 'fraudulent- 
 ly,' 'negligently,' or 'knowingly,' but it is the general — I might, I 
 think, say, the invariable — practice of the Legislature to leave unex- 
 pressed some of the mental elements of crime. In all cases whatever, 
 competent age, sanity, and some degree of freedom from some kinds 
 of coercion are assumed to be essential to criminality ; but I do not 
 believe they are ever introduced into any statute by which any partic- 
 ular crime is defined. The meaning of the words 'malice,' 'negli- 
 gence,' and 'fraud,' in relation to particular crimes, has been ascertain- 
 ed by numerous cases. Malice means one thing in relation to murder, 
 another in relation to the malicious mischief act, and a third in rela- 
 tion to libel ; and so of fraud and negligence. * * * 
 
 "With regard to knowledge of fact, the law, perhaps, is not quite 
 so clear; but it may, I think, be maintained in every case knowledge 
 of fact is to some extent an element of criminality as much as com- 
 petent age and sanity. To take an extreme illustration : Can any one 
 doubt that a man who, though he might be perfectly sane, committed 
 what would otherwise be a crime in a state of somnambulism, would 
 be entitled to be acquitted? And why is this? Simply because he 
 would not know what he was doing. A multitude of illustrations of 
 the same sort might be given. I will mention one or two glaring
 
 74 
 
 THE CKIMINAL INTENT. 
 
 (Ch/3 
 
 3 
 
 ones. Levets' Case, 1 Hale, 474, decides that a man who, making a 
 thrust with a sword at a place where, upon reasonable grounds he 
 supposed a burglar to be, killed a person who was not a burglar, was 
 held not to be a felon, though he might be (it was not decided that he 
 was) guilty of killing per infortunium, or possibly se defendendo, 
 which then involved certain forfeitures. In other words, he was in 
 the same situation, as far as regarded the homicide, as if he had killed 
 a burglar. In the decision of the judges in McNaghten's Case, 10 
 CI. & F. 200, it is stated that if, under an insane delusion, one man 
 killed another, and if the delusion was such that it would, if true, 
 justify or excuse the killing, the homicide would be justified or ex- 
 cused. This could hardly be if the same were not law as to a sane 
 mistake. A bona fide claim of right excuses larceny, and many of the 
 offenses against the malicious mischief act. Apart, indeed, from the 
 present case, I think it may be laid down as a general rule that an al- 
 leged offender is deemed to have acted under that state of facts which 
 he in good faith, and on reasonable grounds believed to exist when he 
 did the act alleged to be an offense. 
 
 "Though this phrase (non est reus, nisi mens sit rea) is in com- 
 mon use, I think it most unfortunate, and not only likely to mislead, 
 but actually misleading, on the following grounds : It naturally sug- 
 gests that, apart from all particular definitions of crimes, such a thing 
 exists as a mens rea, or 'guilty mind,' which is always expressly or by 
 implication involved in every definition. This is obviously not the 
 case, for the mental elements of different crimes differ widely. 'Mens 
 rea' means, in the case of murder, malice aforethought; in the case of 
 theft, an intention to steal; in the case of rape, an intention to have 
 forcible connection with a woman without her consent; and in the 
 case of receiving stolen goods, knowledge that the goods were stolen. 
 In some cases, it denotes mere inattention. For instance, in the case 
 of manslaughter by negligence, it may mean forgetting to notice a 
 signal. It appears confusing to call so many dissimilar states of mind 
 by one name. It seems contradictory indeed to describe a mere ab- 
 sence of mind as a mens rea, or 'guilty mind.' The expression, again, 
 is likely to, and often does, mislead. To an unlegal mind it suggests 
 that by the law of England no act is a crime which is done from laud- 
 able motives; in other words, that immorality is essential to crime. 
 It will, I think, be found that much of the discussion of the law of 
 libel in Shipley's Case, 4 Doug. 73, 21 St. Tr. 817, proceeds upon a 
 ore or l< di tincl belief to this effect. It is a topic frequently in- 
 ted upon in reference to political offenses, and it was urged in a 
 recent notorious case of abduction, in which it was contended that 
 motives said to be laudable were an excuse for the abduction of a 
 child from its parents. Like most legal maxims, the maxim on 'mens 
 rea' appear.-- to me i" be too short and antithetical to be of much prac- 
 tical value. It is, indeed, more like the title of a treatise than a practical 
 rule. I have tried to ascertain its origin, but have not succeeded in
 
 Sec. 2) DISTINCTION BETWEEN INTENT AND MOTIVE. 75 
 
 doing so. It is not one of the 'regulse juris' in the digests. The earli- 
 est case of its use I have found is in the Leges Henrici Primi, v. 28, 
 in which it is said: 'Si quis per coaxCtionem abjurare cogatur quod per 
 multos annos quiete tenuerit non in jurante set cogente perjurium 
 erit. Reum non facit nisi mens rea.' 1 In Broom's Maxims the ear- 
 liest authority cited for its use is 3 Inst. c. 1, fol. 10. In this place 
 it is contained in a marginal note, which says that, when it was found 
 that some of Sir John Oldcastle's adherents took part in an insurrec- 
 ion 'pro timore mortis et quod recesserunt quam cito patuerant,' the 
 judges held that this was to be adjudged no treason, because it was 
 for fear of death. Coke adds: 'Et actus non facit reum nisi mens 
 sit rea.' This is only Coke's own remark, and not part of the judg- 
 ment. Now Coke's scraps of Latin in this and the following chapters 
 are sometimes contradictory. Notwithstanding the passage just quot- 
 ed, he says in the margin of his remarks on opinions delivered in 
 Parliament by Thyrning and others in the 21 R. 2 : 'Melius est omnia 
 mala pati quam malo consentire' (22-23), which would show that Sir 
 J. Oldcastle's associates had a mens rea, or 'guilty mind,' though they 
 were threatened with death, and thus contradicts the passage first quot- 
 ed. It is singular that in each of these instances the maxim should be 
 used in connection with the law relating to coercion." 
 
 Extract from the opinion of Stephen, J., in Reg. v. Tolson, 23 
 Q. B. Div. 168 (1889). 
 
 SECTION 2.— DISTINCTION BETWEEN INTENT AND 
 
 MOTIVE. 
 
 SCHMIDT v. UNITED STATES. 
 
 (Circuit Court of Appeals, Ninth Circuit, 1904. 133 Fed. 257, 66 C. C. A. 389.) 
 
 Gilbert, Circuit Judge. 2 The plaintiff in error was indicted and 
 prosecuted in the United States Circuit Court for the District of 
 Washington upon an indictment containing ten counts, in each of 
 which he was charged with swearing falsely in certain naturalization 
 proceedings pending in the superior court of the state of Washington 
 for Walla Walla county. 
 
 Error is assigned to the refusal of the court to instruct the jury 
 "that, when the evidence fails to show any motive to commit the 
 
 i "The original source is S. Augustinus Sermones, No. ISO, c. 2 (Migne Patrol, 
 
 vol. 38, col. 974):^lReara linguam non facit nisi mens rea.' This passes into 
 
 the Decretum C. 3, C. 22, qu. 2. The author of the Leges took it from some 
 intermediate book in which the linguam may possibly have disappeared." Pol- 
 lock & Maitland's Hist. Eng. Law, vol. 2, p. 474, note 5. 
 
 2 Part of the opinion is omitted. . 
 
 ■
 
 76 THE CRIMINAL INTENT. (Ch. 3 
 
 crime charged on the part of the accused, this is a circumstance in 
 favor of his innocence; and in this case, if the jury find upon care- 
 ful examination of all the evidence that it fails to show any motive 
 on the part of the accused to commit the crime charged against him, 
 then this is a circumstance which the jury ought to consider, in con- 
 nection with all the other evidence in the case, in making up their 
 verdict." 
 
 This instruction so requested, while proper in some cases, .Jiad. no 
 rightful application to the evidence in the case before lhe_cpurt. It 
 was clearly proven by the direct testimony of witnesses, and it was 
 not disputed, that the plaintiff in error went to these aliens, who had 
 not been in the United States the requisite time to entitle them to 
 citizenship, and actively induced them to appear before the court 
 and take out their final papers, and in that connection falsely testi- 
 fied before the court as charged in the indictment. The jury may 
 inquire into the motive of a defendant when it is necessary to resort 
 to it in arriving at the ultimate fact that it was he who committed 
 the crime charged. The motive then becomes an aid in completing 
 the proof of the commission of the act; and in such a case it is 
 proper to charge the jury that the absence of motive, if they fail to 
 find one, may be taken into consideration in determining the question 
 whether the crime was committed by the accused or by some other. 
 The instruction is particularly applicable to cases where the proof 
 consists in circumstantial evidence. In such a case it may be con- 
 trolling. People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846. That 
 the plaintiff in error did falsely testify was not denied. His motive 
 in so doing was not disclosed, and it was not necessary that it should 
 be. While the prosecution is never required to prove a motive for 
 the crime, it is always permitted to do so. In the present case the 
 proof was not circumstantial, but was direct, and was undisputed. 
 To have given the charge requested would have been to tell the 
 jury that they were at liberty, in determining whether they would 
 give credence to the positive and uncontroverted testimony of wit- 
 nesses to the overt act of the plaintiff in error, to be influenced by 
 the fact that they failed to find a motive for his act. Such is not the 
 law. 
 
 The judgment of the District Court is affirmed. 
 
 REX v. REGAN. 
 (Central Criminal Court, isr,o. 4 Cox, C. C. 335.) 
 
 The prisoner was indicted for maliciously aand feloniously setting 
 fire to a certain building, with intent to injure one Joseph Adams. 
 
 Prom the evidence it appeared th.-it the prisoner Ra3 given notice 
 of other fires, and had claimed the reward usually paid on such occa-
 
 Sec. 2) DISTINCTION BETWEEN INTENT AND MOTIVE. 77 
 
 sions at the engine station, and he had apparently no other motive 
 in setting fire to the premises in question than the expectation of 
 getting such reward. 1 
 
 Payne, for the prisoner, contended belere -the jury that if they be- 
 lieved that the prisoner's intent was not to injure the prosecutor, but 
 merely to obtain the reward for giving the earliest information, that 
 he could not be convicted upon the indictment. 
 
 Erle, J. I entirely dissent from this view of the case. If the pris- 
 oner willfully set fire to the premises, the jury will be perfectly justi- 
 fied in finding that his intent was to injure the person whose proper- 
 ty they were, and who would necessarily be injured by such an act, 
 although he might have an ulterior object of obtaining the reward. 
 There have been several cases recently of persons administering 
 poison to others for the purpose of obtaining the money for which 
 their lives were insured, but no one ever dreamed that, because they 
 were actuated by such a motive, they would be entitled to an acquittal 
 when indicted for administering poison with intent to kill. 
 
 The prisoner was found guilty. 2 
 
 (Court for Crown Cases Reserved, 1S9S. 19 Cox, C. C. 219.) 
 
 REGINA v. SENIOR. 
 
 
 This case, stated by Wills, J., was as follows: 
 
 The prisoner was indicted and tried before me on the 24th day of 
 November, 1898, for the manslaughter of his child, an infant of the 
 age of nine months. 
 
 The child had died of diarrhoea and pneumonia. The prisoner had 
 not supplied it with any medical aid or medicine, though aware that the 
 case was of great gravity, and that the child would probably die. 
 
 The medical evidence was that the child's life would certainly have 
 been prolonged, and in all probability saved, if medical assistance had 
 been procured. 
 
 No question was raised as to the prisoner's ability to procure and 
 pay for medical assistance, and it was shown that he earned about 35 
 shillings a week. 
 
 He was shown to have been a good and kind father in all other 
 respects, and he bore an excellent character for general good conduct. 
 He had had twelve children, of whom seven were dead, and he had 
 had before experiences of the same kind as those relating to the pres- 
 ent inquiry, for the ^question he put to the inspector of police was, 
 "Except in regard to this case," and he then corrected himself, "Ex- 
 
 i Part of this ease, involving a question of evidence, is omitted. 
 2 See. also, Walls v. State, 7 Blaekf. (Ind.) 572 (1S45). 
 
 That the motive for the act done was a good one is likewise immaterial. 
 People v. Kirby, 2 Parker, Cu. R. (N. Y.) 28 (1823).
 
 
 78 THE CRIMINAL INTENT. (Ch. 3 
 
 cept in regard to these cases, have you ever known anything against 
 me?" 
 
 The prisoner is a member of a sect called the "Peculiar People," 
 whose religious doctrines as to the treatment of sick people are cer- 
 tainly to thf ordinary apprehension remarkable. They base them up- 
 on the Epistle of James, chapter 5, verses 14 and 15: "Is any sick 
 among you? Let him call for the elders of the church, and let them 
 pray over him, annointing him with oil in the name of the Lord. And 
 the prayer of faith shall save the sick, and the Lord shall raise him 
 up, and if he have committed sins they shall be forgiven him." They 
 do not allege that medical aid is here expressly forbidden, but say 
 that to make use of it is to indicate a want of faith in the Lord. 1 
 
 The jury found the prisoner guilty, adding that they considered 
 medical aid and medicine to have been necessary for the child, but 
 that they were of opinion that the prisoner had done all that he could 
 in the best interests of the child, except in not providing medical aid 
 and medicine. 
 
 I said nothing to the jury as to whether the prisoner was acting 
 bona fide and according to his conceptions of duty, because the learn- 
 ed counsel -had in his opening speech said that it was not in question 
 that he was so doing. 
 
 The prisoner was not represented by counsel, and I had not the 
 advantage of any argument on his behalf as to the meaning of "will- 
 fully-n£glects" in St. 57 & 58 Vict. c. 41, and I therefore reserved the 
 case for the opinion of the Court for Crown Cases Reserved. 
 
 The questions for the opinion of the court are whether my direc- 
 tion was right in law, and, if so, whether there was evidence upon 
 which the jury could properly convict the prisoner. If both the ques- 
 tions are answered in the affirmative, the conviction is to stand ; if 
 either is answered in the negative, the conviction is to be quashed. 
 
 The prisoner was released on bail pending the decision of this court. 
 
 H. Sutton, for the prisoner. The prisoner, having done all that his 
 conscience permitted him to do for the child, could not be guilty of 
 neglect. The evidence was that he was attentive, and that he had pro- 
 vided a nurse for the child, and everything except drugs and medical 
 attendance. These he did not provide because of his religious be- 
 lief. He was not guilty of a culpable omission of duty at common 
 law, for at common law he was not obliged to provide medical at- 
 tendance or drugs for his child. Reg. v. 1 lines, 80 C. C. Sessions 
 Papers, per Piggot, B., at page 312. Nor docs the omission to pro- 
 vide medical attendance constitute culpable neglect at common law, if 
 the omission is 1: of a religious belief. Keg. v. Wagstaffe, 10 
 
 , C. C. 530; Reg. v. Hurry, 76 C. C. ons Papers, 63. The 
 
 not guilty of tin nse oj will fully neglect- 
 
 ing his child, for, although St. 3] & 32 Vict. c. 122, § 37, did make it 
 
 i Pari of the Btatemenl is omitted.
 
 vSec. 2) DISTINCTION BETWEEN INTENT AND MOTIVE. 79 
 
 an offense to willfully neglect to provide medical aid for a child to 
 the injury of its health, that statute was repealed by St. 52 & 53 Vict, 
 c. 44, § 18. The words "medical aid" are omitted from that statute, 
 and from the prevention of cruelty to children act of 1894 (St. 57 & 
 58 Vict. c. 41), by which it again was repealed. In Reg. v. Dowries, 
 33 L. T. Rep. 675, 1 Q. B. Div. 25, a conviction was upheld because 
 of the words of St. 31 & 32 Vict. c. 122, § 37 (4), which was then 
 in force. 
 
 Horace Avory, for the Crown, was not called on. 
 
 Lord Russell, C. J. In this case we have to deal with a case stated 
 by my Brother Wills, on the trial of the defendant on a charge fram- 
 ed with reference to St. 57 & 58 Vict. c. 41. The first question 
 we have to consider is whether the learned judge was right in his di- 
 rection to the jury as to what constitutes willful neglect; and the 
 second question is whether there was evidence on which the jury 
 could convict the defendant of willful neglect. Now the charge is 
 preferred under the first section, which provides that if any person 
 who has the custody, charge, or care of any child under the age of 
 16 "wilfully" (I omit the words which have no bearing on the point) 
 "neglects" such child, that person shall be guilty of a misdemeanor. 
 It is useful to refer to the history of the legislation on the subject. 
 By St. 31 & 32 Vict. c. 122, § 37, which is a statute dealing with the 
 relief of the poor, it was enacted that any parent who willfully neg- 
 lected to provide adequate food, clothing, medical aid, or lodging for 
 his child, being in his custody, under the age of 14 years, whereby the 
 health of such child was seriously injured, was guilty of an offense. 
 Therefore it became under that statute the duty of a parent to provide I 
 medical aid for his children. "That statute was followed by a statute 
 of 1889, with which it is not necessary to deal. It is important to 
 remember that the statute of 1868 was passed after the judgment of 
 Willes, J., in Reg. v. Wagstaffe, 10 Cox, C. C. 530 ; Willes, J., hav- 
 ing given judgment in January, while the statute is dated August. We 
 now come to the statute of 1894, and there is a great difference in 
 the wording of the act, for "medical aid" is dropped. It is difficult to 
 believe that the Legislature was taking a retrograde step, for the stat- 
 ute shows that it was passed in consequence of increased anxiety for 
 the welfare of children. In the case we are now considering it is 
 not disputed that the child was in a dangerous state, to the knowledge 
 of the parent. It is not disputed, and the jury have found, that its 
 life would have been saved if medical assistance had been given, and 
 that the parent was in a position to provide medical aid ; further, that 
 the parent did not give medical aid, and that he did not because he be- 
 lieved to do so would be a want of faith in the methods which he 
 believed to be prescribed by the Bible, and that he was otherwise an 
 attentive parent ; lastly, that the child died. These being the facts, the 
 learned judge charged the jury as follows: "I told the jury that they 
 must first of all be satisfied that the death of the child had been cans-
 
 80 THE CRIMINAL INTENT. (Ch. 3 
 
 ed or accelerated by the want of medical assistance; secondly, that 
 medical aid and medicine were such essential things for the child that 
 reasonably careful parents in general would have provided them ; and, 
 \thirdly, that the prisoner's means would have enabled him to do so 
 Without an expenditure such as could not be reasonably expected 
 from him." Was that direction substantially right? I think it was. 
 It seems to me to be the same, whether you take the words separately 
 or conjoined. The words are, if a person "wilfully neglects." It 
 seems to me very clear what this phrase means. "Wilfully" means 
 done deliberately and not by inadvertence, and "neglect" the omission 
 to do something for the benefit of the child — in other words, intention- 
 al failure to take those steps which the experience of mankind shows 
 to be generally necessary. In these days the resources of medical 
 science are within the reach of the humblest and the poorest. The 
 learned counsel has argued with his invariable clearness that because 
 the father was an affectionate parent, and because he neglected to pro- 
 vide nothing for the child except that which its condition urgently re- 
 quired, that it was impossible to say that he was guilty of willful neg- 
 lect. When a child breaks its thigh bone and an operation is neces- 
 sary, which is in the highest degree dangerous while the child is in a 
 state of consciousness, would the father be guilty of neglect if he re- 
 fused to permit the administration of an anaesthetic drug? What if 
 the child in an infantile complaint is in danger of suffocation, and it 
 is necessary to perform tracheotomy, would it be willful neglect to re- 
 fuse to permit the use of an anaesthetic? I think that in either of 
 these cases the parent would properly be convicted. I dissent entire- 
 ly from the view said to have been expressed by Piggot, B., Reg. v. 
 Hines, 80 C. C. Sess. Papers, p. 312, and I think that in this case an 
 indictment for gross and culpable neglect could be supported at com- 
 mon law. 
 
 Wills, J. This is a case of a class which so frequently comes be- 
 fore the judges that I thought it well to state the case in order that 
 an authoritative decision might be delivered on the point. 
 
 Grantham, J. I agree. 
 
 Day, Lawrence, and Wright, ]]., concurred. 
 
 Conviction affirmed. 2 
 
 2 See, also, bigamy by a Mormon, Reynolds v. U. S.. 98 U. R. 14.". 2." L. Ed. 
 244 (1878); beating drum in city in performance of religious exercises, State 
 v. White, 64 N. II. 4S, 5 Atl. 828 (18S0).
 
 
 ,*Art I 
 
 
 
 I 
 
 Sec. 3) 
 
 CONSTRUCTIVE INTENT. 
 
 81 
 
 SECTION 3.— CONSTRUCTIVE INTENT. 
 
 ISHAM v. STATE. 
 (Supreme Court of Alabama, 1SG2. 38 Ala. 213.) 
 
 The indictment in this case contained three counts; the first charg- 
 ing that the prisoner, who was a slave, the property of Capt. W. F. 
 Hanby, "unlawfully and with malice aforethought killed George M. 
 Hagood, by shooting him with a gun" ; the second, that he "unlaw- 
 fully and intentionally, but without malice, killed George M. Hagood, 
 a white person," etc.; and the third, that he "unlawfully, but without 
 malice or the intention to kill, killed George M. Hagood, a white 
 person," etc. The circuit court sustained a demurrer to the third 
 count, and the prisoner pleaded not guilty to the other counts. 
 
 The prisoner asked the court to charge the jury as follows : "If 
 the jury believe, from the evidence that the deceased disguised him- 
 self, by blacking himself and the manner in which he was clothed, 
 for the purpose of deceiving the prisoner and making him believe that 
 he was a runaway slave, and under such disguise went to the prison- 
 er's house on his master's premises at an unusual hour of the night, 
 between midnight and day, and there, by his disguised condition and 
 the manner in which he acted, deceived the prisoner, and that the 
 prisoner in truth and in fact believed that the deceased was a run- 
 away negro slave, and under that delusion shot and killed the de- 
 ceased, then he is neither guilty of murder, nor of the voluntary man- 
 slaughter of a white person, nor of the involuntary manslaughter of 
 a white person in the commission of an unlawful act." The court 
 refused this charge, and the prisoner excepted. 
 
 The verdict of the jury was, "Guilty of voluntary manslaughter, 
 as charged in the second count in the indictment." 
 
 A. J. Walker, C. J. 1 It is not indispensable to the constitution 
 
 of a crime that the prisoner should commit the very act intended. 
 
 Certainly there must concur a wrongful intent and a wrongful act. 
 
 But he who, aiming to accomplish one wrongful act, fails in that, 
 
 but perpetrates another, is not excused. The wrongful intent and the 
 
 wrongful act are said to coalesce and make the crime. Bishop on Cr. 
 
 .Law, § 254. Numerous illustrations of this doctrine are to be found 
 
 (\^Jin__tlie books. Where there is a design to commit a felony, and a 
 
 r homicide ensues, against or beyond the intent of the party, he is 
 
 guil ty of murder; but, if the intent went no further than to commit 
 
 jfrd La bare tresp ass, it will be man slaughter . 1 East's Cr. Law, 255. If 
 
 A. gives apbisoned applrTo^B^7 intending to poison B., and B., igno- 
 
 i Part of this case, relating to another point, is omitted. 
 Mik.Cr.L.— G
 
 82 THE CRIMINAL INTENT. (Ch. 3 
 
 rant of it, gives it to a child, who takes it and dies, A. is guilty of 
 the murder of the child, but B. is guiltless. And so, if one, out of 
 malice at A., shoots at him, but misses hirm_and kills B., it is no less 
 -mu rder t hajj_ if he killed the person intended. Wharton's Cr. Law, 
 § 965. These illustrations will suffice to show that, to the conviction 
 of a slave for the homicide of a white man, it is not indispensable 
 that there should exist an intent to kill a white person, or even a 
 knowledge that the deceased was a white man. Indeed, one may be 
 guilty of involuntary manslaughter, where there was no intent to 
 kill. A homicide, resulting from an attempt to commit any unlawful 
 act, would be manslaughter; and therefore, if a slave should shoot 
 unlawfully at a beast, and by chance kill a white person, he would 
 be guilty of the involuntary manslaughter of a white person in the 
 commission of an unlawful act, although he might be ignorant of 
 the proximity of the person slain. Surely the crime could not be 
 less, if the purpose was to kill a negro instead of a beast; and yet 
 such is the conclusion to which the argument for the prisoner would 
 lead. The statute does not make a knowledge that the deceased was 
 a white person an ingredient of the offense, and we cannot decide 
 that it is. There being a criminal intent, the defendant is guilty, not- 
 withstanding he was mistaken as to the person upon whom his un- 
 lawful purpose fell. See the authorities collected in 1 Bishop on Cr. 
 Law, § 247, and on the Attorney General's brief. 
 
 The fifteenth of Lord Bacon's maxims is as follows : "In crim- 
 inalibus, sufficit generalis malitia intentionis, cum facto paris gradus." 
 3 Bacon's Works, 238 ; Broom's Legal Maxims, 238. In reference 
 to this maxim the learned author says: "All crimes have their con- 
 ception in a corrupt intent, and have their consummation and issuing 
 in some particular fact, which, though it be not the fact at which 
 the intention of the malefactor leveled, yet the law giveth him no 
 advantage of that error, if another particular ensue of as high a 
 nature." We do not find this maxim so recognized by subsequent 
 writers on the criminal law, and by those adjudging criminal causes, 
 as to induce us without hesitation to adopt it as a correct exposition. 
 The explanation of the maxim would seem to imply that, to consti- 
 tute the crime, it is only necessary that the act should be of as high 
 a nature as the intent, and not to imply a denial that the crime might 
 take its complexion from an act of criminality higher than the intent. 
 If this be the construction, it would not aid the accused. If the 
 maxim import thai there must be a perfect correspondence between 
 the intent and the act, it cannot he harmonized with principles too 
 well established to be controverted. A homicide, not intended, but 
 committed, in the perpetration of burglary or arson, would be mur- 
 der, notwithstanding the offenses intended are not, in our law, of 
 as high a grade or subject to as severe penalties as murder. We 
 shall not engage in any speculation as to the true import and opera- 
 tion, or the authority, of the maxim, but shall content ourselves with
 
 SeC. 3) CONSTRUCTIVE INTENT. 83 
 
 announcing the conclusion that we cannot be led by it to oppose the 
 proposition which we now proceed to state, as follows: 
 
 A slave, who kills a white man, intending to kill a negro, is guilty 
 of a criminal homicide in the degree in which he would have been 
 guilty if the person slain had been a negro, and he is subject to the 
 punishment prescribed for the commission of the offense upon a 
 white person. The maxim, in_its litej^l translation, only_ requires 
 that the_act_sjiould be__of equal g rade with the inte nt; not that the 
 same punishment should be incident to the thing done as to the thing 
 intended. Crimes may be of the same degree, and yet subjected by 
 law, founded in public policy, to different punishments. The man- 
 slaughter of a white man by a slave and the manslaughter of a negro 
 by a slave belong to the same degree of homicide, and yet are sub- 
 jected to variant punishments. So, also, manslaughter committed 
 with a bowie knife and manslaughter committed with a different 
 weapon are offenses of the same degree, and yet there is a distinc- 
 tion made in the punishments prescribed. Numerous other illustrations 
 might be drawn from our criminal law. In all those cases, as in 
 this, the difference is not in the degree, but in the punishment; and 
 the difference in the punishment is the result of some incident to the 
 crime, which from public policy the law makes an aggravation. If, 
 therefore, we take the maxim in its literal import, we find nothing 
 inconsistent with our position. 
 
 In the case of Bob v. State, 29 Ala., 20, it was argued that the 
 prisoner, a slave, when committing an assault and battery upon an- 
 other slave, by accident struck and killed the deceased, who was a 
 white person. In reference to that aspect of the case, this court said : 
 "We hold that if a slave, in the attempt unjustifiably to commit an 
 assault, or assault and battery, on another slave, kill a white person 
 by misadventure, he is guilty of involuntary manslaughter, under sec- 
 tion 3312 of the Code of 1852." This is an express adjudication 
 of the point, made in this case, that a slave cannot be guilty of man- 
 slaughter of a white person, when the intent was aimed at a negro. 
 If one, intending to beat a negro and unintentionally killing a white 
 person, is guilty of the homicide of a white person, a fortiori is a 
 slave thus guilty, when, intending to kill a negro, he by mistake kills 
 a white person. 
 
 We are content to abide by the decision in Henry's Case, 33 Ala. 
 389. Upon the principle of that decision, the accused might be con- 
 victed of the involuntary manslaughter of a white person, under a 
 count for the voluntary manslaughter of a white person. There was, 
 therefore, no error in the charge given by the court. 
 
 The judgment of the court below is affirmed, and its sentence must 
 be executed, as therein ordered. 2 
 
 2 See, also, Rex v. Pedlev, Cald. 218 (1782) ; State v. Wasmer, 78 Mo. 644. 
 47 Am. Rep. 131 (1S83) ; Reddick v. Commonwealth (Ky.) 33 S. W. 416 (1895).
 
 84 
 
 THE CRIMINAL INTENT. 
 
 (Ch.3 
 
 
 REGINA v. PACKARD. 
 
 (Central Criminal Court, 1S41. 1 Car. & M. 236.) 
 
 Manslaughter. 
 
 The facts of the case were as follows: The prisoner, John Rich- 
 ard Packard, was a chemist in Drury Lane; and on the 5th of No- 
 vember, 1841, an officer of the sheriff of Middlesex named Ham- 
 blyn, having a warrant against his goods, executed it about 12 at 
 noon, and left the deceased, Michael Aungier, in possession for him. 
 Aungier, according to the evidence of Hamblyn, was a man in good 
 health, about 60 years of age, and was quite sober at the time he 
 was left on the premises about 1 o'clock in the day. The deceased 
 remained in the kitchen of the house, and was quite sober up to 9 
 o'clock in the evening. At that time John Richard Packard went into 
 the kitchen, and the deceased asked him for a glass of gin. He re- 
 plied, "Very well; you shall have it;" but instead of a glass of gin, 
 gave him a glass of rum and water, which he drank. About half- 
 past 9 J. R. Packard asked him to go into the parlor. 
 
 It_further appeared that the remainder of the evening was spent 
 by Aungier, John Packard, Joseph Packard, and Kennett in eating 
 and drinking; that at half-past 1 o'clock Aungier was very "'drunk, 
 and unable to help himself; that he was given more liquor by the 
 prisoners, and then carried by them down the stairs and put into the 
 cabriolet, two of the defendants riding on the box. The cabman, by 
 direction of the prisoners, drove to Covent Garden, and, arriving 
 there, the prisoners left the cabriolet without taking any notice of 
 deceased, and ordered the cabman to drive to No. 18 Chancery Lane. 
 The cabman drove to his destination, and, after fruitless efforts to 
 arouse the inmates, drove to Bow street, took deceased from the 
 cab and placed him on a doorstep, and waited for a policeman, who, 
 coming up a few minutes later, pronounced Aungier dead. 1 
 
 Parke, B. The first question will be whether the prisoners, or 
 any of them, put the deceased into the cabriolet; and upon this I 
 think nothing need be said. If you are of opinion that they did, then 
 the questions will be: First, whether they, or any of them, were 
 guilty of administering or procuring the deceased to take large quan- 
 tities of liquor for an unlawful purpose, or whether, when he had 
 lal.ui it, they put him into the cabriolet for an unlawful purpose. 
 If you think that the three prisoners, or one of them, made him 
 excessively drunk to enable the prisoner, John Richard Packard, to 
 prevent the completion of the execution, or if you are satisfied that 
 the object of the prisoners, or any of them, was otherwise unlawful, 
 and that the death of the deceased was caused in carrying their un- 
 lawful object into effect, they must be found guilty. The simple 
 
 i Pari of this case is omitted.
 
 SCC. 3) CONSTRUCTIVE INTENT. 85 
 
 fact of persons getting together to drink, or one pressing another 
 to do so, is not an unlawful act, or, if death ensue, an offense that 
 can be construed into manslaughter ; and if what took place in the 
 present instance was really and solely for the purpose of good fel- 
 lowship, for making merry, or causing the misfortunes of the elder 
 Packard to be forgotten, though the act was attended with death, 
 this will not be a case of manslaughter. Upon the first question I 
 have stated it will be essential to make out on this indictment that 
 the prisoners administered the liquor with the intention of making 
 the deceased drunk and then getting him out of the house; and if 
 that be doubtful, still, if you think that, when he was drunk, they 
 removed him into the cabriolet with the intention of preventing his 
 returning, and death was the result of such removal, the act was un- 
 lawful, and the case will be a case of manslaughter. If, however, 
 you think they all got drunk together, and that afterwards he was 
 put into the cabriolet with an intention that he should take a drive 
 only, that was not an unlawful object, such as I have described, and 
 the prisoners will be entitled to an acquittal; or if you entertain a 
 conscientious doubt as to their real object, you ought also, on that 
 ground, to acquit them. [His lordship then stated the circumstances \, 
 of the case and proceeded.] The first point to be decided is whether /* 
 the acts of the prisoners, whatever may be their character, were the 
 cause of the death of the deceased. As to that, you are to look to 
 the evidence of the surgeons, and see whether those acts caused the 
 death of the deceased to take place when it did; that is to say,, 
 whether those acts accelerated his death. Now, it seems to result 
 from what the surgeons say — and assuming the facts in evidence 
 to be correct — that the acts of the prisoners did accelerate the death, 
 and if you are of that opinion it will justify you in inquiring into^ 
 those acts. One observation as to this is that one of the prisoners 
 might have had a motive in getting the sheriff's officer out of pos- 
 session voluntarily for the purpose of disposing of the goods he had 
 seized, and that in furtherance of that motive the original object of 
 all was to make him drunk, and so to get rid of him. But, sup- 
 posing you cannot clearly trace that intention, still you will have to 
 inquire with what view they put him into the cabriolet, left him in 
 Covent Garden, and gave a false address, to which they directed he 
 should be driven. It is true that there is no direct proof that any 
 one pressed him to drink; but, if the liquor was placed before 
 him with the illegal object I have mentioned, that would be enough 
 without such direct proof. You will therefore consider whether all 
 three, or any, of the prisoners had this illegal object; whether they 
 made the deceased drunk with a view of getting rid of him from 
 the house, and then, with the same intention, put him into the 
 cabriolet; or whether, having made him drunk without any such 
 original object, when he was drunk they put him into the cabriolet 
 for the purpose of so getting rid of him; and whether you are sat-
 
 86 THE CRIMINAL INTENT. (Ch. 3 
 
 isfied that the acts of the prisoners, or any one of them, done with such 
 illegal object, contributed to his death. 
 
 The jury retired to consider their verdict, and on their return 
 into court asked a question of his lordship, in answer to which they 
 were told that if the prisoners, when the deceased was drunk, drove 
 him about in the cab, in order to keep him out of possession, and 
 by so doing accelerated his death, it would be manslaughter. They 
 then immediately returned a verdict of 
 
 Guilty — and the prisoners were respectively sentenced to be im- 
 prisoned in Newgate for one calendar month. 
 
 REGINA v. FRANKLIN. 
 (Sussex Assizes, 1S83. 15 Cox, C. C. 163.) 
 
 Charles Harris Franklin was indicted, before Field, J., at Lewes, 
 for the manslaughter of Craven Patrick Trenchard. 
 
 The facts were as follows : 
 
 On the morning of the 25th day of July, 1882, the deceased was 
 bathing in the sea from the west pier, at Brighton, and swimming 
 in the deep water around it. The prisoner took up a good-sized box 
 from the refreshment stall on the pier and wantonly threw it into 
 the sea. Unfortunately the box struck the deceased, C. P. Trenchard, 
 who was at that moment swimming underneath, and so caused his 
 death. 
 
 Gore, for the prosecution, urged that it would, apart from the 
 question of negligence, be sufficient to constitute the offense of 
 manslaughter; that the act done by the prisoner was an unlawful 
 act, which the facts clearly showed it to be ; and cited the case of 
 Rex v. Fenton, 1 Lewin's Cr. Cas. 179. This case is referred to 
 in 1 Russell on Crimes, 638 : "If death ensues in consequence of 
 a wrongful act, which the party who commits it can neither justify 
 nor excuse, it is manslaughter. An indictment charged that there 
 was a scaffolding in a certain coal mine, and that the prisoners, by 
 throwing large stones down the mine, broke the scaffolding, and 
 that in consequence of the scaffolding being so broken a corf in 
 which the deceased was descending the mine struck against a beam 
 on which the scaffolding had been supported, and by such striking 
 the corf was overturned, and the deceased precipitated into the 
 mine and killed. Tindal, C. J., said: 'If death ensues as the con- 
 ;ence of a wrongful act, which the party who commits it can 
 neither justify nor excuse, it is not accidental death, but manslaughter. 
 If the wrongful act was done under circumstances which show an 
 intent to kill or do any serious injury in the particular case or any 
 general malice, the often e becomes that of murder. In the present 
 mce the act was one of mere wantonness and sport; but still
 
 Sec. 3) CONSTRUCTIVE INTBNT. 87 
 
 the act was wrongful. It was a trespass. The only question, there- 
 fore, is whether the death of the party is to be fairly and reasonably 
 considered as a consequence of such wrongful act. If it followed 
 from such wrongful act, as an effect from a cause, the offense is 
 manslaughter; if it is altogether unconnected with it, it is accidental 
 death.' " 
 
 Field, J. This is a question of great importance; for, if I must 
 follow the ruling of the very learned judge in Rex v. Fenton, ubi 
 supra, it will be unnecessary to go into the question whether the 
 prisoner was guilty of negligence. I will consult my Brother 
 Mathew upon the point. 
 
 Field, J., after a short interval, returned into court and said: I 
 am of opinion that the case must go to the jury upon the broad ground 
 of negligence, and not upon the narrow ground proposed by the 
 learned counsel, because it seems to me — and I may say that ^ in 
 this view my Brother Mathew agrees — that the mere fact of a civil 
 wrong committed by one person against another ought not to be 
 used as an incident which is a necessary step in a criminal case. I 
 have a great abhorrence of constructive crime. We do not think the 
 case cited by the counsel for the prosecution is binding upon us 
 in the facts of this case, and therefore the civil wrong against the 
 refreshment-stall keeper is immaterial to this charge of manslaughter. 
 I do not think that the facts of this case bring it clearly within the 
 principle laid down by Tindal, C. J., in Rex v. Fenton. If I thought 
 this case was in principle like that case, I would, if requested, state 
 a case for the opinion of the Court of Criminal Appeal. But I do 
 not think so. 
 
 It was not disputed that the prisoner threw the box over the pier, 
 that the box fell upon the boy, and the death of the boy was caused 
 by the box falling upon him. 
 
 Gill, for the prisoner, relied upon the point that there was not 
 proved such negligence as was criminal negligence on the part of 
 the prisoner. 
 
 Field, J., in summing up the case to the jury, went carefully through 
 the evidence, pointing out how the facts as admitted and proved af- 
 fected the prisoner upon the legal question as he had explained to 
 them. 
 
 The jury returned a verdict of guilty of manslaughter. 
 
 The prisoner was sentenced to two months' imprisonment
 
 rgjh*/^ U4>,"/b >'l 
 
 88 THE CRIMINAL INTENT. (Ch. 3 
 
 -COMMONWEALTH v. ADAMS. 
 (Supreme Judicial Court of Massachusetts, 1873. 114 Mass. 323.) 
 
 Complaint for assault and battery. 
 
 At the trial in the superior court, before Bacon, J., it appeared 
 that the defendant was driving in a sleigh down Beacon street, and 
 was approaching the intersection of Charles street, when a team oc- 
 cupied the crossing. The defendant endeavored to pass the team while 
 driving at a rate prohibited by an ordinance of the city of Boston. 
 In so doing he ran against and knocked down a boy who was crossing 
 Beacon street. No special intent on the part of the defendant to 
 injure the boy was shown. The defendant had pleaded guilty to a 
 complaint for fast driving, in violation of the city ordinance. The 
 commonwealth asked for a verdict, upon the ground that the intent 
 to violate the city ordinance supplied the intent necessary to sustain 
 the charge of assault and battery. The court so ruled, and thereupon 
 the defendant submitted to a verdict of guilty, and the judge A _at 
 the defendant's request, reported the case for the determination of 
 this court. 
 
 Endicott, J. We are of opinion that the ruling in this case cannot 
 be sustained. It is true that one in the pursuit of an unlawful act 
 may sometimes be punished for another act done without design and 
 by mistake, if the act done was one for which he could have been 
 /jjpunished if done willfully. But the act, to be unlawful in this sense, 
 must be an act bad in itself, and done with an evil intent; and the 
 law has always made this distinction: That if the act the party was 
 doing was merely malum prohibitum, he shall not be punishable for 
 the act arising from misfortune or mistake; but if malum in se, it 
 is otherwise. 1 Hale, P. C. 39; Foster, C. L. 259. Acts mala in se 
 include, in addition to felonies, all breaches of public order, injuries 
 to person or property, outrages upon public decency or good morals, 
 and breaches of official duty, when done willfully or corruptly. Acts 
 mala prohibita include any matter forbidden or commanded by stat- 
 ute, but not otherwise wrong. 3 Grcenl. Ev. § 1. It is within the 
 last class that the city_or dinance of Bo ston falls, prohibiting driving 
 more than six nuTcs an hour in the streets. 
 
 Besides, to prove the violation of such an ordinance, it is not nec- 
 essary to show that it was done willfully or corruptly. The ordinance 
 declares a certain thing to be illegal. It therefore becomes illegal 
 to do it, without a wrong motive charged or necessary to be prov- 
 ed; and the court is bound to administer the penalty, although there 
 is an entire want of d< ign. Rex v. Sainsbury, 4 T. R. 461, 157. Jt 
 was held in Commonwealth v. W< r, 3 Pick. (Mass.) 462, thai 
 
 proof only of the fact thai the party was driving faster than the or- 
 dinance allowed was sufficienl for conviction. See Commonw e; all 1) 
 v. l-'arren, 9 Allen (Mass.) 489; Commonwealth v. Waite, 11 .Mien
 
 Sec. 3) CONSTRUCTIVE INTENT. 89 
 
 (Mass.) 264, 87 Am. Dec. 711. It is therefore immaterial whether 
 a party violates the ordinance willfully or not. The offense con- 
 sists, not in the intent with which the act is done, but in doing the 
 act prohibited, but not otherwise wrong. It is obvious, therefore, 
 that the violation of the ordinance does not in itself supply the intent 
 to^do another act which requires a. criminal intent to be proved. The 
 learned judge erred in ruling that the intent to violate the ordinance 
 in itself supplied the intent to sustain the charge of assault and 
 battery. The verdict must therefore be set aside, and a new trial 
 granted.* 
 
 REGINA v. LATIMER. 
 
 (Court for Crown Cases Reserved, 1886. 16 Cox, C. C. 70.) 
 
 Case stated by the learned Recorder for the borough of Devon- 
 port as follows : 
 
 The prisoner was tried at the April Quarter Sessions for the bor- 
 ough of Devonport on the 10th day of April, 1886. 
 
 The prisoner was indicted for unlawfully and maliciously wound- 
 ing Ellen Rolston. There was a second count charging him with a 
 common assault. 
 
 The evidence showed that the prosecutrix, Ellen Rolston, kept a 
 public house in Devonport; that on Sunday, the 14th day of Feb- 
 ruary, 1886, the prisoner, who was a soldier, and a man named 
 Horace Chappie, were in the public house, and a quarrel took place, 
 and eventually the prisoner was knocked down by the man, Horace 
 Chappie. The prisoner subsequently went out into a yard at the 
 back of the house. In about five minutes the prisoner came back 
 hastily through the room in which Chappie was still sitting, having 
 in his hand his belt which he had taken off. As the prisoner passed 
 he aimed a blow with his belt at the said Horace Chappie, and struck 
 him slightly. The belt bounded off and struck the prosecutrix, who 
 was standing talking to the said Horace Chappie, in the face, cutting 
 her face open and wounding her severely. 
 
 At the close of the case the learned Recorder left these questions 
 to the jury: (1) Was the blow struck at Chappie in self-defense to 
 get through the room, or unlawfully and maliciously? (2) Did the 
 blow so struck in fact wound Ellen Rolston? (3) Was the striking 
 of Ellen Rolston purely accidental, or was it such a consequence as 
 the prisoner should have expected to follow from the blow he aimed 
 at Chappie? 
 
 The jury found: (1) That the blow was unlawful and malicious. 
 (2) That the blow did in fact wound Ellen Rolston. (3) That the 
 
 i See. for a learned and exhaustive opinion in accord, the opinion of Hoke. 
 J., in State v. Horton. 139 N. C. 588, 51 S. E. 945, 1 L. R. A. (N. S.) 991, 111 
 Am. St. Rep. S18 (1905)." 
 
 V^
 
 90 THE CRIMINAL INTENT. (Ch. 3 
 
 striking of Ellen Rolston was purely accidental, and not such a con- 
 sequence of the blow as the prisoner ought to have expected. 
 
 Upon these findings the learned Recorder directed a verdict of 
 guilty to be entered to the first count, but respited judgment, and 
 admitted the prisoner to bail, to come up for judgment at the next 
 sessions. 
 
 The question for the consideration of the court was wheihejujp- 
 on the facts and the findings of the jury, the prisoner was rightly 
 convicted of the offense for which he was indicted. 
 
 By St. 24 & 25 Vict. c. 100, § 20, it is enacted that : 
 
 "Whosoever shall unlawfully and maliciously wound or inflict any 
 grievous bodily harm upon any other person, either with or without 
 any weapon or instrument, shall be guilty of misdemeanor." 
 
 Croft, for the prisoner. The findings of the jury amount to a 
 verdict of not guilty, for, though they found that the blow was 
 unlawful and malicious, and did in fact wound the prosecutrix, they 
 negatived those findings by the finding that the blow was accidental. 
 In Reg. v. Pembliton, 12 Cox, C. C. 607, 30 L. T. Rep. (N. S.) 405, 
 L. R. 2 Cr. Cas. Res. 119, it was held that a jury, by finding that a 
 stone had been thrown by the prisoner, intending to strike a person 
 with whom he had been fighting, and not intending to break a window 
 as he had done, had negatived the existence of malice, either actual 
 or constructive, and a conviction for malicious injury to property 
 was upon that ground quashed. [Manisty, J. Suppose here the 
 prisoner had killed Ellen Rolston, would not he have been guilty of 
 manslaughter?] Yes; but in this case the indictment is under a stat- 
 ute which requires that the blow should have been given maliciously, 
 and intention to wound the particular person is therefore necessary. 
 [Lord Esher. The indictment does not charge any specific intent. 
 It charges that he did it unlawfully. He was doing a criminal and 
 unlawful act, which resulted in a wounding of Ellen Rolston. Was 
 not that an unlawful wounding?] No; in the case cited the words 
 in the statute were the same, and it was held not to be an unlawful 
 injury. [Field, J. There the indictment was that the prisoner un- 
 lawfully and maliciously injured the window of A., and the jury 
 found that he intended to wound B., and no doubt the court would 
 hold that the evidence did not support the indictment.] In Reg. v. 
 Faulkner, 13 Cox, C. C. 550, a sailor entered a part of a vessel for 
 the purpose of stealing rum, and accidentally fired the vessel, but 
 he was nevertheless held not guilty of arson. [Manisty, J. In that 
 case there was no evidence at all of malice.] I submit that the un- 
 lawfulness of the act was sufficient evidence of malice there. In 
 McPherson v. Daniels, 10 B. & C. 203, 2 M. & R. 251, "maliciously" 
 has been defined as the doing a wrongful act willfully. [Lord CoLE- 
 ridge, C. J. Is not this i overned by the decision in Reg. v. 
 
 Hunt, 1 Moo. C. C. 93?) No; for that case is inconsistent with 
 the later ca < of Reg. v. Hewlett, t I'. & F. 01, where it was held
 
 Sec. 3) CONSTRUCTIVE INTENT. 91 
 
 that where a person strikes A., and B., interposing, receives the blow, 
 a conviction for wounding B. with intent to do grievous bodily harm 
 cannot be sustained. I submit that this case is governed by the de- 
 cision in Reg. v. Pembliton, and that, the jury having negatived the 
 existence of malice, the prisoner is entitled to an acquittal. 
 
 Helpman, for the prosecution, was not called upon. 
 
 Lord Coleridge, C. J. I am of opinion that this^conviction must 
 be sustained. In the first place, it is common knowledge that if a per- 
 son has a malicious intent towards one person, and in carrying into 
 effect that malicious intent he injures another man, he is guilty of 
 what the law considers malice against the person so injured, because 
 he is guilty of general malice, and is guilty if the result of his un- 
 lawful act be to injure a particular person. That would be the law 
 if the case were res integra; but it is not res integra, because in 
 Reg. v. Hunt a man, in attempting to injure A., stabbed the wrong 
 man. There, in point of fact, he had no more intention of injuring 
 B. than a man has an intent to injure a particular person who fires 
 down a street where a number of persons are collected, and injures a 
 person he never heard of before. But he had an intent to do. an un- 
 lawful act, and in carrying out that intent h e riH injure a person ; 
 and the law says that, un d^r_sujcji^rcumstancjs^_^jiian is guilty__of_ 
 maliciously wounding the person actually wounded. That would be 
 the ordinary state of the law if it had not been for the case of Reg. 
 v. Pembliton. But I observe that, in such an indictment, as in that 
 case, the words of the statute carry the case against the prisoner 
 more clearly still, because, by St. 24 & 25 Vict. c. 100, § 18, it is 
 enacted that "whosoever shall unlawfully and maliciously by any 
 means whatsoever wound * * * any person * * * with intent 
 * * * to maim, disfigure, or disable any person * * * shall be 
 guilty of felony"; and then section 20 enacts that "whosoever shall 
 unlawfully and maliciously wound * * * any other person shall 
 be guilty of a misdemeanor," and be liable to~~certain punishments. 
 Therefore the language of the eighteenth and twentieth sections are 
 perfectly different; and it must be remembered that this is a convic- 
 tion for an offense under the twentieth section. Now, the Master 
 of the Rolls has pointed out that these very sections are in substitu- 
 tion for and correction of the earlier statute (St. 9 Geo. IV, c. 31), 
 where it was necessary that the act should have been done with intent 
 to maim, disfigure, or disable such person, showing that the intent 
 must have been to injure the person actually injured. Those words 
 are left out in the later statute, and the words are "wound any other 
 person." I cannot see that there could be any question, but for the 
 case of Reg. v. Pembliton. Now, I think that that case was properly 
 decided, but upon a ground which renders it clearly distinguishable 
 from the present case ; that is to say, the statute which was under 
 discussion in Reg. v. Pembliton makes an unlawful injury to prop- 
 erty punishable in a certain way. In that case the jury and the facts
 
 92 THE CRIMINAL INTENT. (Ch. 3 
 
 expressly negatived that there was any intent to injure any property 
 at all ; and the court held that, in a statute which created it an offense 
 to injure property, there must be an intention to injure property in 
 order to support an indictment under that statute. But for that 
 case Mr. Croft is out of court, and I therefore think that this con- 
 viction should be sustained. 1 
 
 SECTION 4.— SPECIFIC INTENT. 
 
 REX v. DUFFIN. 
 (Court for Crown Cases Reserved, 1S18. Russ. & R. 3G5.) 
 
 The prisoners were tried before Mr. Baron Wood, at the Surrey 
 spring assizes, in the year 1818, on an indictment containing three 
 counts. 
 
 The first count charged the prisoner with willfully, maliciously, and 
 unlawfully assaulting John Sharp, and with a sharp instrument cut- 
 ting him upon his forehead with intent to murder him, contrary to 
 the form of the statute. The second count charged the intent to 
 be to disable the said John Sharp; and the third count charged the 
 intent to be to do the said John Sharp some grievous bodily harm. 
 
 The facts proved were that the prisoners went by night into the 
 burial ground of Lambeth Church with intent to dig up graves and 
 to take dead bodies. They went to the bonehouse, broke open the 
 door, and took out two shovels. The prisoner, Marshall, then began 
 digging up a grave, and had dug down to a coffin, during which time 
 Duffin was standing at the end of the grave. The sexton, who with 
 his son and another person, of the name of John Sharp, as his assist- 
 ant, had been concealed in the churchyard with arms to watch the 
 prisoners, whom they knew, came forward to the head of the grave, 
 and said: "You scoundrels, don't you want some assistance there?" 
 The prisoner Duffin said : "We are took to." Marshall got out of 
 the grave and struck at the sexton with the shovel, but missed him. 
 The sexton then said: "Will, don't you know me?" The prisoner 
 Marshal] said: "I know nobody." The sexton replied: "Surrender, 
 or I'll shoot you." Marshall then struck a second blow, which the 
 sexton parried off with his fowling piece. The sexton then struck 
 Marshal] with his fowling piece; and Marshall was again attempting 
 to strike, but the sexton called out for assistance. The sexton's son 
 came up, and find a pistol over Marshall's head. Marshall then sur- 
 rendered. Whilst Marshall was struggling with the sexton, Sharp, 
 
 i Concurring opinion of Baher, M. R., Bowen, L. J., and Field and Manisty, 
 jj., are omitted
 
 Sec. 4) SPECIFIC INTENT. 93 
 
 who was very near him, and who had not spoken, but had gone with 
 the sexton for the purpose of apprehending anybody they should find 
 disturbing the graves, received a blow from a sabre, which fell on 
 his forehead. This cut was not very deep, nor in any wise danger- 
 ous, but bled very much. The blow from the saber was given by the 
 prisoner Duffin, who attempted to strike Sharp a second time, but 
 was knocked down by Sharp, and secured. 
 
 Curwood, for the prisoners, contended that what the prisoners had 
 done was solely with a view to obstruct, resist, or prevent their own 
 apprehension, and, as the statute had expressly provided for that case, 
 the indictment ought to have been framed accordingly. He also con- 
 tended that the statute applied only to cases of lawful apprehension ; 
 and here there was no lawful ground to warrant the apprehension of 
 the prisoners, as the taking of dead bodies was not a felony, nor a 
 breach of the peace, but merely a trespass. 
 
 Heath, for the Crown, contended that there was an intention on 
 the part of the prisoners to do some grievous bodily harm to the pros- 
 ecutor, independent of any resistance to their own apprehension. 
 
 The learned judge left that point to the jury, who found that the 
 acts done by the prisoners were done with intent to obstruct, resist, 
 and prevent their apprehension, and for no other purpose. The ques- 
 tion of law the learned judge reserved for the opinion of the judges. 
 
 In Easter term, 1818, the judges met, and considered this case, 
 and held the conviction wrong. The judges were of opinion that 
 this case could not be within St. 43 Geo. Ill, c. 58, unless the appre- 
 hension of the prisoners would have been lawful, and if the cutting, 
 etc., was to prevent a lawful apprehension, it should have been so 
 stated, that being one of the intents mentioned in the act. The in- 
 tent laid in the indictment had been expressly negatived by the jury, 
 and therefore the conviction could not be supported. 1 
 
 REX v. HOLT. 
 
 (Shrewsbury Assizes, 1836. 7 Car. & P. 518.) 
 
 Shooting. The first count of the indictment against the prisoner 
 was for feloniously, maliciously, and unlawfully shooting "at one 
 John Hill," on the 23d of March, at Drayton in Hales, with intent 
 to murder "the said John Hill" ; second count, for the like, with in- 
 tent to maim him ; third, with intent to disfigure him ; fourth, with 
 intent to disable him ; fifth, with the intent to do him some grievous 
 bodily harm. The sixth, seventh, eighth, ninth, and tenth counts 
 charged the shooting to have been "at the Rev. James Lee," with in- 
 
 i See, also, Ogletree v. State, 28 Ala. 693 (1856) ; Roberts v. People. 19 Mich. 
 401 (1870) ; U. S. v. Buzzo, 18 Wall. (U. S.) 125, 21 L. Ed. 812 (1873). Cf. 
 Rex v. Williams, 1 Moo. 107 (1S25).
 
 94 THE CRIMINAL INTENT. (Ch. 3 
 
 tent to murder "the said Rev. James Lee," and with intent to maim 
 him, etc., as in the former counts. 1 
 
 LittlEdale, J. (in summing up). If this had been a case of mur- 
 der, and the prisoner, intending to murder one person, had by mis- 
 take murdered another, he would be equally liable to be found guilty. 
 jThe question, however, may be different on the construction of this 
 ; act of Parliament. There is no doubt that the prisoner shot at Mr. 
 Hill, and that, if death had ensued, the offense would have amounted 
 to murder ; and then it will be for you to say whether the prisoner in- 
 tended to do Mr. Hill some grievous bodily harm. It certainly ap- 
 pears that he did not so intend in point of fact. However, the law in- 
 fers that a party intends to do that which is the immediate and necessa- 
 ry effect of the act which he commits. 
 
 The Foreman of the Jury: We find him guilty of shooting at Mr. 
 Hill, with intent to do Mr. LeiTsome grievous bodily harm. 
 
 Littledale, J. There is no count for that. Do you find him guilty 
 of shooting at Mr. Lee? 
 
 The Foreman of the Jury: No, my Lord; he fired at Mr. Hill 
 intending to fire at Mr. Lee. 
 
 LittlEdale, J. Do you find that he intended to do harm to Mr. 
 Hill? 
 
 The Foreman of the Jury: We find that he did not intend to do 
 any harm to Mr. Hill. 
 
 Littledale, J. A verdict of not guilty must be recorded. 
 
 Verdict — Not guilty. 2 
 
 REGINA v. DODDRIDGE. 
 (Devon Assizes, 18G0- 8 Cox, C. C. 335.) 
 
 Prisoners were indicted for night poaching, and for assaulting the 
 keepers. 
 
 Karslake & Young, for the prosecution. 
 
 Carter, for the prisoners. 
 
 It was proved that prisoners were seen by the keepers on the land 
 of the prosecutor, at midnight, armed with guns, near a preserve of 
 pheasants, and shots were heard. On seeing the keepers the prison- 
 ers made off through a plantation into an adjoining highway, where 
 they sat down under a tree. The keepers then came up to them, when 
 the prisoners assaulted and severely wounded them. 
 
 In answer to a question by the learned judge, the keepers said 
 that they had not followed the prisoners into the highway with an 
 intention to arrest them. 
 
 ) Part of this case is omitted. 
 Accord: Reg. v. Ryan, 2 Moo. & R. 218 (1880). Cf. Reg. v. Btopford, 11 
 Cox, C. C. 843 (1870); Scotl \. State, 40 Ark. 156, 4 8. W. 750 (1886).
 
 Sec. 4) SPECIFIC INTENT. 95 
 
 Channell, B. This will not sustain the charge of assaulting. The 
 assault must be committed at the time when the keepers are attempt- 
 ing to arrest the prisoners. Here they distinctly swear that they 
 had no intention to arrest the prisoners when they came up to them 
 in the public road. These counts cannot be sustained. 
 
 On the trial of another indictment against the same prisoners, be- 
 fore Martin, B., for wounding with intent, etc. 
 
 Karslake contended that evidence of a common intent to poach 
 would sustain the charge of a joint unlawful wounding, so as to make 
 the act of some of them the act of all. 
 
 Carter, contra. 
 
 Martin, B. I quite agree with my Brother Channell that proof 
 of a common intent to poach is no evidence whatever of a common 
 intent to wound. 
 
 The jury acquitted the prisoners. 
 
 REGINA v. PEMBLITON. 
 
 (Court of Criminal Appeal, 1874. 12 Cox, C. C. 607.) 
 
 Lord Coleridge, C. J. 1 I am of opinion that this conviction must 
 be quashed. The facts of the case are these: The prisoner and 
 some other persons who had been drinking in a public house were 
 turned out of it at about 11 p. m. for being disorderly, and they then 
 began to fight in the street near the prosecutor's window. The pris- 
 oner separated himself from the others, and went to the other side 
 of the street, and picked up a stone, and threw it at the persons he 
 had been fighting with. The stone passed over their heads, and broke 
 a large plate glass window in the prosecutor's house, doing damage 
 to an amount exceeding £5. The jury found that the prisoner threw 
 the stone at the people he had been fighting with, intending to strike 
 one or more of them with it, but not intending to break the window. 
 The question is whether, under an indictment for unlawfully and ma- 
 liciously committing an injury to the window in the house of the pros- 
 ecutor, the proof of these facts alone, coupled with the finding of the 
 jury, will do? Now I think that is not enough. The indictment is 
 framed under St. 24 & 25 Vict. c. 97, § 51. The act is an act relating 
 to malicious injuries to property, and section 51 enacts that whoso- 
 ever shall unlawfully and maliciously commit any damage, etc., to or 
 upon any real or personal property whatsoever of a public or a pri- 
 vate nature, for which no punishment is hereinbefore provided, to an 
 amount exceeding £5, shall be guilty of a misdemeanor. There is also 
 the fifty-eighth section, which deserves attention: "Every punish- 
 ment and forfeiture by this act imposed on any person maliciously 
 
 i The opinion only is printed.
 
 96 THE CRIMINAL INTENT. (Ch. 3 
 
 committing any offense, whether the same be punishable upon indict- 
 ment or upon summary conviction, shall equally apply and be en- 
 forced, whether the offense shall be committed from malice conceived 
 against the owner of the property in respect of which it shall be com- 
 mitted, or otherwise." It seems to me, on both these sections, that 
 what was intended to be provided against by the act is the willfully 
 doing an unlawful act, and that the act must be willfully and inten- 
 tionally done on the part of the person doing it to render him liable 
 to be convicted. Without saying that, upon these facts, if the jury 
 had found that the prisoner had been guilty of throwing the stone 
 recklessly, knowing that there was a window near which it might 
 probably hit, I should have been disposed to interfere with the convic- 
 tion, yet as they have found that he threw the stone at the people he 
 had been fighting with, intending to strike them, and not intending 
 to break the window, I think the conviction must be quashed. I do 
 not intend to throw any doubt on the cases which have been cited, and 
 which show what is sufficient to constitute malice in the case of mur- 
 der. They rest upon the principles of the common law, and have no 
 application to a statutory offense created by an act in which the words 
 are carefully studied. 
 
 Blackburn, J. I am of the same opinion, and I quite agree that 
 it is not necessary to consider what constitutes willful malice afore- 
 thought to bring a case within the common-law crime of murder, 
 when we are construing this statute, which says that whosoever shall 
 unlawfully and maliciously commit any damage to or upon any real 
 or personal property to an amount exceeding £5 shall be guilty of a 
 misdemeanor. A person may be said to act maliciously when he will- 
 fully does an unlawful act without lawful excuse. The question here 
 is, can the prisoner be said, when he not only threw the stone unlaw- 
 fully, but broke the window unintentionally, to have unlawfully and 
 maliciously broken the window? I think that there was evidence on 
 which the jury might have found that he unlawfully and maliciously 
 broke the window, if they had found that the prisoner was aware that 
 the natural and probable consequence of his throwing the stone was 
 that it might break the glass window, on the principle that a man 
 must be taken to intend what is the natural and probable consequence 
 of his acts. But the jury have not found that the prisoner threw 
 the stone, knowing that, on the other side of the men he was throw- 
 ing at, there was a glass window, and that he was reckless as to 
 whether he did or did not break the window. On the contrary, they 
 have found that he did not intend to break the window. I think, there- 
 fore, that the conviction must be quashed. 
 
 Pigott, B. I am of the same opinion. 
 
 LUSH. J. 1 also think' that on this finding of the jury we have no 
 alternative but to hold that the conviction must he quashed. The 
 rd "malicious! ins an ad done cither actually or constructive- 
 
 ly with a malicious intention. The jury might have found that he
 
 £, JirtH fa-Ax -^r<a^5 'f^rt^: o^cf~ 
 
 
 3 
 
 5-' ■ v^ 
 
 Mik.Cr.L.— 7
 
 r" 
 
 Sec. 5) INTENT IN STATUTORY CRIMES. 97 
 
 did intend actually to break the window or constructively to do so, as 
 that he knew that the stone might probably break it when he threw it. 
 But they have not so found. 
 
 Cleasby, B., concurred. 
 
 Conviction quashed. 
 
 SECTION 5.— INTENT IN STATUTORY CRIMES. 
 
 REGINA v. PRINCE. ' | ^T 
 
 (Court for Crown Cases Reserved, 1875. 13 Cox, C. C. 138.) 
 
 Case reserved for the opinion of the Court for the Consideration 
 of Crown Cases Reserved by Denman, J. 
 
 At the Assizes for Surrey, held at Kingston-on-Thames on the 24th 
 March last, Henry Prince was tried before me upon the charge of 
 having unlawfuly taken one Annie Phillips, an unmarried girl, be- 
 ing under the age of 16 years, out of the possession and against the 
 will of her father. The indictment was framed under St. 24 & 25 
 Vict. c. 100, § 55. 
 
 He was found guilty, but judgment was respited in order that the 
 opinion of the Court for Crown Cases Reserved might be taken upon 
 the following case: 
 
 All the facts necessary to support a conviction existed, and were 
 found by the jury to have existed, unless the following facts consti- 
 tute a defense: The girl, Annie Phillips, though proved by her fa- 
 ther to be 14 years old on the €th April following, looked very much 
 older than 16; and the jury found upon reasonable evidence that be- 
 fore the defendant took her away she had told him that she was 
 18, and that the defendant bona fide believed that statement, and that 
 such belief was reasonable. 
 
 If the court is of opinion that under these circumstances a convic- 
 tion was right, the defendant is to appear for judgment at the next 
 Assizes for Surrey ; otherwise the conviction is to be quashed. See 
 R. v. Robins. 1 C. & K. 456 ; R. v. Olifier, 10 Cox, C. C. 402. 
 
 No counsel was instructed to argue on behalf of the prisoner. 
 
 The case came on in the court below on 24th April, and was di- 
 rected to be argued before all the 'judges. 1 
 
 Bramwell, B., delivered the following judgment, to which the 
 Lord Chief Baron Kelly, Cleasby, B., Grove, J., Pollock, B., and 
 Amphlett, B., assented: 
 
 The question in the case depends on the construction of the statute 
 
 i Argument of counsel, concurring opinions of Blackburn. J., assented to 
 by Cockburn, C. .7.. and Mellor, Lush, Quain, Archibald. Field, and Lindley, 
 JJ., and of Denman, J., and dissenting opinion of Brett, J., are omitted. 
 Mik.Cu.L.— 7
 
 98 THE CRIMINAL INTENT. (Ch. 3 
 
 under which the prisoner is indicted. That enacts that "whosoever 
 shall unlawfully take any unmarried girl under the age of sixteen out 
 of the possession and against the will of her father, or mother, or any 
 other person having the lawful care or charge of her, shall be guilty 
 of a misdemeanor." Now the word "unlawfully" means "not law- 
 fully," "otherwise than lawfully," "without lawful cause" — such as 
 would exist, for instance, on a taking by a police officer on a charge 
 of felony, or a taking by a father of his child from her school. The 
 statute, therefore, may be read thus: "Whosoever shall take, etc., 
 without lawful cause." Now the prisoner had no such cause, and con- 
 sequently, except in so far as it helps the construction of the statute, 
 the word "unlawfully" may, in the present case, be left out; and then 
 the question is, has the prisoner taken an unmarried girl under the age 
 of 16 out the possession of and against the will of her father? In fact 
 he has ; but it is said not within the meaning of the statute, and that 
 that must be read as though the word "knowingly" or some equiva- 
 lent word was in, and the reason given is that as a rule the mens rea 
 is necessary to make any act a crime or offense, and that if the facts 
 necessary to constitute an offense are not known to the alleged of- 
 fender there can be no mens rea. I have used the word "knowingly," 
 but it will perhaps be said that here the prisoner not only did not do 
 the act knowingly, but knew, as he would have said or believed, that 
 the fact was otherwise than such as would have made his act a crime; 
 that here the prisoner did not say to himself, "I do not know how the 
 fact is, whether she is under 16 or not, and will take the chance," but 
 acted on the reasonable belief that she was over 16 and that though, 
 if he had done what he did, knowing or believing neither way, but 
 hazarding it, there would be a mens rea, there is not one when he 
 believes he knows that she is over 16. It is impossible to suppose that 
 a person taking a girl out of her father's possession against his will 
 is guilty of no offense within the statute unless he, the taker, knows 
 she is under 16 — that he would not be guilty if the jury were of opin- 
 ion he knew neither one way nor the other. Let it be, then, that the 
 question is whether he is guilty where he knows, as he thinks, that she 
 is over 16. This introduces the necessity for reading the statute with 
 some strange words introduced, as thus: "Whosoever shall take any 
 unmarried girl, being under the age of 16, and not believing her to 
 be over the age of 16, out of the possession," etc. Those words are 
 not there, and llie question is whether we arc bound to construe the 
 lute as though they were, on account of the rule that the mens rea 
 is necessary to make an act a crime. I am of opinion that we are not, 
 nor as th the. SWJrd "knowingly" was there, and for the foHow- 
 
 ing reasons: The act forbidden is wrong in itself, if without lawful 
 cause I do not say illegal, but wrong. I have not lost sight of this: 
 that, though the statute probably principally aims at seduction for 
 carnal purposes, the ' may be by a female, with a good motive 
 
 Nevertheless, though there may be cases which are not immoral in
 
 Sec. 5) INTENT IN STATUTORY CRIMK8. 99 
 
 one sense, I say that the act forbidden is wrong. Let us remember 
 what is the case supposed by the statute. It supposes that there is a 
 girl. It does not say a woman, but a girl, something between a child 
 and a woman. It supposes she is in possession of her father, or moth- 
 er, or other person having lawful care and charge of her; and it sup- 
 poses there is a taking, and that that taking is against the will of the 
 person in whose possession she is. It is, then, a taking of a girl in the 
 possession of some one against his will. I say that done without law- 
 ful cause is wrong, and that the Legislature meant it should be at the 
 risk of the taker, whether or no she was under 16. I do not say that 
 taking of a woman of 50 from her brother's, or even father's, house is 
 wrong. She is at an age when she has a right to choose for herself. 
 , She is not a girl, nor of such tender age that she can be said to be in 
 the possession of or under the care or charge of any one. If I 
 am asked where I draw the line, I answer at when the female is no 
 longer a girl in any one's possession. But what the statute contem- 
 plates, and what I say is wrong, is the taking of a female of such ten- 
 der years that she is properly called a girl, and can be said to be in an- 
 other's possession, and in that other's care or charge. No argument is 
 necessary to prove this. It is enough to state the case. The Legis- 
 lature has enacted that, if any one dofs this wrong act, he does it at 
 the risk of her turning out to be under 16. This opinion gives full 
 scope to the doctrine of the mens rea. If the taker believed he had the 
 father's consent, though wrongly, he would have no mens rea. So if 
 he did not know she was in any one's possession, nor in the care or 
 charge of any one. In those cases he would not know he was doing 
 the act forbidden by the statute — an act which, if he knew she was in 
 possession and care or charge of any one, he would know was a crime 
 or not, according as she was under 16 or not. He would know he was 
 doing an act wrong itself, whatever was his intention, if done without 
 lawful cause. In addition to these considerations, one may add that 
 the statute does use the word "unlawfully," and does not use the 
 words "knowingly or not believing to the contrary." If the question 
 was whether his act was unlawful, there would be no difficulty, as it 
 clearly was not lawful. This view of the section, to my mind, is much 
 strengthened by a reference to other sections of the same statute. 
 Section 50 makes it a felony to unlawfully and carnally know a girl 
 under the age of 10. Section 51 enacts (when she is above 10 and un- 
 der 12) to unlawfully and carnally know her is a misdemeanor. Can 
 it be supposed, in the former case, a person indicted might claim to be 
 acquitted on the ground that he had believed the girl was over 10, 
 though under 12, and so that he had only committed a misdemeanor, 
 or that he believed her over 12, and so had committed no offense at all, 
 or that in a case under section 51 he could claim to be acquitted, be- 
 cause he believed her over 12? In both cases the act is intrinsically 
 wrong; for the statute says, if "unlawfully" done. The act done 
 with a mens rea is unlawfully and carnally knowing the girl, and the
 
 100 THE CRIMINAL INTENT. (Ch. 3 
 
 man doing that act does it at the risk of the child being under the stat- 
 utory age. It would be mischievous to hold otherwise. So section 56, 
 by which whoever shall take away any child under 14, with intent to 
 deprive parent or guardian of the possession of the child, or with in- 
 tent to steal any article upon such child, shall be guilty of felony. 
 Could a prisoner say, "I did take away the child to steal its clothes, 
 but I believed it to be over 14?" If not, then neither could he say, 
 "I did take the child with intent to deprive the parent of its possession, 
 but I believed it over 14." Because, if words to that effect cannot be 
 introduced into the statute where the intent is to steal the clothes, nei- 
 ther can they where the intent is to take the child out of the possession 
 of the parent. But if these words cannot be introduced in section 56, 
 why can they be in section 55? The same principle applies in these 
 cases. A man is held liable for assaulting a police officer in the execu- 
 tion of his duty, though he did not know he was a police officer. Reg. 
 v. Forbes, 10 Cox, C. C. 362. Why? Because the act was wrong in 
 itself. So, also, in the case of burglary; could a person charged claim 
 an acquittal on the ground that he believed it was past 6 a. m. when 
 he entered, or in housebreaking that he did not know the place broken 
 into was a house? As to the case of the marine stores, it was held 
 properly that there was no mens rea, where the persons charged with 
 the possession of naval stores with the admiralty mark did not know the 
 stores he had bore the mark (Reg. v. Sleep, 8 Cox, C. C. 472, 30 L. 
 J. 171, M. C), because there is nothing prima facie wrong or im- 
 moral in having naval stores unless they are so marked. But suppose 
 some one had told him there was a mark, and he had said he would 
 chance whether or no it was the admiralty mark. So, in the case of 
 the carrier with game in his possession, unless he knew he had it, there 
 would be nothing done or permitted by him, no intentional act or omis- 
 sion. So, of the vitriol sender, there was nothing wrong in sending 
 such packages as were sent, unless they contained vitriol. Take, also, 
 the case of libel, where the publisher thought the occasion privileged, 
 or that he had a defense under Lord Campbell's act, but was wrong. 
 I!,- would not be entitled to be acquitted, because there was no mens 
 i. Win? Because the act of publishing written defamation is 
 wrong where there is no lawful cause. Further, there have been four 
 d< on this statute in favor of the construction I contend for. I 
 
 say it is a qi n of construction of this particular statute, no doubt 
 
 bringing thereto the common-law doctrine of nuns rea being a neces- 
 sary ingredienl of crime. It seems to me impossible to say that where 
 a p, rson irl out of her father's possession, not 1 nowing wheth- 
 
 er ,1,,. i or r L6, he is not guilty, and equally impossible 
 
 when he believes, bul erroneously, that she is old enough for him to 
 do a wrong acl with af< ty. I think the conviction shoul 1 be affirmed. 9 
 
 ■ !C ord: State v. Ruhl, 8 Lowa, 447 (1859); Riley v. State (Miss.) 18 So. 
 117 USD.")); rarnallv knowing a femnle under 16 years. Commonwealth v 
 Murphy, 165 Mass. 60, 12 N. EC. 504, 80 I, R. A. 784, 52 Am. St. Rep. 496
 
 
 1 
 
 Sec. 5) INTENT IN STATUTORY CRIMES. 101 
 
 REGINA v. TOLSON. ' 
 
 (Court for Crown Cases Reserved, 1889. 23 Q. B. DIv. 1G8.) 
 
 Wills, J. I n this ca se_the__prisor)er was convicted of bigamy. She 
 married a second lime within seven years of the time when she last 
 knew of her husband being alive, but upon information of his death, 
 which the jury found that she upon reasonable grounds believed to be 
 true. A few months after the second marriage he reappeared. 
 The statute upon which the indictment is framed is St. 24 & 25 Vict. 
 c. 100, § 57, which is in these words : "Whoever, being married, shall 
 marry any other person during the life of the former husband or wife 
 shall be guilty of felony, punishable with penal servitude for not more 
 than seven years, or imprisonment with or without hard labor for not 
 more than two years" — with a proviso that "nothing in this act shall 
 extend to any person marrying a second time whose husband or wife 
 shall have been continually absent from such person for the space of 
 seven years last past, and shall not have been known by such person 
 to be living within that time." 
 
 There is no doubt that under the circumstances the prisoner falls 
 within the very words of the statute. She, being married, married an- 
 other person during the life of her former husband, and when she did 
 so he had not been continually absent from her for the space of seven 
 years last past. 
 
 It is, however, undoubtedly a principle of English criminal law 
 that, ordinarily speaking, a crime is not committed if the mind of the 
 person doing the act in question be innocent. "It is a principle of nat- 
 ural justice and of our law," says Lord Kenyon, C. J., "that 'actus 
 non facit reum, nisi mens sit rea.' The intent and act must both con- 
 cur to constitute the crime." Fowler v. Padgets, 7 T. R. 509, 514. 
 The guilty intent is not necessarily that of intending the very act or 
 thing done and prohibited by common or statute law, but it must at 
 least be the intention to do something wrong. That intention may be- 
 long to one or other of two classes. It may be to do a thing wrong 
 in itself and apart from positive law, or it may be to do a thing merely 
 "profilrjJT&d by statute or by common law, or both elements of intention 
 may coexist with respect to the same deed. There are many things 
 prohibited by no statute — fornication or seduction, for instance — which 
 nevertheless no one would hesitate to call wrong; and the intention 
 to do an act wrong in this sense at the least must as a general rule ex- 
 ist before the act done can be considered a crime. Knowingly and in- 
 tentionally to break a statute must, I think, from the judicial point of 
 view, always be moral ly wrong , in the absence of special circumstances 
 applicable to the particular" instance and excusing the breach of the 
 law, as, for instance, if a municipal regulation be broken to save life 
 or to put out a fire. But to make it morally right some such special 
 matter of excuse must exist, inasmuch as the administration of jus-
 
 102 THE CRIMINAL INTENT. (Ch. 3 
 
 tice, and, indeed, the foundations of civil society, rest upon the prin- 
 ciple that obedience to the law, whether it be a law approved of or 
 disapproved of by the individual, is the first duty of the citizen. 
 
 Although prima facie and as a general rule there must be a mind 
 at fault before there can be a crime, it is not an inflexible rule, and a 
 statute may relate to a subject-matter and may be so framed as to 
 make an act criminal whether there has_ been any in tenti on to break 
 the law or otherwise to do wrong or not. There is a large body of 
 municipal law in the present day which is so conceived. By-laws are 
 constantly made regulating the width of thoroughfares, the height of 
 buildings, the thicknesses of walls, and a variety of other matters nec- 
 essary for the general welfare, health, or convenience, and such by- 
 laws are enforced by the sanction of penalties, and the breach of them 
 constitutes an offense and is a criminal matter. In such cases it would, 
 generally speaking, be no answer to proceedings for infringement of 
 the by-law that the person committing it had bona fide made an acci- 
 dental miscalculation or an erroneous measurement. The acts are 
 properly construed as imposing the penalty when the act is done, no 
 matter how innocently, and in such a case the substance of the enact- 
 ment is that a man shall take care that the statutory direction is obey- 
 ed, and that if he fails to do so he does it at his peril. 
 
 Whether an enactment is to be construed in this sense, or with the 
 qualification ordinarily imported into the construction of criminal stat- 
 utes, that there must be a guilty mind, must, I think, depend upon the 
 subject mailer of the enactment and the various circumstances that 
 may make the one construction or the other r easonable or un reason- 
 ably. There is no difference, for instance, in the kind of language used 
 by acts of Parliament which made the unauthorized possession of gov- 
 ernment stores a crime, and the language used in by-laws which say 
 that, if a man builds a house or a wall so as to encroach upon a space 
 protected by the by-law from building, he shall be liable to a penalty. 
 Yet in Reg. v. Sleep, L. & C. 44, 30 L. 5, (M. C.) 170, it was held that 
 a person in possession of government stores with the broad arrow 
 could not be convicted when there was not sufficient evidence to show 
 that he knew they were so marked, whilst the mere infringement of a 
 building by-law would entail liability to the penalty. There is no dif- 
 ference between the language by which it is said that a man shall 
 sweep the snow from the pavement in front of his house before a given 
 hour in the morning, and if he fail to do so shall pay a penalty, and 
 that by which it is said that a man sending vitriol by railway shall 
 mark the nature of the goods on the package on pain of forfeiting 
 a sum of money; and yet I suppose that in the first case the penally 
 would attach if the thing were not done, whilst in the other case it 
 has been held in Hearne v. Garton. 2 I'.. & E. ,;,; . that where the sender 
 had made reasonable inquiry, and was tricked into the belief that the 
 goods were of an innocenl character, he could not be convicted, al- 
 though he had in fad sent the vitriol not properly marked. There is
 
 Sec. 5) INTENT IN STATUTORY CRIMES. 103 
 
 no difference between the language by which it is enacted that "who- 
 soever shall unlawfully and willfully kill any pigeon under such cir- 
 cumstances as shall not amount to a larceny at common law" shall 
 be liable to a penalty, and the language by which it is enacted that "if 
 any person shall commit any trespass by entering any land in the day- 
 time in pursuit of game" he shall be liable to a penalty ; and yet in the 
 first case it has been held that his state of mind is material (Taylor v. 
 Newman, 4 B. & S. 89) and in the second that it is immaterial (Wat- 
 kins v. Major, Law Rep. 10 C. P. 666). So, again, there is no differ- 
 ence in the language between the enactments I have referred to, in 
 which the absence of a guilty mind was held to be a defense, and that 
 of the statute which says that "any person who shall receive two or 
 more lunatics" into any unlicensed house shall be guilty of misdemean- 
 or, under which the contrary has been held (Reg. v. Bishop, Q. B. D. 
 259). A statute provided that any clerk to justices who should, under 
 color and pretense of anything done by the justice or the clerk, re- 
 ceive a fee greater than that provided for by a certain table, should 
 for every such offense forfeit £20. It was held that where a clerk to 
 justices bona fide and reasonably, but erroneously, believed that there 
 were two sureties bound in a recognizance besides the principal, and 
 accordingly took a fee as for three recognizances, when he was only 
 entitled to charge for two, no action would lie for the penalty. "Act- 
 us," says Lord Campbell, "non facit reum, nisi mens sit rea. Here the 
 defendant, very reasonably believing that there were two sureties 
 bound, beside the principal, has not, by making a charge in pursuance 
 of his belief, incurred the forfeiture. The language of the statute is 
 'for every such offense.' If, therefore, the table allowed him to charge 
 for three recognizances, where there are a principal and two sureties, 
 he has not committed an offense under the act." Bowman v. Blyth, 7 
 E. & B. 26, 43. i 
 
 If identical language may thus be legitimately construed in two op- 
 posite senses, and is sometimes held to imply that there is, and some- 
 times that there is not, an offense when the guilty mind is absent, it 
 is obvious that assistance must be sought aliunde, and that all circum- 
 stances must be taken into consideration which tend to show that thel 
 one construction or the other is reasonable, and amongst such circum-V x 
 stances it is impossible to discard the consequences. This is a consid-' 
 eration entitled to little weight if the words be incapable of more than 
 one construction; but I have, I think, abundantly shown that there is 
 nothing in the mere form of words used in the enactment now under 
 consideration to prevent the application of what is certainly the nor- 
 mal rule of construction in the case of a statute constituting an offense 
 entailing severe and degrading punishment. If the words are not con- 
 clusive in themselves, the reasonableness or otherwise of the construc- 
 tion contended for has always been recognized as a matter fairly to be 
 taken into account. In a case in which a woman was indicted under 
 St. 9 & 10 Wm. Ill, c. 41, § 2, for having in her possession without
 
 104 THE CRIMINAL INTENT. (Ch. 3 
 
 a certificate from the proper authority government stores marked in 
 the manner described in the act, it was argued that by the act the pos- 
 session of the certificate was made the sole excuse, and that as she had 
 no certificates she must be convicted. Foster, J., said, however, that 
 though the words of the statute seemed to exclude any other excuse, 
 yet the circumstances must be taken into consideration, otherwise a 
 law calculated for wise purposes might be made a handmaid to oppres- 
 sion, and directed the jury that, if they thought the defendant came 
 into possession of the stores without any fraud or misbehavior on 
 her part, they ought to acquit her. Fost. C. L. (3d Ed.) App. pp. 439, 
 440. This ruling was adopted by Lord Kenyon in Rex v. Banks, 1 
 Esp. 144, who considered it beyond question that the defendant might 
 excuse himself by showing that he came innocently into such posses- 
 sion, and treated the unqualified words of the statute as merely shift- 
 ing the burden of proof, and making it necessary for the defendant to 
 show matter of excuse, and to negative the guilty mind, instead of its 
 being necessary for the crown to show the existence of the guilty 
 mind. Prima facie the statute was satisfied when the case was brought 
 within its terms, and it then lay upon the defendant to prove that the 
 violation of the law which had taken place had been committed acci- 
 dentally or innocently so far as he was concerned. Suppose a man had 
 taken up by mistake one of two baskets exactly alike and of similar 
 weight, one of which contained innocent articles belonging to himself 
 and the other marked government stores, and was caught with the 
 wrong basket in his hand. He would by his own act have brought him- 
 self within the very words of the statute. Who would think of convict- 
 ing him ? And yet what defense could there be, except that his mind was 
 innocent, and that he had not intended to do the thing forbidden by the 
 statute? In Fowler v. Padget, 7 T. R. 509, the question was whether 
 it was an act of bankruptcy for a man to depart from his dwelling 
 house, whereby his creditors were defeated and delayed, although he 
 had no intention of defeating and delaying them. The statute which 
 constituted the act of bankruptcy was St. 1 Jac. I, c. 15, which makes 
 it an act of bankruptcy (amongst other things) for a man to depart 
 his dwelling house "to the intent or whereby his creditors may be de- 
 feated and delayed." The Court of King's Bench, consisting of Lord 
 Kenyon, C. J., and Ashurst and Grose, JJ., held that there was no 
 act of bankruptcy. "Bankruptcy," said Lord Kenyon, "is considered as 
 a crime, and the bankrupt in the old laws is called an offender; but," 
 he adds in the passage already cited, "it is a principle of natural jus- 
 tice and of our law that actus non facit renin, nisi mens sit rea," and 
 the court went so far as to read "and" in the statute, in place of "or," 
 which is the word used in the act, in order to avoid the consequences 
 which appeared to them unjust and unreasonable. In Rex v. Hanks, 
 i Esp. ill, above cited, Lord Kenyon referred to Foster, J.'s, ruling 
 in this case as that of "one of the best crown lawyers that ever sat in 
 Westminster Hall." The e decisions of Poster, J., and Lord Kenyon
 
 Sec. 5) INTENT IN STATUTORY CRIMES. 105 
 
 have been repeatedly acted upon. See Reg. v. Willmette, 3 Cox, C. C. 
 281; Reg. v. Cohen, 8 Cox, C. C. 41; Reg. v. Sleep (in the Court for 
 C. C. R.) L. & C. 44; Reg. v. O'Brien, 15 U T. (N. S.) 419. 
 
 Now in the present instance one consequence of holding that the 
 offense is complete if the husband or wife is de facto alive at the time 
 of the second marriage, although the defendant had at the time of the 
 second marriage every reason to believe the contrary, would be that, 
 though the evidence of death should be sufficient to induce the Court 
 of Probate to grant probate of the will or administration of the goods 
 of the man supposed to be dead, or to prevail with the jury upon an 
 action by the heir to recover possession of his real property, the wife 
 of the person supposed to be dead, who had married 6 years and 11 
 months after the last time that she had known him to be alive would be 
 guilty of felony in case he should turn up 20 years afterwards. It/ 
 would be scarcely less unreasonable to enact that those who had in the; 
 meantime distributed his personal estate should be guilty of larceny. ' 
 It seems to me to be a case to which it would not be improper to ap- 
 ply the language of Lord Kenyon, when dealing with a statute which, 
 literally interpreted, led to what he considered an equally preposter- 
 ous result: "I would adopt any construction of the statute that the 
 words will bear in order to avoid such monstrous consequences." 
 Fowler v. Padget, 7 T. R. 509. ^^^ 
 
 Again, the nature and extent of the penalty attached to the offense [> 
 may reasonably be considered. There is nothing that need shock any 
 mind in the payment of a small pecuniary penalty by a person who 
 has unwittingly done something detrimental to the public interest. 
 To subject him, when what he has done has been nothing but what 
 any well-disposed man would have been very likely to do under the 
 circumstances, to the forfeiture of all his goods and chattels, which 
 would have been one consequence of a conviction at the date of the 
 act of 24 & 25 Vict., to the loss of civil rights, to imprisonment with 
 hard labor, or even to penal servitude, is a very different matter; and 
 such a fate seems properly reserved for those who have transgressed 
 morally, as well as unintentionally done something prohibited by law. 
 I am well aware that the mischiefs which may result from bigamous 
 marriages, however innocently contracted, are great; but I cannot 
 think that the appropriate way of preventing them is to expose to the 
 danger of a cruel injustice persons whose only error may be that of act- 
 ing upon the same evidence as has appeared perfectly satisfactory to 
 a Court of Probate, a tribunal emphatically difficult to satisfy in such 
 matters, and certain only to act upon what appears to be the most 
 cogent evidence of death. It is, as it seems to me, undesirable in the 
 highest degree without necessity to multiply instances in which people 
 shall be liable to conviction upon very grave charges when the cir- 
 cumstances are such that no judge in the kingdom would think of pro- 
 nouncing more than a nominal sentence. 
 
 It is said, however, in respect to the offense now under discussion,
 
 106 THE CRIMINAL INTENT. (Ch. 3 
 
 that the proviso in St. 24 & 25 Vict. c. 100, § 57, that "nothing in the 
 section shall extend to any person marrying a second time whose hus- 
 band or wife shall have been continually absent from such person for 
 seven years last past, and shall not have been known by such person 
 to be living within that time," points out the sole excuse of which the 
 act allows. I cannot see what necessity there is for drawing any such 
 inference. It seems to me that it merely specifies one particular case, 
 and indicates what in that case shall be sufficient to exempt the party 
 without any further inquiry from criminal liability; and I think it 
 is an argument of considerable weight, in this connection, that under St. 
 9 & 10 Wm. Ill, c. 41, § 2, where a similar contention was founded up- 
 on the specification of one particular circumstance under which the 
 possession of government stores should be justified, successive judges 
 and courts have refused to accede to the reasoning, and have treated 
 it, to use the words of Lord Kenyon, as a matter that "could not bear 
 a question" that the defendant might show in other ways that'his pos- 
 session was without fraud or misbehavior on his part. Rex v. Banks. 
 
 Upon the point in question there are conflicting decisions. It was 
 held by Martin, B., in Reg. v. Turner, 9 Cox, C. C. 145, and by Cleas- 
 by, B., in Reg. v. Horton, 11 Cox, C. C. 670, that bona fide belief, at 
 the time of the second marriage, upon reasonable grounds, that the 
 first husband or wife was dead, was a defense. In Reg. v. Gibbons, 
 12 Cox, C. C. 237, it is said that it was held by Brett, J., after consult- 
 ing Willes, J., that such a belief was no defense. The report, however, 
 is most unsatisfactory, as, if the facts were as there stated, there was 
 no reasonable evidence of such belief upon any reasonable grounds, 
 and in Reg. v. Prince, L. R. 2 C. C. R. 154, Brett, J., gave a very elab- 
 orate judgment containing his matured and considered opinion upon 
 a similar question, which it is quite impossible to reconcile with the sup- 
 posed ruling in Reg. v. Gibbons. 
 
 In Reg. v. Bennett, 14 Cox, C. C. 45, Bramwell, L,. J., is reported 
 to have followed Reg. v. Gibbons, and to have said that he had always 
 refused to act upon Reg. v. Turner. But here again the report is emi- 
 nently unsatisfactory, for it proceeds to state that the prisoner was 
 convicted of two other offenses, forgery and obtaining money by false 
 pretenses, and sentenced to ten years' penal servitude, which is a great- 
 er sentence than he could have received for bigamy. Except for the 
 purpose of bringing out the sort of man that the prisoner was, and so 
 emphasizing the fact that he deserved condign punishment, the bigamy 
 trial might have been omitted. 
 
 In Reg. v. Moore, 13 Cox, C. C. 544, Denman, J., after consultation 
 with Amphlett, L. J., directed the acquittal of a woman charged with 
 bigamy, the jury having found that, although seven years had not 
 elapsed ^ince she last knew that her husband was living, she had, when 
 he married a id time, a reasonable and bona fide belief that he 
 
 was dead, saving that in his opinion and that of Amphlett, L. J., such
 
 Sec. 5) INTENT IN STATUTORY CRIMES. 107 
 
 . a belief was a defense. He added, however, that his opinion was not 
 
 v to be taken as a final one, and that, had the circumstances been such 
 
 that the prisoner would, if the conviction could be sustained, have de- 
 
 j served a substantial sentence, he should have directed a conviction, 
 
 > and reserved the question. 
 
 There is nothing, therefore, in the state of the authorities directly 
 bearing upon the question to prevent one from deciding it upon the 
 J grounds of principle. It is suggested, however, that the important 
 decision of the court of 15 judges in -Reg. v. Prince is an authority 
 in favor of a conviction in this case. I do not think so. In Reg. v. 
 Prince the prisoner was indicted under St. 24 & 25 Vict. c. 100, § 55, 
 for "unlawfully taking an unmarried girl, then being under the age of 
 sixteen years, out of the possession and against the will of her father." 
 The jury found that the prisoner bona fide believed upon reasonable 
 grounds that she was 18. The court (dissentiente Brett, J.) upheld 
 the conviction. Two judgments were delivered by a majority of the 
 court, in each of which several judges concurred, whilst three of them, 
 Denman, J., Pollock, B., and Quain, J., concurred in both. The first 
 of the two, being the judgment of nine judges, upheld the conviction 
 upon the ground that, looking to the subject-matter of the enactment, 
 to the group of sections amongst which it is found, and to the history 
 of legislation on the subject, the intention of the Legislature was that, 
 if a man took an unmarried girl under 16 out of the possession of her 
 father against his will, he must take his chance of whether any belief 
 he might have about her age was right or wrong, and if he made a 
 mistake upon this point so much the worse for him ; he must bear the 
 consequences. The second of the two judgments, being that of seven 
 judges, gives a number of other reasons for arriving at the same con- 
 clusion, some of them founded upon the policy of the Legislature as 
 illustrated by other associated sections of the same act. This judg- 
 ment contains an emphatic recognition of the doctrine of the "guilty 
 mind" as an element, in general, of a criminal act, and supports the 
 conviction upon the ground that the defendant, who believed the girl 
 to be 18 and not 16, even then, in taking her out of the possession of 
 the father against his will, was doing an act wrong in itself. "This 
 opinion," says the judgment, "gives full scope to the doctrine of the 
 mens rea." 
 
 The case of Reg. v. Prince, therefore, is a direct and cogent author- 
 . ity for saying that the intention of the Legislature cannot be decided 
 upon simple prohibitory words, without reference to other considera- 
 tions. The considerations relied upon* in that case are wanting in the 
 present case, whilst, as it seems to me, those which point to the ap- 
 plication of the principle underlying a vast area of criminal enactment, 
 that there can be no crime without a tainted mind, preponderate great- 
 ly over any that point to its exclusion. 
 
 In my opinion, therefore, this conviction ought to be quashed. My
 
 108 THE CRIMINAL INTENT. (Ch. 3- 
 
 Brother Charles authorizes me to say that this judgment expresses 
 his views as well as my own. 1 
 
 Manisty, J. I am of opinion that the conviction should be affirmed. 
 
 The question is whether, if a married woman marries another man 
 during the life of her former husband and within seven years of his 
 leaving her, she is guilty of felony; the jury having found as a fact 
 that she had reason to believe and did honestly believe that her former 
 husband was dead. 
 
 The fifty-seventh section of St. 24 & 25 Vict. c. 100, is as express 
 and as free from ambiguity as words can make it. The statute says : 
 "Whosoever being married shall marry any other person during the 
 life of the former husband or wife * * * shall be guilty of felony, 
 and being convicted, shall be liable, at the discretion of the court, to 
 be kept in penal servitude for any term not exceeding seven years, 
 and not less than three years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labor." The statute does 
 not even say, if the accused shall feloniously or unlawfully or knowing- 
 ly commit the act, he or she shall be guilty of felony; but the enact- 
 ment is couched in the clearest language that could be used to prohibit 
 the act and to make it a felony if the act is committed. 
 
 If any doubt could be entertained on the point, it seems to me the 
 proviso which follows the enactment ought to remove it. The proviso 
 is that "nothing in the fifty-seventh section of the act shall extend 
 to any person marrying a second time whose husband or wife shall 
 have been continually absent from such person for the space of seven 
 years then last past and shall not have been known by such person to 
 be living within that time." 
 
 Such being the plain language of the act, it is, in my opinion, the 
 imperative duty of the court to give effect to it, and to leave it to the 
 Legislature to alter the law if it thinks it ought to be altered. 
 
 Probably, if the law was altered, some provision would be made in fa- 
 vor of children of the second marriage. If the second marriage is to be 
 deemed to be legal for one purpose, surely it ought to be deemed legal 
 as to the children who are the offspring of it. If it be within the prov- 
 ince of the court to consider the reasons which induced the Legisla- 
 ture to pass the act as it is, it seems to me one principal reason is on 
 the surface, namely, the consequence of a married person marrying 
 again in the lifetime of his or her former wife or husban'd, in which 
 case it might, and in many cases would, be that several children of 
 the second marriage would be born, and all would be bastards. The 
 proviso is evidently founded upon the assumption that, after the lapse 
 of seven years and the former husband or wife not being heard of, 
 it may reasonably be inferred that he or she is dead, and thus the mis- 
 
 i Part of this opinion, and the concurring opinions of Cave, Stephen, and 
 11 .t.i., and Coleridge, <:. J. f and dissenting opinion of Denman, J., 
 
 are omlttfd.
 
 Sec. 5) INTENT IN STATUTORY CRIMES. 109 
 
 chief of a second marriage in the lifetime of the former husband or 
 wife is to a great extent, if not altogether, avoided. 
 
 It is to be borne in mind that bigamy never was a crime at common 
 law. It has been the subject of several acts of Parliament, and is now 
 governed by St. 21 & 25 Vict. c. 100, § 57. 
 
 No doubt, in construing a statute, the intention of the Legislature 
 is what the court has to ascertain ; but the intention must be collected 
 from the language used, and where that language is plain and explicit 
 and free from all ambiguity, as it is in the present case, I have always 
 understood that it is the imperative duty of judges to give effect to it. 
 
 The cases of insanity, etc., on which reliance is placed, stand on a 
 totally different principle, viz., that of an absence of mens. Igno- 
 rance of the law is no excuse for the violation of it, and, if a person 
 choose to run the risk of committing a felony, he or she must take the 
 consequences, if it turn out that a felony has been committed. 
 
 Great stress is laid by those who hold that the conviction should be 
 quashed upon the circumstance that the crime of bigamy is by the stat- 
 ute declared to be a felony, and punishable with penal servitude or im- 
 prisonment with or without hard labor for any term not exceeding 
 two years. If the crime had been declared to be a misdemeanor, pun- 
 ishable with fine or imprisonment, surely the construction of the statute 
 would have been, or ought to have been, the same. It may well be 
 that the Legislature declared it to be a felony to deter married per- 
 sons from running the risk of committing the crime of bigamy, and 
 in order that a severe punishment might be inflicted in cases where 
 there were no mitigating circumstances. No doubt circumstances may 
 and do affect the sentence, even to the extent of the punishment being 
 nominal, as it was in the present case ; but that is a very different 
 thing from disregarding and contravening the plain words of the act 
 of Parliament. 
 
 The case is put by some of my learned Brothers of a married man 
 leaving his wife and going into a foreign country, intending to settle 
 there, and, it may be, afterwards to send for his wife and children, 
 and the ship in which he goes is lost in a storm, with, as is supposed, 
 all on board, and after the lapse of say a year, and no tidings received 
 of any one having been saved, the underwriters pay the insurance on 
 the ship, and the supposed widow gets probate of her husband's will, 
 and marries, and has children, and after the lapse of several years the 
 husband appears, it may be a few days before seven years have expired, 
 and the question is asked, would it not be shocking that in such a case 
 the wife could be found guilty of bigamy? 
 
 My answer is that the act of Parliament says in clear and express 
 words, for very good reasons, as I have already pointed out, that she 
 is guilty of bigamy. The only shocking fact would be that some one 
 for some purpose of his own had instituted the prosecution. I need 
 not say that no public prosecutor would ever think of doing so, and the 
 judge before whom the case came on for trial would, as my Brother
 
 110 THE CRIMINAL INTENT. (Ch. 3 
 
 Stephen did in the present case, pass a nominal sentence of a day's im- 
 prisonment (which in effect is immediate discharge), accompanied, if 
 I were the judge, with a disallowance of the costs of the prosecution. 
 It may be said : But the woman is put to some trouble and expense 
 in appearing before the magistrate, who would, of course, take nominal 
 bail, and in appearing to take her trial. Be it so; but such a case 
 would be very rare indeed. On the other hand, see what a door would 
 be opened to collusion and mischief, if, in the vast number of cases 
 where men in humble life leave their wives and go abroad, it would 
 be a good defense for a woman to say, and give proof which the jury 
 believed, that she had been informed by some person upon whom she 
 honestly thought she had reason to rely, and did believe, that her hus- 
 band was dead, whereas in fact she had been imposed upon, and her 
 husband was alive. 
 
 "What operates strongly on my mind is this : that if the Legisla- 
 ture intended to prohibit a second marriage in the lifetime of a former 
 husband or wife, and to make it a crime, subject to the proviso as to 
 seven years, I do not believe that language more apt or precise could 
 be found to give effect to that intention than the language contained in 
 the fifty-seventh section of the act in question. In this view I am 
 fortified by several sections of the same act, where the words "unlaw- 
 fully" and "maliciously and unlawfully" are used (as in section 23), 
 and by a comparison of them with the section in question (section 57), 
 where no such words are to be found. I especially rely upon the fifty- 
 fifth section, by which it is enacted that "whosoever shall unlawfully" 
 (a word not used in section 57) "take or cause to be taken any unmar- 
 ried girl being under the age of sixteen years out of the possession of 
 her father or mother or any other person having the lawful care or 
 charge of her, shall be guilty of a misdemeanor." Fifteen out of 16 
 judges held in the case of Reg. v. Prince, Law Rep. 2 C. C. R. 154, 
 that, notwithstanding the use of the word "unlawfully," the fact of 
 >the prisoner believing and having reason to believe that the girl was 
 over 16 afforded no defense. This decision is approved of upon the 
 present occasion by 5 judges, making in all 20, against the 9 who are 
 in favor of quashing the conviction. To the 20 I may, I think, fairly 
 Id Tindal, C. J., in Reg. v. Robins, 1 C. & K. 456, and Willes, J., in 
 A Reg. v. Mycock, 12 Cox, C. C. 28. 
 
 I rely, also, very much upon the fifth section of the act passed in 
 i for the better protection of women and girls (St. 48 & 19 Vict, 
 c. 60), by which it was enacted that "any person who unlawfully and 
 carnally knows any girl above thirteen and under sixteen years shall 
 guilty of a misdemeanor." But to that is added a proviso that "it 
 shall be a sufficienl defense if it be made to appear to the court or 
 jury before whom the charge shall be brough.1 that the person charged 
 had reasonable cau e to believe and did believe that the girl was of or 
 above the a •'• of L6." It is to be observed that, notwithstanding the 
 word "unlawfully" appears in this section, it was considered necessary
 
 Sec. 5) INTENT IN STATUTORY CRIMES. Ill 
 
 to add the proviso, without which it would have been no defense that 
 the accused had reasonable cause to believe and did believe that the 
 girl was of or above the age of 16. Those who hold that the conviction 
 in the present case should be quashed really import into the fifty-sev- 
 enth section of St. 24 & 25 Vict. c. 100, the proviso which is in the 
 fifth section of St. 48 & 49 Vict. c. 69, contrary, as it seems to me, to 
 the decision in Reg. v. Prince, Law Rep. 2 C. C. R. 154, and to the 
 hitherto undisputed canons for construing a statute. 
 
 I think the conviction should be affirmed. My Brothers Denman, 
 Pollock, Field, and Huddleston agree with this judgment; but 
 my Brother Denman has written a short opinion of his own, with 
 which my Brother Field agrees. 
 
 Conviction quashed. 
 
 2 
 
 STATE v. RIPPETH. 
 
 (Supreme Court of Ohio, 1904. 71 Ohio St. 85, 72 N. E. 298.) 
 
 One Rippeth was convicted of selling oleomargarine in imitation 
 of butter, and on error the judgment of conviction was set aside in 
 the circuit court, and the state brings error. 
 
 The defendant in error was charged, by affidavit filed with P. A. 
 Garver, a Justi ce of the peace in and for Franklin township, Tuscar- 
 awas county, wiih having unlawfully sold and delivered to one Martin 
 Cowen oleomargarine to the amount of one pound, which oleomarga- 
 rine then and there contained artificial (yellow) coloring matter, the 
 
 2 Accord: Adultery, Banks v. State, 96 Ala. 78, 11 South. 404 (1891). 
 
 Selling liquor to minors, People v. Welch, 71 Mich. 548, 39 N. W. 747, 1 
 L. R. A. 385 (1888). [Contra: State v. Hartfiel, 24 Wis. 60 (1S09) ; Fanner 
 v. People, 77 111. 322 (1875) ; State v. Cain, 9 W. Va. 559 (1S76) ; Common- 
 wealth v. Finnegan, 124 Mass. 324 (1878) ; Redmond v. State, 36 Ark. 58, 38 
 Am. Rep. 24 (1880) ; State v. Sasse. 6 S. D. 212. 60 N. W. 853, 55 Am. St. 
 Rep. 834 (1894) ; In re Carlson's License, 127 Pa. 330, 18 Atl. 8 (1SS9).] Sell- 
 ing liquor to habitual drunkards, Williams v. State, 48 Ind. 306 (1874) ; Crab- 
 tree v. State, 30 Ohio St. 382 (1876); Smith v. State, 55 Ala. 1 (1S76). 
 [Contra: Barnes v. State, 19 Conn. 398 (1849) ; State v. Heck, 23 Minn. 549 
 (1S77).] Having in possession counterfeiting tools, People v. White. 34 Cal. 
 183 (1867). Illegal voting by person under 21 years. Gordon v. State. 52 
 Ala. 308, 23 Am. Rep. 575 (1875). Permitting growth of Canada thistles. 
 Story v. People, 79 111. App. 562 (1898). Contra: Bigamy, Commonwealth 
 v. Mash. 7 Mete. (Mass.) 472 (1844) ; Davis v. Commonwealth, 13 Bush (Ky.) 
 318 (1877) ; State v. Zichfeld. 23 Nev. 304, 46 Pac. 802. 34 L. R. A. 784. »V_> 
 Am. St. Rep. S0O (1S96). Adultery, State v. Goodenow, 65 Me. 30 (1876); 
 People v. Hartman, 130 Cal. 4S7, 62 Pac. 823 (1900). Allowing minors to 
 loiter on premises, State v. Kinkead, 57 Conn. 173. 17 Atl. 855 (1SS0). Sell- 
 ing adulterated food, Commonwealth v. Farren, 91 Mass. 4S9 (1864) : State v. 
 Smith, 10 R. I. 258 (1872); People v. Kibler, 106 N. Y. 321. 12 N. E. 795 
 (1887); State v. Newton, 50 N. J. Law, 534, 14 Atl. 604 (1SSS) ; State v. 
 Kellv, 54 Ohio St. 166, 43 N. E. 103 (1S96). Selling intoxicating liquor. King 
 v. State. 66 Miss. 502. 6 South. 188 (1889); Commonwealth v. O'Kean, 152 
 Mass. 584, 26 N. E. 97 (1891). Having in possession adulterated tobacco, Reg. 
 v. Woodrow, 15 M. & W. 40 4 (1846). Selling vinesar below standard. People 
 v. Grocer Co., 118 Mich. 604, 77 N. W. 315 (1898). Removing timber from 
 school lands, State v. Dorman, 9 S. D. 52S. 70 N. W. 848 (1897).
 
 112 THE CRIMINAL INTENT. (Ch. 3 
 
 name of which coloring matter was unknown to the affiant, con- 
 trary to statute in such case made and provided, etc. On this affi- 
 davit the defendant was put upon trial to a jury of 12 men. The 
 purchaser of the said oleomargarine, Martin Cowen, is an inspector 
 in the dairy and food department of the state of Ohio, and it appeared 
 upon the trial that on the 17th day of January, 1901, the said Martin 
 Cowen entered the grocery of the defendant in error, presented his 
 card, which contained his name, address, and official capacity, then 
 and there stating to said defendant in error that he was a state food 
 inspector, and that he desired to see his oleomargarine. The defend- 
 ant in error took said Cowen around his counter and showed him the 
 oleomargarine, which was done up in pound packages. Cowen said 
 to Rippeth, "I would like to have a pound of this oleomargarine for 
 analysis," whereupon Rippeth said, "All right," and delivered the 
 oleomargarine, and accepted the market price therefor. "The same 
 was taken to a chemist — Prof. Hobbs — and was analyzed by him, and 
 proved to contain coloring matter. At the close of the testimony 
 offered by the state the defendant made a mc^tinrrto the" justice lo~ 
 direct a verdict in his behalf. The court overruled this motion, and, 
 n'o_evidence being offered by the defense, the case was argued by 
 counsel, and after a charge by the court was submitted to the jury, 
 who returned a verdict of guilty. Motion to set aside the, verdict 
 was filed by the defendant, and overruled by the justice. A bill of 
 exceptions was prepared, signed, and allowed, and proceedings in 
 error prosecuted in the court of common. pleas, where the judgment 
 of the justice of the peace was affirmed. On petition in error in the 
 circuit court the judgment of the court of common pleas was revers- 
 ', and this proceeding in error is prosecuted to reverse the judg- 
 ment of the circuit court and affirm the judgment of the court of 
 common pleas. 
 
 PER Curiam. Section 4200-16, Bates' Ann. St., makes it a penal 
 
 offense for any person to "sell or deliver" any oleomargarine which 
 
 contains coloring matter. This is a police regulation, imposing a 
 
 penalty irrespective of criminal intent; and it contains no exception 
 
 in favo? of arry person, nor as to whom the prohibited article may be 
 
 or delivered, nor for what purpose. The dealer in the adulter- 
 
 ' article has it in his possession for sale, and sells or delivers the 
 
 :mie at his peril. lie cannot shield himself by the plea of ignorance 
 
 in regard to its character, nor by the plea that he made the sale for 
 
 anal; r For any other purpose. State v. Kelly, •"> I Ohio St. 166, 
 
 }r,?, : State v. Hutchin son, 56 ( >hio St. 82, 46 X. E. 71. 
 
 [gment "f the circuit court reversed, and judgment of the court 
 
 of i affirmi 
 
 b, C. J., and Dav uck, Price, and Summers, JJ., concur. 
 
 Crew, J. (dissenting). 1 I cannot concur in the conclusion reached 
 by a majority <>f die court that the judgment of conviction in this 
 
 i Part of this opinion is omitted
 
 Sec. 5) INTENT IN STATUTORY CRIMES. 113 
 
 case was right and should be affirmed. Section 4200-16, Bates' Ann 
 St., provides that "no person shall manufacture, offer or expose for 
 sale, sell or deliver, or have in his possession with intent to sell or 
 deliver, any oleomargarine which contains any methly [methyl], 
 orange, butter yellow, annato, analine dye, or any other coloring mat- 
 ter." Section 4200-7 provides that "every person manufacturing, 
 offering or exposing for sale, or delivering to a purchaser, any drug 
 or article of food included in the provisions of this act, shall furnish 
 to any person interested, or demanding the same, who shall apply 
 to him for the purpose, and shall tender him the value of the same, a 
 sample sufficient for the analysis of any such drug or article of food 
 which is in his possession." And by section 4200-8 it is provided 
 that "whoever refuses to comply, upon demand, with the require- 
 ments of section 4 (section 4200-7), and whoever violates any of the 
 provisions of this act, shall be guilty of a misdemeanor, and upon 
 :onviction shall be fined not exceeding one hundred dollars nor less 
 that twenty-five dollars, or imprisoned not exceeding one hundred nor 
 less than thirty days, or both." It will be observed that above sec- 
 ♦ion 4200-7 is not merely directory, but is in terms peremptory and 
 mandatory, and a failure to comply with its provisions is by section 
 4200-8 made a misdemeanor punishable by fine or imprisonment, or 
 both. If, then, the sample of oleomargarine furnished and deliver- 
 ed by Rippeth to the inspector, Cowen, on his demand, and for the pur- 
 pose of analysis, was oleomargarine which Rippeth was "offering or 
 exposing for sale," then such furnishing and delivery by Rippeth was, 
 by force of the provisions of section 4200-7, made compulsory, and 
 such furnishing would not, therefore, in legal intendment, amount to 
 or constitute a sale, inasmuch as in such transaction one of the es- 
 sential elements of the contract of sale is wanting, viz., the voluntary 
 assent of the seller. Furthermore, section 4200-7, as we have seen, 
 peremptorily commands and requires a dealer in oleomargarine to 
 furnish to the inspector, or any person demanding the same, on de- 
 mand and tender of the price, a sample of such oleomargarine for the 
 purpose of analysis, and a penalty is provided for his refusal so to do. 
 So that what was done by Rippeth in this case in the matter of fur- 
 nishing or delivering to Cowen, the inspector, this sample of oleo- 
 margarine was that only which the statute itself commanded and re- 
 quired him to do in that behalf, and such furnishing by him was. 
 therefore, a compliance with and an obedience of the positive man- 
 date of the statute, rather than a transgression or violation of its 
 provisions and requirements, and was, therefore, not unlawful. The 
 statute having made the furnishing of a sample, for the purpose of 
 analysis, obligatory and compulsory, a furnishing for such purpose 
 is not a crime, and cannot rightfully be made a predicate for the crim- 
 inal prosecution of the person so furnishing said sample. 
 Mik.Cb.L.— 8
 
 ' 
 
 
 
 114 THE CRIMINAL INTENT. (Ch. 3 
 
 SECTION 6.— CONCURRENCE OF SEVERAL INTENTS. 
 
 REX v. WILLIAMS. 
 
 (King's Bench, 1795. 1 Leach, 529.) 
 
 Mr. Justice Ashurst. 1 Rhenwick Williams, the prisoner at the 
 bar, was tried in the last July session on St. 6 Geo. I, c. 23. And the 
 indictment charged that he, on the ISth January, 1790, at the parish 
 of St. James, in a certain public street called "St. James' Street," will- 
 fully, maliciously, and feloniously did make an assault on Anne Porter, 
 \ spinster, with intent willfully and maliciously to tear, spoil, cut, and 
 deface her garments, and that he, on that said 18th of January, 1790, 
 in the parish aforesaid, etc., did willfully, maliciously, and felonious- 
 ly tear, spoil, cut, and deface her silk gown, petticoat, and shift, 
 being part of the wearing apparel which she then had and wore on 
 her person. The jury found the prisoner guilty; but the judgment 
 was respited, and the case submitted to the consideration of the judges 
 upon three questions. 
 
 The judges are of opinion that the case, as proved, is not substan- 
 tially within the meaning of the act of Parliament. This statute was 
 passed upon a particular and extraordinary occasion. Upon the in- 
 troduction of Indian fashions into this country, the silk weavers, con- 
 ceiving that it would be detrimental to their manufacture, made it a 
 practice to tear and destroy the clothes and garments which were of 
 a different commodity from that which they wove, and to prevent 
 this practice St. 6 Geo. I, c. 23, was made. To bring a case, there- 
 fore, within this statute, the primary intention must be the tearing, 
 spoiling, cutting, or defacing of the clothes; whereas, in the present 
 case, the primary intention of the prisoner appears to have been the 
 wounding of the person of the prosecutrix. The Legislature, at the 
 time they passed this act, did not look forward to the possibility of a 
 crime of so diabolical a nature as that of wounding an unoffending 
 ncrson merely for the sake of wounding the person, without having 
 received any provocation whatever from the party wounded. But, 
 <^ven upon the supposition that it was possible for the Legislature to 
 entertain an idea of such an offense, it is clear they did not intend 
 to include it within the penalties of this statute, because, if they had 
 entertain' d such an idea, it is probable they would have annexed to 
 it a higher punishment than this statute inllicts. As the Legislature, 
 therefore, could not have framed this statute to meet this offense, it 
 does not fall within the province of those who are to expound the 
 laws to usurp the office of the Legislature, and to bring an offense 
 
 ■ Pari of this case is <>mi t f <■<!.
 
 SeC. 6) CONCURRENCE OF SEVERAL INTENTS. 115 
 
 within the meaning of an act merely because it is enormous and de- 
 serving of the highest punishment. But, although the lash of the 
 Legislature does not reach this offense, so as to inflict the conse- 
 quences of felony on the offender, yet the wisdom of the common 
 law opens a means of prosecution by indictment for the misdemeanor, 
 and, on conviction of the offender, arms the court with a power to 
 punish the offense in a way that may force him to repent the temerity 
 of so flagrant a violation of the rules of law, the precepts of social 
 duty, and the feelings of humanity. 2 
 
 ^ Y^ REX v. GILLOW. ^-W 
 
 (Court for Crown Cases Reserved, 1825. 1 Moody, 85.) 
 
 The prisoner was tried and convicted before Mr. Justice Bayley, 
 at the Lancaster Lent Assizes, in the year 1825, of maliciously shoot- 
 ing at Dennis Carter, with intent to do him some grievous bodily 
 harm. It appeared that the prisoner had just come out of a wood, 
 armed with a gun, illegally to kill game there, between 2 and 3 o'clock 
 on the morning of the 2d November, 1824. He was skirting the wood 
 to kill game there, when three keepers, who were upon the watch 
 for poachers, suddenly sprung up, and were rushing forward to seize 
 him, when the prisoner fired his gun at one of the keepers, and hit 
 him upon the lower part of his back and buttocks. 
 
 The wound was not dangerous. 
 
 The jury were of opinion that the prisoner's motive was to prevent 
 his lawful apprehension, but that in order to effect that purpose he 
 had also the intention of doing to Carter some grievous bodily harm. 
 
 It was objected that, the act having specified the intent to prevent 
 lawful apprehension, as one of the intents made essential to consti- 
 
 2 It seems that Mr. Justice Buller, at the subsequent consultation of the 
 judges, retained the opinion he had given to the jury, viz., that the case 
 came within the statute, becaiise the jury, whose sole province it was to find 
 the intent, had expressly found that the intent of the prisoner was to wound 
 the party by cutting through her clothes, and therefore that he must have 
 intended to cut her clothes; and for this opinion he relied upon the Case 
 of Cook and Woodburn, upon St. 22 & 23 Car. II, c. 1, commonly called the 
 "Coventry Act," charging them in the words of the act with an intention to 
 maim a Mr. Crisp. The fact of maiming was clearly proved, but the defend- 
 ants insisted that their intention was to murder him, and not to maim him. 
 and therefore that they were not within the statute. But Lord King said 
 that the intention was a matter of fact to be collected from the circumstan- 
 ces of the case, and as such was proper to be left to the jury, and that, if it 
 was the intent of the prisoners to murder, it was to be considered whether 
 the means made use of to accomplish that end and the consequences of those 
 means were not likewise in their intention and design; and the jury found 
 them guilty and they were executed. But it seems that upon a subsequent oc- 
 casion Willes, J., and Eyre, B., expressed some dissatisfaction with this de- 
 termination, and thought, at least, that the construction ought not to be car- 
 ried further. 1 East, 400. 424. See People v. Cotteral, 18 Johns. (N. Y.) 115 
 (1820).
 
 116 THE CRIMINAL INTENT. (Ch. 3 
 
 tute the offense, and that being the main and principal intent in this 
 case, the indictment should have charged that as the intent. The 
 learned judge was of opinion that, if both intents existed, the ques- 
 tion which was the principal and which was the subordinate inten- 
 tion was immaterial; but, though the learned judge did not reserve 
 the point, he thought it right to submit the case to the consideration 
 of the judges. In Easter term, 1825, the judges (Best, L. C. J., and 
 i Littledale, J., absent) met and considered this case, and held that, 
 if both intents existed, it was immaterial which was the principal and 
 which the subordinate one, and that the conviction was therefore 
 proper. 1 
 
 i Accord: Rex v. Shadbolt, 5 Car. & P. 504 (1833); State v. Mitchell. 27 
 N. C. 350 (1845) ; People v. Carmichael, 5 Mich. 10, 71 Am. Dec. 769 (1858) ; 
 State v. Clark, 69 Iowa, 196, 28 N. W. 537 (1S86).
 
 NEGLIGENCE AS SUPPLYING INTENT 117 
 
 CHAPTER IV. 
 
 NEGLIGENCE AS SUPPLYING INTENT. 
 
 Touching the sin of homicide, appeals are made thus: Knotting-, 
 who is here, appeals Carling, who is there, for that whereas Cadi, 
 the father (brother, son, or uncle) of this Knotting * * * was 
 struck on such a part of his body by a curable stroke (or had such a 
 curable disease or wound), for the cure whereof he had placed him- 
 self under this Carling, who professed himself a master of medical 
 practice, there came this Carling, and undertook the case, and bv 
 his folly and negligence, etc., feloniously slew him. Or thus : with- 
 drew sustenance from him, whereby on such a day, etc., he slew him. 
 Or thus: so long delayed his delivery [from prison] that thereby he 
 slew him. 
 
 Mirror of Justices (Sel. Soc.) c. 15. 
 
 HULL'S CASE. 
 
 (Old Bailey, 1664. Kelyng, 40.) 
 
 In the Sessions in the Old Bailey holden the 13th of January, 1664, 
 one John Hull was indicted for the murder of Henry Cambridge, 
 and upon the evidence, the case was, that there were several . work- 
 men about building of a house by the Horse Ferry, which house 
 stood about . thirty feet from any highway or common passage, and 
 Hull being a master workman (about evening when the master work- 
 man had given over work, and when the laborers were putting up 
 their tools), was sent by his master to bring from the house a piece 
 of timber which lay two stories high, and he went up for that piece 
 of timber, and before he threw it down, he cried out aloud, stand 
 clear, and was heard by the laborers, and all of them went from the 
 danger but only Cambridge, and the piece of timber fell upon him 
 and killed him ; and my Lord Chief Justice Hyde held this to be man- 
 slaughter, for he said he should have let it down by a rope, or else 
 at his peril, be sure nobody is there; but my Brother Wylde and 
 myself held it to be misadventure, he doing nothing but what is usual 
 for workmen to do; and before he did it, crying out aloud, stand 
 clear, and so gave notice if there were any near they might avoid 
 it ; and we put the case ; a man lopping a tree, and when the arms 
 of the tree were ready to fall, calls out to them below, take heed,
 
 118 NEGLIGENCE AS SUPPLYING INTENT. (Ch. 4 
 
 and then the arms of the tree fall and kill a man, this is misadventure ; 
 and we showed him Poulton de pace 120, where the case is put, and 
 the book cited, and held to be misadventure; and we said this case 
 in question is much stronger than the case where one throws a stone 
 or shoots an arrow over the wall or house, with which one is slain, 
 this in Kelloway 108 and 136, is said to be misadventure. But we 
 did all hold that there was a great difference betwixt the case in ques- 
 tion, the house from which the timber was thrown standing thirty 
 foot from the highway or common footpath, and the doing the same 
 act in the streets of London; for we all agreed, that in London, 
 that if one be a cleansing of a gutter, called out to stand aside, and 
 then throw down rubbish, or a piece of timber, by which a man is 
 killed, this is manslaughter; being in London, there is a continual 
 concourse of people passing up and down the streets, and a new 
 passenger, who did not hear him call out, and therefore the casting- 
 down any such thing from a house into the streets, is like the case 
 where a man shoots an arrow or gun into a market-place full of peo- 
 ple, if any one be killed it is manslaughter; because in common pre- 
 sumption his intention was to do mischief, when he casts or shoots 
 any thing which may kill among a multitude of people; but in case 
 that an house standing in a country town where there is no such 
 frequency of passengers, if a man call out there to stand aside, and 
 take heed, and then cast down the filth of a gutter, etc., my Brother 
 Wylde and I held that a far different case from doing the same thing 
 in London. And because my Lord Hyde differed in the principal 
 case, it was found specially, but I take the law to be clear, that it is 
 but misadventure. 
 
 REX v. BURTON. 
 
 (King's Bench, 1721. 1 Strange, 481.) 
 
 The defendant came to town in a chaise, and before he got out 
 of it he fired his pistols, which by accident killed a woman; and 
 King, C. J. de C. B., ruled it to be but manslaughter. 
 
 KNIGHT'S CASE. 
 
 (Lancaster Assizes, 1828. 1 Lewln, C. 0. ins.) 
 
 Prisoner was indicted for manslaughter. The evidence was that, 
 being employed to drive a cart, he sat in the inside instead of attend- 
 ing at the horse's head, and while he was their sitting the cart went 
 over a child who was gathering up flowers in the road.
 
 NEGLIGENCE AS SUPPLYING INTENT. 119 
 
 Per BaylEY, J. "The prisoner, by being in the cart instead of at 
 the horse's head, or by its side, was guilty of negligence; and, death 
 having been caused by such negligence, he is guilty of manslaughter." 
 
 Note. — A similar case occurred before Hullock, B., at the York Spring 
 Assizes, 1820, and a similar judgment was delivered. 
 
 RIGMAIDON'S CASE. 
 
 (Lancaster Assizes, 1833. 1 Lewin, C. C 180.) 
 
 Prisoner, a wine merchant at Liverpool, was indicted for man- 
 slaughter, in having, by negligence in the manner of slinging a cask 
 or puncheon, caused the same to fall and kill two females who were 
 passing along the causeway. It appeared in evidence that there were 
 three modes of slinging casks customary in Liverpool : One by slings 
 passed round each end of the cask ; a second, by can-hooks ; and a 
 third, in the manner in which the prisoner had slung the cask, which 
 caused the accident, viz., by a single rope round the center of the cask. 
 
 The cask was hoisted up to Ihe fourth story of a warehouse, and 
 on being pulled endways towards the door it slipped from the rope 
 as soon as it touched the floor of the room. 
 
 Per Parke, J., to the jury: "The double slings were undoubtedly 
 the safest mode ; but if you think the mode which the prisoner adopt- 
 ed, viz., that of a single rope, was reasonably sufficient, you cannot 
 convict him." 
 
 Prisoner was convicted, and sentenced to a month's imprisonment. 1 
 
 STATE v. HARDIE. 
 
 (Supreme Court of Iowa, 1878. 47 Iowa, 647, 26 Am. Rep. 406.) 
 
 The defendant was indicted for murder in the second degree. He 
 was convicted of the crime of manslaughter, and sentenced to the 
 penitentiary for one year. The facts of the case appear in the opinion. 
 
 Rothrock, C. J. 2 It appears from the evidence that the defend- 
 ant was a boarder in the family of one Gantz, who is his brother-in- 
 law. On the day of the homicide defendant was engaged in varnish- 
 ing furniture. Mrs. Sutfen, a neighbor, called at the house, and after 
 some friendly conversation she went into the kitchen. When she 
 came back, defendant picked up a tack hammer and struck on the 
 door. She said, "My God, I thought it was a revolver." A short 
 time afterwards she went into the yard to get a kitten. Defendant 
 said he would frighten her with the revolver as she came in. He took 
 
 i Compare Reg. v. Finney, 12 Cox, C. C. 625 (1874). 
 2 Part of the opinion is omitted.
 
 
 120 NEGLIGENCE AS SUPPLYING INTENT. (Ch. 4 
 
 a revolver from a stand drawer and went out of the room, and was 
 in the kitchen when the revolver was discharged. He immediately 
 came in and said to Airs. Gantz, his sister, "My God, Hannah, come 
 and see what I have done." His sister went out and found Mrs. Sut- 
 fen lying on the sidewalk at the side of the house, with a gunshot 
 wound in the head, and in a dying condition. 
 
 The revolver had been in the house about five years. It was found 
 by Gantz in the road. There was one load in it when found. Some 
 six months after it was found Gantz tried to shoot the load from it, 
 and it would not go off. He tried to punch the load out, but could 
 not move it. He then laid it away, thinking it was harmless. The 
 defendant was about the house and knew the condition of the re- 
 volver. Upon one occasion Gantz said he would try to kill a cat with 
 the revolver. Defendant, being present, said he would not be afraid to 
 allow it to be snapped at him all day. The revolver remained in the 
 same condition that it was when found, no other load having been put 
 into it, and it was considered by the family, as well as defendant, as 
 entirely harmless. 
 
 That the revolver was in fact a deadly weapon is conclusively shown 
 by the terrible tragedy consequent upon defendant's act in firing 
 it off. If it had been in fact unloaded, no homicide would have re- 
 sulted; but the defendant would have been justly censurable for a 
 most reckless and imprudent act in frightening a woman by pre- 
 tending that it was loaded, and that he was about to discharge it 
 at her. No jury would be warranted in finding that men of ordinary 
 prudence so conduct themselves. On the contrary, such conduct is 
 grossly reckless and reprehensible, and without palliation or excuse. 
 Human life is not to be sported with by the use of firearms, even 
 though the person using them may have good reason to believe that 
 the weapon used is not loaded, or that, being loaded, it will do no 
 injury. When persons engage in such reckless sport, they should be 
 held liable for the consequences of their acts. 
 
 Affirmed. 2 
 
 STATE v. O'BRIEN. 
 
 (Supreme Court of New Jersey, 18G7. 32 N. J. Law, 100.) 
 
 Dat.rimpi.k, J. 8 On the 15th day of November, 1865, the defend- 
 ant was a switch tender in the employ of the New Jersey Railroad 
 & Transportation Company. His duty was to adjust, and keep ad- 
 justed, the switches of the road at a certain point in the city of New- 
 ark, so that passenger trains running over the road would continue 
 
 2 For responsibility to* negligence in the maintenance of dangerous animals, 
 see Reg. v. Dant, Leigh & <'. 667 (1866). 
 
 Part <>f this c;is<' is omitted.
 
 NEGLIGENCE AS SUPPLYING INTENT. 
 
 121 
 
 on the main track thereof, and pass thence to the city of Elizabeth. 
 He failed to perform such duty, whereby a passenger train of cars, 
 drawn b> a locomotive engine, was unavoidably diverted from the 
 main track to a side track, and thence thrown upon the ground. The 
 cars were thrown upon each other with great force and violence, by 
 means whereof one Henry Gardner, a passenger upon the train, was so 
 injured that he died. The defendant was indicted for manslaughter, 
 and convicted upon trial in the Essex oyer and terminer. He insisted, 
 and in different forms asked the court to charge the jury, that he 
 could not legally be convicted unless his will concurred in his omission 
 of duty. The court refused so to charge. A rule to show cause why 
 the verdict should not be set aside was granted, and the case certified 
 into this court for its advisory opinion, as to whether there was any 
 error in the charge of the court below, or in the refusal to charge as re- 
 quested. 
 
 The indictment was for the crime of manslaughter. If the defend- 
 ant's omission of duty was willful, or, in other words, if his will con- 
 curred in his negligence, he was guilty of murder. Intent to take 
 life, whether by an act of omission or commission, distinguishes mur- 
 der from manslaughter. In order to make out against the defend- 
 ant the lesser offense of manslaughter, . it was not necessary that it 
 should appear that the act of omission was willful or of purpose. The 
 court was right in its refusal to charge, as requested. 
 
 The only other question is whether there is error in the charge de- 
 livered. The error complained of is that the jury were instructed 
 that a mere act of omission might be so criminal or culpable as to 
 be the subject of an indictment for manslaughter. Such, we believe, 
 is the prevailing current of authority. Prof. Greenleaf, in the third 
 volume of his work on Evidence (section 129), in treating of homicide, 
 says : "It may be laid down that, where one by his negligence has con- 
 tributed to the death of another, he is responsible. The caution which 
 the law requires in all these cases is not the utmost degree which can 
 possibly be used, but such reasonable care as is used in the like cases, 
 and has been found, by long experience, to answer the end." Whar- 
 ton7~irT his Treatise on Criminal Law (page 382), says: "There are 
 many cases in which death is the result of an occurrence in itself 
 unexpected, but which arose from negligence or inattention. How far 
 in such cases the agent of such misfortune is to be held responsible 
 depends upon the inquiry whether he was guilty of gross negligence 
 at the time. In feren ces of__guilt arejriot to_be_ drawn from remote 
 causes, and the degree of caution requisite to bring the case within 
 the limits of misadventure must be proportioned to_the probability 
 of danger attending the act immediately con ducive to the death." The 
 propositions, so'well stated by the eminent writers referred to, we 
 believe to be entirely sound, and are applicable to the case before us. 
 The charge, in the respect complained of, was in accordance with 
 them. It expressly states that it was a question of fact, for the jurv
 
 122 NEGLIGENCE A8 SUPPLYING INTENT. (Ch. 4 
 
 to settle, whether the defendant was or was not guilty of negligence ; 
 whether his conduct evinced under the circumstances such care and 
 diligence as were proportionate to the danger to life impending. The 
 <very definition of crime is an act omitted or committed in violation 
 jaf-public law. The defendant in this case omitted his duty under such 
 circumstances as amounted to gross or culpable or criminal negligence. 
 The court charged the jury that if the defendant, at the time of the ac- 
 cident, was intending to do his duty, but in a moment of forgetful- 
 ness omitted something which any one of reasonable care would be 
 likely to omit, he was not guilty. The verdict of guilty finds the 
 question, in fact, involved in this proposition against the defendant, 
 and convicts him of gross negligence. He owed a personal duty not 
 only to his employers, but to the public. He was found to have been 
 grossly negligent in the performance of that duty, whereby human 
 life was sacrificed. His conviction was right, and the court below 
 should be so advised. 2 
 
 REGINA v. MACLEOD. 
 
 (Court of Criminal Appeal, 1874. 12 Cox, C. C. 534.) 
 
 Alexander Macleod was charged with the manslaughter of his 
 wife, Annie Macleod, at Carlisle, on the 15th of October, 1873. 
 
 The case against the prisoner was that of having unlawfully killed 
 his wife by having administered to her a large quantity of a certain 
 drug called muriate of morphia. From the evidence it appeared the 
 prisoner, who had been for about twenty or thirty years a surgeon 
 on the medical staff of the Madras army in India, came over to live 
 in England, about a year and a half or two years ago, and shortly 
 after came to Carlisle, and brought with him the deceased woman, his 
 wife. For a short time before the 15th of October, while the prison- 
 er and his wife were living together in Chiswick street, Carlisle, one 
 of their children, who was about six years of age, became ill of ty- 
 phoid fever, and for a fortnight before that the deceased woman had 
 
 2 Accord: Reg. v. Pargeter, 3 Cox, C. C. 1901 (1848); Reg. v. Hughes, 
 7 Cox, C. C. 301 (1S57) ; cf. Rex v. Green, 7 Car. & P. 15G (1835). See, also, 
 r. S. v. Knowles, 4 Sawy. (U. S.) 517, Fed. Cas. No. 15,540 (1804); Thomas 
 v. People, 2 Colo. App. 513, 31 Pac. 349 (1892). 
 
 "If the prisoner is and has been afflicted in the manner claimed [with 
 somnambulism], and knew, as he no doubt did, his propensity to do acts of 
 violence when aroused from Bleep, be was guilty of a grave broach of social 
 duly in going to Bleep in the public room of a hotel with a deadly weapon 
 on his person, and merits, for that reckless disregard of the safety of others, 
 K>me degree of punishment ; but we know of no law under which lie can be 
 punished. Our law only punishes for overt acts done by responsible moral 
 agents. If the prisoner was unconscious when he killed the deceased, he 
 cannot be punished for that act, and, as the mere fact that he had a weapon 
 OD his person and wenl to Bleep With it there did no injury to any one. he 
 cannot be punished for that" Gofer, J. f in Fain v. Commonwealth, 78 Ky. 
 183, 89 Am. Rep. 218 (1879).
 
 , 
 
 NEGLIGENCE A3 SUPPLYING INTENT. 123 
 
 been in a bad and weak state of health. That indisposition was mater- 
 ially increased by having to attend to her sick child, which she had 
 done most assiduously, and for several days previous to the 15th of 
 October she appeared never to have obtained good rest. In the mid- 
 dle of that day — the loth of October — she appeared very unwell in- 
 deed, and the prisoner, finding she had not obtained any proper rest, 
 determined to give her an opiate. At 4 p. m. he went to Mr. Todd, 
 a chemist in the town, and there obtained in a bottle 20 grains of mor- 
 phia, and paid eightpence for it, that being the price of that quantity 
 to a medical man. The prisoner went home, gave his wife 1 grain, 
 after weighing it, and repeated other doses without weighing them ; 
 altogether he administered something like 16^ grains before 7 o'clock 
 that evening, in about 3 or Sy 2 hours. About 6 :30 the prisoner went 
 for Dr. Walker, and told him his wife had taken too much morphia, 
 and as they were proceeding from Dr. Walker's house to the pris- 
 oner's they had a conversation in which the prisoner stated that he 
 had given her repeated doses of morphia, that he had given her one 
 grain as a first dose, which he had weighed, but that in repeating 
 the doses he had not weighed them, but guessed the quantity. Dr. 
 Walker, on his arrival, found the poor woman lying on the hearth 
 rug in front of the fire, suffering from pain, and apparently uncon- 
 scious. Dr. Walker tried various means of restoring her. At 20 
 minutes before 9 o'clock Dr. Maclaren was called in, and he injected 
 atropine as an antidote. The deceased was then in a state almost 
 comatose, and it was found impossible to rouse her. She died at 
 10 o'clock, having all the symptoms of death by morphia. Under 
 these circumstances it was submitted by the prosecution that the 
 conduct of the prisoner had been so heedless and reckless in giving 
 such large doses of morphia that he was criminally liable, and was 
 guilty of the offense of manslaughter. 1 
 
 D£nman, J., in summing up the case to the jury, said the law was 
 this: Whether a man be a medical man or not, if he dealt with dan- 
 gerous medicines, he was bound to use them with proper skill, and 
 was bound to bring proper care, and employ proper caution, so that 
 persons should not be endangered by want of skill on his part, or 
 want of caution or care in dealing with those deadly ingredients. 
 Whether it be deadly weapons, or drugs, the law was the same, and 
 it made no difference whether a medical man was dealing with a pa- 
 tient, or, as a volunteer, dealing with his friend or his wife. The jury 
 might be enlightened by looking at the relations between the parties, 
 and he was by no means prepared to say that, in judging of the evi- 
 dence, it would not enlighten them very much, and enable them to 
 appreciate the evidence on the main point, whether the man did not 
 do his best, not in the sense of doing a bad best — but doing a good 
 best; he being a medical man, and therefore likely to know whether 
 
 * Part of this case is omitted.
 
 124 NEGLIGENCE AS SUPPLYING INTENT. (Cll. 4 
 
 a drug was likely to be dangerous in the quantity administered or in- 
 nocuous. There was ample evidence that the death of the deceased 
 was caused by morphia. There was great difference of opinion as 
 to the quantity of the drug which could be administered safely. How- 
 ever, if the jury were satisfied that the death was caused by morphia, 
 and if it was administered without proper care, skill, and caution, and 
 without a proper knowledge of morphia by the prisoner, whether in 
 the weighing of the drug, or in any other way, that would be clear 
 negligence — he would not use the term "gross negligence," because 
 it was liable to misinterpretation — and, if that was so, the prisoner 
 would be guilty of manslaughter. But if the drug was administered 
 without want of skill, and intending to do for the best — doing noth- 
 ing, in fact, a skillful man might not do — then, if the jury merely 
 thought it was some error of judgment, which anybody might have 
 committed, the prisoner should be acquitted. 
 Not guilty. 2 
 
 
 
 ootf WESTRUP v. COMMONWEALTH. 
 
 (Supreme Court of Kentucky, 1906. 29 Ky. Law Rep. 519, 93 S. W. 646, _&_ 
 rV< L. R. A. [N. S.] 685.) 
 
 Appeal by defendant from a judgment of the circuit court for 
 Campbell county convicting him of manslaughter. Reversed. The 
 facts are stated in the opinion. 
 
 Settle, J., delivered the opinion of the court. The appellant was 
 indicted by the grand jury of Campbell county, and tried in the cir- 
 cuit court of that county, for involuntary manslaughter, alleged to 
 have been committed by willfully neglecting to furnish his wife, then 
 pregnant and about to be delivered of a child, with such care and 
 attention as were necessary during her confinement in childbirth, there- 
 by causing her death. Upon the trial the jury found appellant guilty 
 as charged, and fixed his punishment at imprisonment in the county 
 jail eight months, in conformity to which judgment was duly entered. 8 
 
 According to the evidence, appellant's wife, Florence Westrup, 
 died February 27, 1905, about two hours after giving birth to a 
 child. She and appellant were married in Chicago in the year 1900, 
 but had been living in Newport but a few months before her death, 
 and had formed very few acquaintances there. They were an affect- 
 ionate couple, though both were reserved in disposition and positive 
 in tlirir beliefs. He is an artist, and previous to his wife's death was 
 at work for the Donaldson Lithographing Company, earning $20 
 per week, and his wages, when received by him, were delivered to 
 his wife for safe-keeping and use in their joint support. They wire 
 
 s Accord: State v. Hardlster, 88 Ark. 80S, 42 Am. Rep. 5 (1882); Com- 
 monwealth v. Pierce, 188 Mass, 165, 52 Am. Rep. 264 (issi). 
 i I'art of the opinion is niuittvil.
 
 
 
 NEGLIGENCE AS SUPPLYING INTENT. 1-'.") 
 
 housekeeping in rented rooms of a house which was in part occupied 
 by other renters, and the household work was done by the wife, with 
 such assistance as the husband would take time from his own work 
 to give her. The evidence further showed that the wife became preg- 
 nant, and was of opinion that her child would be born the 4th of 
 March, 1905 ; that she was a woman of unusual intelligence, and, 
 though never before with child, had some peculiar ideas as to the 
 care to be taken of herself during pregnancy and of the child after 
 its birth, in which her husband seems to have shared; that she was 
 a strong believer in the laws of nature, and read many books on 
 that subject and medicine, among which was one called "Tokology,* 
 written by Dr. Stockham, a female physician, of Chicago, with whom 
 she corresponded before the birth of her child; that, as a result of 
 her reading and correspondence with the female doctor, appellant's 
 wife conceived a great aversion to physicians, and contended that 
 they were too ready to resort in cases of childbirth to the use of in- 
 struments, which often resulted in death or injury to both mother and 
 child, and declared her purpose to do without the services of one at 
 the birth of her child. Adhering to this view, she by letter requested 
 a sister of her husband, living in another state, to be with her in her 
 confinement, naming March 4th as the date, and the sister promised 
 to do so, and, without knowing of the illness of the appellant's wife, 
 did in fact reach Newport on the day of and a few hours after her 
 death. It also appeared from the evidence that appellant's wife was 
 seized with labor pains early in the morning of the day on which she 
 died ; but, as she had previously suffered what appeared to be similar 
 pains, which soon passed away, she and appellant remained, until 
 shortly before the birth of the child, in the belief that she would not 
 be confined before March 4th, five days later than the one on which 
 she died. But, contrary to their expectations, the birth of the child 
 occurred between 1 and 3 p. m. of that day, February 27, 1905, and, 
 though for a short while thereafter the mother seemed to be doing 
 well, about 4 o'clock she became worse, alarmed at which appellant 
 called in two women residing in the same house, and, upon being ad- 
 vised by one of them that a physician should be summoned, he im- 
 mediately sent for one, who upon reaching the wife's bedside attempt- 
 ed to give her some medicine, which she refused to take. The doc- 
 tor, by appellant's direction, and notwithstanding the patient's objec- 
 tion, then made an examination of her person, and discovered that she 
 had not been relieved of the afterbirth, which he attempted to remove ; 
 but, finding that it could not be done without his instruments, he 
 went to his office for them, and upon his return to appellant's residence 
 found that the patient had died during his absence of post partum 
 hemorrhage, which, according to the testimony of the medical expert 
 introduced in behalf of the commonwealth, sometimes follows child- 
 birth, is nearly always fatal, and may be produced from many causes, 
 such as retention of the afterbirth, laceration, weakness from disease,
 
 126 NEGLIGENCE AS SUPPLYING INTENT. (Cll. 4 
 
 unhygienic surroundings, or other causes. It does not appear from 
 the evidence what caused the hemorrhage in this instance, as there 
 was no post mortem examination held. 
 
 It is manifest from the evidence that the confinement of appellant's 
 wife came five days sooner than they expected it; that she had re- 
 solved to do without the services of a physician in her confinement, 
 and had influenced appellant to adopt her opinion that the services 
 of a physician would be unnecessary at such a time; that during her 
 labor he dutifully remained with her, and assisted her to the best of 
 his ability, and as she directed him ; that when he discovered her peril 
 he called in two women living in the same house to assist him in caring 
 for both mother and babe; that upon the suggestion of one of them 
 he immediately, and over his wife's objection, sent for a competent 
 physician to minister to her; and that the latter, in spite of her pro- 
 testations, apparently did what he could, and all she would allow him 
 to do, to relieve her, but failed to preserve her life. In view of the 
 foregoing facts, and the further facts that appellant was an affection- 
 ate husband, and had never appeared indifferent to his wife or neglect- 
 ful of any conjugal duty, and that in failing to earlier call in a phy- 
 sician he acted in good faith and at her request, though he doubtless 
 erred in so doing, we fail to find any just or reasonable ground for 
 the verdict of the jury; indeed, we think it wholly without support 
 from the evidence. It is manifest that the prosecution was bottomed 
 upon the failure of appellant to earlier provide his wife with a phy- 
 sician. Those of us who reverence the medical profession and im- 
 plicitly trust the learning and skill of the family physician may be dis- 
 posed to attribute to ignorance or prejudice such a lack of confidence 
 in that profession as was manifested by the appellant's wife, and 
 wonder that he, in the face of such a crisis as confronted them, should 
 have allowed himself to be influenced to trust to nature's laws, or 
 supernatural aid, rather than medical skill ; but the fact remains that 
 there are many who reject, as they did, both medicine and surgery 
 for other means, or supposed means, of healing, and are perfectly 
 sincere in doing so. 
 
 We may concede that appellant's wife made a grievous mistake in 
 adhering to her purpose of rejecting medical aid; yet in view of the 
 suffering, and in the end death, to which she subjected herself, her 
 ■rity cannot be doubted. And certainly there was nothing in the 
 evidence which tended to prove that appellant, though making the 
 same mistake, was any less sincere than she, unless it was the fact of 
 ending for a physician after the birth of the child. This act, how- 
 ever, ay from the evidence to have resulted more from his desire 
 to leave nothing undone for her relief than from a belief that benefit 
 would result t<> the wife from the physician's presence or treatment. 
 In any event, it was the very op fleet, and should go to 
 the credit, instead of the debit, side of appellant's accounting for the 
 offense charged in the indictment. One cannol he said in any manner
 
 
 NEGLIGENCE AS SUPPLYING INTENT. 127 
 
 to neglect or refuse to perform a duty, unless he has knowledge of 
 the condition of things which require performance at his hands. In 
 21 Am. & Eng. Enc. of Law, p. 199, it is said: "Under the common 
 law, no conviction of manslaughter, predicated upon an omission to 
 provide medical attendance from conscientious motives, has been re- 
 ported, and none can probably be had or sustained. Opinions have / 
 widely differed in all ages as to the proper mode of ministering to the j 
 sick, and, in the absence of a statute declaring it a positive duty upon 
 a parent to call in a medical practitioner, the omission to do so can 
 scarcely be considered negligence so gross and wanton as to be 
 criminal, when the fact is admitted that the defendant acted in all 
 good faith, doing the best he could according to his lights." In a 
 note at the bottom of the same page and volume will be found the 
 following from the case of Reg. v. Wagstaffe, 10 Cox, C. C. 530, 
 quoting Willes, J., who said to the jury that "at different times people 
 had come to different conclusions as to what might be done with a 
 sick person. Two hundred years ago, if a child was afflicted with the 
 King's evil, the popular feeling was, regardless of medical science, 
 to have it touched with the royal hand, because that might result in 
 effecting a cure. Again, in some Catholic countries, a custom ob- 
 tained of taking a child laboring under a disease to a particular shrine, 
 under a belief that that was the best course to adopt with a view to 
 effect a cure. In such cases a man might be convicted of manslaught- 
 er because he lived in a place where all the community were of a dif- 
 ferent opinion, and in another he might be acquitted because they were 
 all of his opinion. There was a very great difference between neglect- 
 ing a child in respect to food, with regard to which there could be but 
 one opinion, and neglect of medical treatment, as to which there might 
 be many opinions." 
 
 It was argued for the commonwealth on the trial that the life of ap- v 
 pellant's wife might or could have been saved if she had been attend- 
 ed by a physician during the birth of her child. We cannot say wheth- 
 er or not such would have been the result. It may also be claimed that, 
 if the physician had not been sent for at all, she might have lived to 
 rear her child, which is still alive and likely to continue so; for who 
 can say that the hemorrhage of which the mother died was not caused 
 by the attempt of the physician to remove the afterbirth without his 
 instruments, or that, if he had not returned to his office for the in- 
 struments, he would have been present when the hemorrhage occur- 
 red, and might have prevented or checked it. The testimony throws 
 no light on these matters. Therefore they cannot be solved, and to 
 attempt to do so would be as idle as to invade the realm of specula- 
 tion in quest of any other unknown or unknowable thing. As well 
 may it be asked why some women die in childbirth, though attended 
 by physicians, and others without their assistance often pass through 
 that ordeal harmless. We can only determine from the record before 
 us the questions that are capable of solution, and, if correct in the 

 
 128 NEGLIGENCE AS SUPPLYING INTENT. (Ch. 4 
 
 conclusion hereinbefore expressed, that there was no evidence to 
 support the verdict of the jury, it follows that the trial judge should 
 have peremptorily instructed the jury to find appellant not guilty. 
 Such being our view of the case, it is unnecessary to pass upon the 
 other questions presented. 
 
 Wherefore the judgment is reversed, and case remanded for a new 
 trial and further proceedings as directed by the opinion.' 
 
 REGINA v. MARRIOTT. 
 
 (Central Criminal Court, 1838. 8 Car. & P. 425.) 
 
 Murder. The first count of the indictment stated that it was the 
 duty of the defendant to provide one Mary Warner, under the care 
 and control of the defendant, with sufficient meat, drink, clothing, 
 firing, and medicine, and that by the neglect of the defendant so to 
 provide said Mary Warner with sufficient meat, etc., said Mary War- 
 ner became mortally diseased, and of said mortal disease died. There 
 was a second count charging that the defendant willfully, etc., as- 
 saulted Mary Warner, and confined her in a certain dark, cold, un- 
 healthy, and unwholesome room, without proper food, etc., by means 
 of which she died. 
 
 From the evidence of the prosecution it appeared that the deceased; 
 Mrs. Warner, who was about 74 years of age, had lived for some 
 time with a sister in Cannon street, in the city, in a house which they 
 let out in lodgings, and of which the sister had a lease under the Pew- 
 terers' Company. Upon the death of the sister whose name was 
 Reepe, in March, 1837, the prisoner attended at the funeral, and, 
 among others, a grandson of Mrs. Reepe, named Charles Reepe, was 
 present. He was called as a witness, and gave his evidence as fol- 
 lows: "Mrs. Warner's sister was my grandfather's second wife. I 
 remember the death of Mrs. Reepe. I went to her funeral, and saw 
 the prisoner there. After the funeral he called me on one side, and 
 asked me if I should have any objection to pay for my cloak, and my 
 sister's, and my brother's also, as he did not wish to put Mary Warner 
 to any expense, and he should pay for his. He told me he was left 
 executor. He showed me about a quarter of a sheet of writing paper 
 as a will, and told me he had found it by mere chance lying on the 
 round. I observed Mrs. Warner was much grieved, and took a chair 
 ami sal down by the side of her, and told her she should come and live 
 at home with me, and I would make her happy and comfortable for 
 the remainder of her life. 1 ler reply was, that it was a kind offer, 
 certainly. The prisoner said: "No, no, sir, she shall go home and 
 
 Reg. v. Knights, 2 V & F\ 4<; (1880); Beg. v. Shepherd, 1 Leigh 
 AC. i it (1802).
 
 NEGLIGENCE AS SUPPLYING INTENT. 129 
 
 live along with me, as you are no relation whatever." I asked him what 
 relation he was. He said he was a townsman, and that he had buried 
 Mrs. Reepe's sister, and it was Mrs. Reepe's wish that he should 
 bury her too; in fact, that he was executor. He said: "Mrs. Warner 
 is going home to live along with me until affairs are settled, and I will 
 make her happy and comfortable." 
 
 To prove the interference of the prisoner in Mrs. Warner's affairs, 
 as well as to show that he had undertaken to provide her with food 
 and other necessaries, a Mrs. Cruikshank was called as a witness. 
 She said: "I am the wife of Robert Cruikshank, and live at No. 34 
 Cannon street, city. Some days previous to the 10th of October I 
 went with my husband to No. 1 Dolphin Court. I there saw the pris- 
 oner and his wife. Mr. Marriott asked me to write an agreement 
 about the house No. 34 Cannon street, of which Mr. Cruikshank was 
 to take the upper part. I heard the prisoner mention the name of 
 Mary Warner to his wife. He talked in an indistinct tone. I could 
 hear nothing more than the name of Mary Warner. Mrs. Marriott 
 dissented to what he said, whatever it was, and he again repeated it 
 to her, and she again dissented. I asked the prisoner what interest 
 Mrs. Warner had in the house, and he said, 'None whatever.' He 
 asked me 'if I remembered a conversation he had with me respect- 
 ing the decease of Mrs. Reepe.' I told him, 'Perfectly well.' He said, 
 'Did I not remember he had told me at Mrs. Reepe's decease that Mrs. 
 Warner was her sister.' I inquired in what way Mrs. Warner could 
 be a party to the agreement. His reply was, 'None whatever.' He 
 said something about her not being capable of* undergoing the fatigue ; 
 that at her advanced age she was quite incapable; that he had been 
 accustomed to let lodgings. There was an agreement ultimately sign- 
 ed. I produce it. It is not stamped. After it had been signed, I 
 inquired whether Mrs. Warner was a relative, as he seemed to take 
 such an interest in her affairs. He said, 'None at all.' He said, re- 
 specting the house in Cannon street, Mrs. Warner having been ac- 
 customed to let lodgings, he had taken the lease of the house of the 
 Pewterers' Company, on condition of paying up an arrear of rent ; 
 that they had given him four years to pay it by three installments, 
 £20 of which he had paid, in consideration of which he had under-l 
 taken to keep Mrs. Warner comfortable as long as she lived. I wish- 
 ed to purchase some of the furniture, and he said I might make my 
 own selection. He did not say to whom it belonged. I understood 
 it was his own property. He did not speak of it as anybody's proper- 
 ty but his own. He appointed a Mr. Kelly to value the furniture in 
 the house in Cannon street to Mr. Cruikshank, and a Mr. Phillips 
 was appointed to value it for us. The amount of the valuation was 
 £37, within a few shillings. That has not been paid. We were to 
 pay it to Mr. Marriott. On her cross-examination she said : "When 
 the name of Mary Warner was mentioned, and Mrs. Marriott shook 
 her head, the prisoner said, 'Yes, yes, better;' and the name of Mary 
 Mtk.Cr.L.— 9
 
 / 
 
 130 NEGLIGENCE AS SUPPLYING INTENT. (Cll. 4 
 
 Warner was put into the agreement, because Mrs. Marriott asked me 
 to do so." 
 
 The clerk to the Pewterer's Company was called and he said : 
 "There was never any premises in Cannon street let to the prisoner. 
 He never at any time took a lease in any shape from the Pewterers' 
 Company. He has paid two installments of £11 15s. each for arrears 
 of rent due from Mrs. Reepe. He paid it as her executor. He so 
 stated." On his cross-examination he was asked whether there was 
 not a petition sent in on the part of Mary Warner, as the sister of 
 Mrs. Reepe, to let her off the arrears in consideration of her long 
 tenancy. His reply was : "There was a memorial sent in in the name 
 of the prisoner. lie stated his object to be to serve Mary Warner. 
 The prayer of the petition was not acceded to. He made himself 
 answerable for the amount, and signed a written memorandum." The 
 will of Mrs. Reepe was read. It was dated the 26th of March, 183G, 
 bequeathing to Mrs. Warner all her effects, and the lease of the house 
 in Cannon street. A clerk in the Prerogative Office was called, and 
 stated that the personal property was sworn under £100, and that let- 
 ters of administration were granted the 20th of July, 1837 ; that Mrs. 
 Warner must have appeared personally ; and that the prisoner was 
 one of her sureties for the proper administration of the effects. 1 
 
 Patteson, J., in summing up (after stating the first count of the 
 indictment and observing upon certain parts of the evidence), said: 
 If the prisoner was guilty of willful neglect, so gross and willful that 
 you are satisfied he must have contemplated t^e death of Mrs. Warner, 
 then he will be guilty of murder. If, however, you think only that he 
 was so careless that her death was occasioned by his negligence, though 
 he did not contemplate it, he will be guilty of manslaughter. The 
 cases which have happened of this description have been generally 
 cases of children and servants, where the duty has been apparent. 
 }This is not such a case; but it will be for you to say whether, from 
 the way in which the prisoner treated her, he had not by way of con- 
 tract, in some way or other, taken upon him the performance of that 
 duty which she, from age and infirmity, was incapable of doing. [His 
 Lordship then read the statements of Mr. Reepe, and Mrs. Cruik- 
 shank, and continued :] This is the evidence on which you are called 
 on to infer that the prisoner undertook to provide the deceased with 
 necessaries; and though, if he broke that contract, he might not be 
 liable to be indicted during her life, yet, if by his negligence her death 
 was oc< 1, then he becomes criminally responsible. 
 
 Verdict — Guilty of manslaughter only. 
 
 i The Btatemenl is abridged) and a portion of the evidence not bearing on 
 the duty of the (lcf.ini.nit is omitted.
 
 w 
 
 
 
 
 NEGLIGENCE AS SUPPLYING INTENT. 131 
 
 REGINA v. POCOCK. 
 (Queens Bench, 1851. 5 Cox, C. C. 172.) 
 
 This was a rule to quash a coroner's inquisition which had been 
 removed into this court by certiorari. The inquisition alleged that 
 the defendants were the trustees of a public road under an act of 
 Parliament; that it was their duty to contract for the due repara- 
 tion of the said road; that they feloniously did neglect and omit to 
 contract for the repair of the same, whereby it became very miry, 
 ruinous, deep, broken, and in great decay; and that a cart, which 
 the deceased was driving along the road, fell into a hole in the road, 
 and by reason thereof the deceased was thrown out, and sustained 
 the injuries of which he afterwards died. 
 
 Charnock showed cause. This case is not distinguishable from 
 those of persons who have the charge of machinery at mines, of 
 signals or locomotives on railways, and the like; and there are 
 many precedents of indictments for manslaughter in such cases where 
 death has been occasioned by a neglect of duty on the part of the 
 persons so intrusted. R. v. Barrett, 2 Car. & K. 343 ; R. v. Haines, 
 Id. 368; R. v. Gregory, 5 B. & Ad. 555. Here a public duty was 
 cast upon the trustees, and they were authorized to raise money bv 
 rates for the purpose; and if their neglect of duty has caused the 
 death of another they are guilty of manslaughter. 
 
 Hayes, contra, was not called upon. 
 
 Lord Campbell, C. J. The cases cited show a personal duty, the 
 neglect of which has directly caused death; and, no doubt, where 
 that is the case, a conviction of manslaughter is right. But how do 
 those apply to trustees of a highway? How can it be said that their 
 omission to raise a rate, or to contract for the reparation of the road, 
 directly causes the death? If so, the surveyors or the inhabitants of 
 the parish would be equally guilty of manslaughter; for the law 
 casts upon them the duty of keeping the roads in repair. To up- 
 hold this inquisition would be to extend the criminal law in a most 
 alarming manner, for which there is no principle or precedent. 
 
 Patteson, J. This is really too extravagant. 
 
 Wightman, J., concurred. 
 
 Erle, J. In all the cases of indictment for manslaughter, where 
 the death has been occasioned by omission to discharge a duty, it 
 will be found that the duty was one connected with life, so that the 
 ordinary consequence of neglecting it would be death. Such are the 
 cases of machinery at mines, of engine drivers, or the omission to sup- 
 ply food to helpless infants. 
 
 Inquisition quashed.
 
 132 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 CHAPTER V. 
 INTENT AS AFFECTED BY CONDITIONS. 
 
 SECTION 1.— IGNORANCE OR MISTAKE OF LAW. 
 
 REX v. THURSTON. 
 
 (King's Bench, 1G49. 1 Lev. 91.) 
 
 Indictment of murder, and on a special verdict found at the Assizes 
 at Bury, the case was: In Hillary Term, 1G59, a latitat issued to ar- 
 rest him, returnable in Easter Term, 1660, on which the twenty-ninth 
 of May he was arrested by a warrant thereupon, and upon that arrest 
 the bailiff was killed; and afterwards an act is made for the confirma- 
 tion of all judicial proceedings, which related to the first day of the 
 Parliament, viz., 15 April, 1660, and the sole question was, if by the 
 relation of the act which made the proceedings legal and the arrest 
 good (which else had been void and without authority), this killing be 
 murder. And it was argued at the bar by Kelynge, for the King, and 
 by Jones, for the defendant: And Kelynge said, that by relation all the 
 process is made good, for it shall relate to the first day of the Parlia- 
 ment ; Jones argued the act should relate to the first day of the Parlia- 
 ment, but not to such intent as to make it murther ex post facto, which 
 was not so when the fact was done. The court said nothing ; but after- 
 wards, in Easter Term, 16 Car. II, I heard Thurston plead his pardon 
 of this murder, whereby it seems as if the opinion of the court was 
 against him. 
 
 STATE v. BOYETT. 
 
 (Supreme Court of North Carolina, 1849. r,2 N. C. 336.) 
 
 PEARSON, J. 1 "Ignorantia legis neminem excusat." Every one 
 competent to act for himself is presumed to know the law. No one 
 is allowed to e himself by pleading Ignorance. Courts are com- 
 
 pelled to act upon this rule, as well in criminal as civil matters. It lies 
 at the foundation of the administration of justice. And there is no tell- 
 ing to what extent, if admissible, the plea of ignorance would be car- 
 
 ' The opinion only is printed.
 
 ■ 
 // Jo -ft- W^ W 
 
 ff ■
 
 Sec. 1) IGKOKANCE OR MISTAKE OF LAW. 133 
 
 ricd, or the degree of embarrassment that would be introduced into 
 every trial, by conflicting evidence upon the question of ignorance. 
 
 In civil matters, it is admitted, the presumption is frequently not in 
 accordance with the truth. The rules of property are complicated sys- 
 tems — the result, "not of the reason of any one man, but of many men 
 put together" ; hence they are not often understood, and more frequent- 
 ly not properly applied, and the presumption can only be justified upon 
 the ground of necessity. But in criminal matters the presumption most 
 usually accords with the truth. As to such as are mala in se, every one 
 has an innate sense of right and wrong, which enables him to know 
 when he violates the law, and it is of no consequence if he be not able 
 to give the name by which the offense is known in the lawbooks, or 
 to point out the nice distinctions between the different grades of of- 
 fense. As to such as are "mala prohibita," they depend upon the stat- 
 utes printed and published and put within the reach of every one; so 
 that no one has a right to complain if a presumption, necessary to the 
 administration of the law, is applied to him. To allow ignorance as an 
 excuse would be to offer a reward to the ignorant. 
 
 The defendant voted, when he was not entitled by law to vote. He 
 is presumed to know the law. Hence he voted, knowing that he had 
 no right, and, acting with this knowledge, he necessarily committed a 
 fraud upon the public — in the words of the act, he knowingly and 
 fraudulently voted when he was not entitled to vote. It being proved 
 on the part of the state that he voted, not having resided within the 
 bounds of the company for six months next preceding the election, 
 a case was made out against him. 
 
 He offered to prove, for the purpose of rebutting the inference of 
 fraud, that he had stated the facts to a respectable gentleman, who 
 advised him he had a right to vote. His honor held the testimony 
 inadmissible. We concur in that opinion. 
 
 The evidence had no tendency to rebut the inference of fraud, for 
 the inference was made from his presumed knowledge of the law, 
 and that presumption could not be met by any such proof, without 
 introducing all the evils which the rule was intended to avoid. The 
 question, in effect, was: Shall a man be allowed, in excuse of a 
 violation of the law, to prove that he was ignorant of the very law 
 under which he professed to act, and under which he claimed the 
 privilege of voting? If he was not ignorant of the law, and that he 
 cannot be heard to allege, then he voted knowingly, and, by necessary 
 inference, fraudulently. 
 
 An indictment for extortion charges that the defendant received 
 the fee "unlawfully, corruptly, deceitfully, and extorsively." This 
 averment the state must prove. It is done by showing that the de- 
 fendant received what the law does not allow him to take ; for the pre- 
 sumption is "he knew the law upon the subject of fees to be taken 
 by himself," and the inference from such knowledge is that he acted 
 "corruptly and deceitfully" (words quite as strong as knowingly and
 
 134 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 fraudulently), unless it is shown that he did so by some inadvertence 
 or mistake in calculation. He cannot excuse himself for taking more 
 than the legal fee by saying that he was misled by the advice of an 
 attorney. If such, or like, excuses were admitted, it would hardly 
 ever be possible to convict. He might always contrive to ground 
 his conduct upon misapprehension or improper advice. State v. Dick- 
 ens, 2 N. C. 406. It would be a different question if the defendant 
 had stated the facts to the judges of the election, and they had decided 
 in favor of his right to vote; for their decision would rebut the pre- 
 sumption of knowledge on his part in a manner contemplated by law. 
 
 The case was ably argued for the defendant. It was insisted that 
 it was necessary for the state to aver and prove that the defendant 
 voted knowingly and fraudulently. That position is admitted. The 
 reply is the averment was made and was proved ; for, proof being 
 made that he voted when he was not entitled to vote, the presumption 
 is that he knew the law, and fraud is the necessary inference, as 
 corruption and deceit were in the case above cited. It cannot be 
 contended that, to fix him with knowledge, the state must show that 
 some one read and explained the law to him ; or, to fix him with 
 fraud, that it must be proven he had been bribed. If so, the statute 
 is a dead letter. Our attention was called to the fact that the act of 
 1844 (Laws 1844—15, p. 67, c. 43), making the offense indictable, 
 uses the words, "knowingly and fraudulently," which words are not 
 used in the act of 1777, imposing a penalty. To incur the penalty 
 under the act of 1777, the voting must be unlawful, and it must be 
 done knowingly and fraudulently, in the sense above explained. If 
 one, having a deed for 50 acres of land, votes in the Senate, and it 
 turns out that the deed only contains 49 acres, the penalty is not in- 
 curred, unless he knew the fact at the time he voted. So, if one votes 
 for a constable, and it turns out that the dividing line includes him in 
 another company, there is not in either case that criminal intent which 
 is a necessary ingredient of the offense, whether it be punished by 
 a penalty or by indictment. The act of 1814 expresses in so many 
 words what the law would have implied. It is a strained inference 
 that by so doing the Legislature intended to make the case of illegal 
 voting ;ui "exception," and to take it out of the rule "ignorantia legis," 
 a rule which has always been acted upon in our law, and in the laws 
 of every nation of which we have any knowledge, and without which, 
 in fact, the law cannot be administered. The inference soughl to be 
 made re ults in thii : The Legislature did not intend the act of L844 
 to be carried into effect. It was intended to be "brutum Eulmen." 
 No reason has been sug ed for making an exception in this case. 
 The only additional qualification to that of a voter for a member of 
 the House of Commons is a residence of six months in the captain's 
 company. 
 
 This is not complicated or difficult to be understood. Why make 
 the exception, and offer a reward for ignorance in this particular case?
 
 Sec. 1) IGNORANCE OR MISTAKE OF LAW. 135 
 
 Such a construction cannot be admitted, unless the lawmakers had 
 declared their intention by positive enactment. 
 
 Per Curiam. There is no error in the court below, and the same 
 must be so certified. 2 
 
 CUTTER v. STATE. 
 
 (Supreme Court of New Jersey, 1873. 3G N. J. Law, 125.) 
 
 The opinion of the court was delivered by Beaseey, C. J. 3 The 
 defendant was indicted for extortion in taking fees to which he was 
 not entitled, on a criminal complaint before him as a justice of the 
 peace. The defense which he set up, and which was overruled, was 
 that he had taken these moneys innocently, and under a belief that 
 by force of the statute he had a right to exact them. 
 
 This subject is regulated by the twenty-eighth section of the act 
 for the punishment of crimes. Nix. Dig. 197. This clause declares 
 that no justice or other officer of this state shall receive or take any 
 fee or reward to execute and do his duty and office but such as is or 
 shall be allowed by the laws of this state, and that "if any justice, 
 etc., shall receive or take, by color of his office any fee or reward 
 whatsoever, not allowed by the laws of this state, for doing his office, 
 and be thereof convicted, he shall be punished," etc. 
 
 If the magistrate received the fees in question without any corrupt 
 intent, and under the conviction that they were lawfully his due, I 
 do not think such an act was a crime by force of the statute above 
 cited. 
 
 But it is argued on the part of the prosecution that as the fees 
 to which the justice was entitled are fixed by law, and as he cannot 
 set up as an excuse for his conduct his ignorance of the law, his guilty 
 knowledge is undeniable. The argument goes upon the legal maxim, 
 "Ignorantia legis neminem excusat." But this rule, in its application 
 to the law of crimes, is subject, as it is sometimes in respect to civil 
 rights, to certain important exceptions. Where the act done is malum 
 in se, or where the law which has been infringed was settled and 
 plain, the maxim, in its rigor, will be applied; but where the law 
 is not settled, or is obscure, and where the guilty intention, being a h 
 necessary constituent of the particular offense, is dependent on a // 
 
 2 Accord : Illegal voting. McGuire v. State, 7 Humph. (Term.) 54 (1846) ; 
 keeping gaming house, Winehart v. State, 6 Ind. 30 (1854); statutory larceny, 
 State v. Welch, 73 Mo. 284, 30 Am. Rep. 515 (1880) ; bigamy. People v. 'Weed, 
 
 29 Hun (N. Y.) 628 (18S3) ; murder, Weston v. Commonwealth, 111 Pa. 251, 2 
 Atl. 191 (18S6) ; opening grave. State v. McLean. 121 N. C 589, 28 S. E. 140. 42 
 L. R. A. 721 (1897) ; unlawful discrimination, State v. Railway, 122 N. C. 1052, 
 
 30 S. E. 133, 41 L. R. A. 246 (1898) ; compounding crime. State v. Carver. 09 N. 
 H. 216, 39 Atl. 973 (1897); false imprisonment, Begley v. Commonwealth (Ky.) 
 60 S. W. 847 (1901). Cf. Commonwealth v. Bradford, 9 Mete (Mass.) 268 
 (1S45). 
 
 s Part of the opinion relating to another point is omitted. 

 
 136 INTENT AS AFFECTED BY CONDITIONS. (Ch 5 
 
 , \ knowledge of the law, this rule, if enforced, would be misapplied. 
 To give it any force in such instances would be to turn it aside from 
 its rational and original purpose, and to convert it into an instru- 
 ment of injustice. The judgments of the courts have confined it to 
 its proper sphere. Whenever a special mental condition constitutes 
 a part of the offense charged, and such condition depends on the 
 question whether or not the culprit had certain knowledge with respect 
 to matters of law, in every such case it has been declared that the 
 subject of the existence of such knowledge is open to inquiry as a 
 fact to be found by the jury. This doctrine has often been applied 
 to the offense of larceny. The criminal intent, which is an essential 
 part of that crime, involves a knowledge that the property taken be- 
 longs to another ; but even when all the facts are known to the ac- 
 cused, and so the right to the property is a mere question of law, 
 still he will make good his defense if he can show in a satisfactory 
 manner that, being under a misapprehension as to his legal rights, 
 he honestly believed the articles in question to be his own. Rex v. 
 Hall, 3 Car. & P. 409 ; Reg. v. Reed, Car. & M. 306. 
 
 The adjudications show many other applications of the same prin- 
 ciple, and the facts of some of such cases were not substantially dis- 
 similar from those embraced in the present inquiry. In the case of 
 People v. Whaley, 6 Cow. (N. Y.) 661, a justice of the peace had 
 been indicted for taking illegal fees, and the court held that the 
 motives of the defendant, whether they showed corruption or that 
 he acted through a mistake of the law, were a proper question for a 
 jury. The case of Commonwealth v. Shed, 1 Mass. 228, was put 
 before the jury on the same ground. This was likewise the ground 
 of decision in the case of Commonwealth v. Bradford, 9 Mete. (Mass.) 
 268 ; the charge being for illegal voting, and it being declared that 
 evidence that the defendant had consulted counsel as to his right of 
 suffrage and had acted on the advice thus obtained was admissible 
 in his favor. This evidence was only important to show that the 
 defendant, in infringing the statute, had done so in ignorance of the 
 rule of law upon the subject. Many other cases resting on the same 
 basis might be cited ; but the foregoing are sufficient to mark clearly 
 the boundaries delineated by the courts to the general rule that igno- 
 rance of law is no defense when the mandates of a statute have been 
 disregarded or a crime has been perpetrated. That the present case 
 falls within the exceptions to this general rule appears to me to be 
 plain. There can he no doubl thai an opinion very generally pre- 
 vailed that magistrates had the right to exact the fees which were 
 received by this defendant and that they could be legally taken under 
 similar circumstan< The prevalence of such an opinion could 
 
 not, it is true, legalize the act of taking such fees; but its existence 
 might tend to show that the defendant, when he did the act with which 
 he charged, was not conscious of doing anything wrong. 
 
 Jf a justice of the peace, being called upon to construe a statute
 
 SCC. 2) IGNORANCE OR MISTAKE OF FACT. 137 
 
 with respect to the fees coming to himself, should, exercising due 
 care, form an honest judgment as to his dues, and should act upon 
 such judgment, it would seem palpably unjust, and therefore incon- 
 sistent with the ordinary grounds of judicial action, to hold such 
 conduct criminal if it should happen that a higher tribunal should 
 dissent from the view thus taken, and should decide that the stat- 
 ute was not susceptible of the interpretation put upon it. I think 
 the defendant had the right in this case to prove to the jury that the 
 moneys, which it is charged he took extorsively, were received by 
 him under a mistake as to his legal rights, and that, as such evidence, 
 being offered by him, was overruled, the judgment on that account 
 must be reversed. 2 
 
 SECTION 2.— IGNORANCE OR MISTAKE OF FACT. 
 
 
 In the case of Sir William Hawksworth,- related by Baker in his 
 Chronicle of the Time of Edward IV, p. 223 (sub anno, 1471), he be- 
 ing weary of his life and willing to be rid of it by another's hand, 
 blamed his parker for suffering his deer to be destroyed, and com- 
 manded him that he should shoot the next man that he met in the park 
 that would not stand or speak. The knight himself came in the night 
 into the park, and, being met by the keeper, refused to stand or speak. 
 The keeper shot and killed him, not knowing him to be his master. 
 This seems to be no felony, but excusable by the statute of malefactors 
 in parcis, for the keeper was in no fault, but his master; but, had he 
 known him, it had been murder. 1 Hale, P. C. 40. 
 
 state v. Mcdonald. 
 
 (St. Louis Court of Appeals, 1879. 7 Mo. App. 510.) 
 
 Lewis, P. J., delivered the opinion of the court. 3 
 The defendant, a car driver and conductor on the Lindell Railway, 
 was convicted in the court of criminal correction of an assault and 
 battery committed upon the person of Oscar Wielns. The only ques- 
 tion raised by the appeal is whether, when a passenger on a street 
 
 2 Accord: Perjury, U. S. v. Conner, 3 McLean (U. S.) 573, Fed. Cas. No. 
 14.847 (1845); malicious mischief, Goforth v. State, 8 Humph. (Tenn.) 37 
 (1847) ; trespass, State v. Hause, 71 N. C. 51S (1874) ; conspiracy, People v. 
 Powell, 63 N. Y. 88 (1875) ; larceny, People v. Husband, 36 Mich. 306 (1877) ; 
 extortion, Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44 (1SS0). See, also, Reg. 
 v. Allday, 8 Car. & P. 136 (1837). 
 
 s Part of the opinion is omitted. 

 
 138 INTENT AS AFFECTED BT CONDITIONS. (Cll. 5 
 
 car has in fact paid his fare, the conductor is justified in forcibly 
 ejecting him from the car because he, the conductor, honestly be- 
 lieves that the passenger has not paid his fare, but persistently refuses 
 so to do. 
 
 Crime ca nnot exist without. a criminal intent. A man at midnight 
 discovers an intruder on his premises, under circumstances which fur- 
 nish reasonable cause to apprehend that a felony is in progress, or about 
 to be perpetrated. He kills the supposed burglar, in the honest belief 
 that nothing less will save his own life or property. It turns out that 
 the intruder was innocent of any criminal purpose, yet his slayer has 
 committed no crime, either in morals or in law, deserving punishment. 
 The criminal intent was wanting. A person passes counterfeit money, 
 being ignorant of its character and honestly believing it to be genuine. 
 The one who receives it may recover for the wrong done him, not- 
 withstanding the innocent mistake of the passer; and yet an indict- 
 ment against the passer of the money would fail, because he was guil- 
 ty of no criminal intent. In the case before us, according to the facts 
 stated, the defendant honestly believed that he was simply discharg- 
 ing his duty in putting off the passenger who refused to pay his fare, 
 and therefore in so doing he committed no crime. The court erred 
 in giving instructions in support of a contrary view, and in refusing 
 instructions prayed for by the defendant which were in harmony with 
 the principles herein declared. 
 
 The judgment is reversed, and the cause remanded. All the Judges 
 concur. 
 
 REGINA v. MACHEKEQUONABE. 
 
 (High Court of Justice for Ontario, 1896. 28 Ont. 309.) 
 
 This was a case reserved under the Criminal Code of 1892, amend- 
 ing Act 58 & 59 Vict. c. 40, (D), as to whether the prisoner was prop- 
 erly convicted of manslaughter. 
 
 The trial took place at Rat Portage on the 3d of December, 1896, 
 before Rose, J., and a jury. 
 
 It appeared from the evidence that the prisoner was a member of a 
 tribe of pagan Indians, who believed in the existence of an evil spirit 
 clothed in human flesh, or in human form, called a "Wendigo," which 
 would eat a human being. 
 
 That it was reported that a Wendigo had been seen, and it was sup- 
 d was in the neighborhood of their camp, desiring to do them 
 harm. 
 
 That among oilier precautions to protect themselves, guards and 
 sentries, the prisoner being one, were placed out in pairs armed with 
 firearms (the prisoner having a rifle) ; that the prisoner saw what 
 appeared to be a tall human being running in the distance, which he 
 suppo ed was the Wendigo; that he and another Indian gave chase
 
 Sec. 2) IGNORANCE OR MISTAKE OF FACT. 139 
 
 and after challenging three times and receiving no answer fired and 
 shot the object, when it was discovered to be his own foster father, 
 who died soon afterward. 
 
 The jury found affirmative answers to the following questions: 
 "Are you satisfied the prisoner did kill the Indian?" "Did the pris- 
 oner believe the object he shot at to be a Wendigo or spirit?" "Did 
 he believe the spirit to be embodied in human flesh?" "Was it the 
 prisoner's belief that the Wendigo could be killed by a bullet shot 
 from a rifle?" "Was the prisoner sane, apart from the delusion or 
 belief in the existence of a Wendigo?" 
 
 The learned trial judge then proceeded with his charge as follows: 
 
 "Assuming these facts to be found by you, I think I must direct 
 you as a matter of law that there is no justification here for the killing; 
 and culpable homicide without justification is manslaughter, so that, 
 unless you can suggest to yourselves something stated in the evidence 
 or drawn from the evidence to warrant a different conclusion, I think 
 it will be your duty to return a verdict of manslaughter. You may 
 confer among yourselves, if you please, and if you take that view I 
 will reserve a case for consideration by the Court of Appeal as to 
 whether he was properly convicted upon this evidence." 
 
 The jury found the prisoner guilty of manslaughter, recommend- 
 ing him to mercy, and the learned judge reserved a case for considera- 
 tion whether upon the findings of the jury in answer to the questions 
 he had submitted, and upon his direction to them, and upon the evi- 
 dence, the prisoner was properly found guilty of manslaughter. 
 
 The case was argued on February 8, 1897, before a divisional 
 court composed of Armour, C. J., and Faixonbridge, and Street, JJ. 
 J. K. Kerr, Q. C, for the prisoner. 1 
 
 John Cartwright, O. C, Deputy Attorney General, was not called on. 
 
 The judgment of the court was delivered by Armour, C. J. 
 
 Upon the case reserved, if there was evidence upon which the jury 
 could find the prisoner guilty of manslaughter, it is not open to us 
 to reverse that finding, and the question we have to decide is whether 
 there was such evidence. 
 
 We think there was, and therefore do not see how we can say that 
 the prisoner was not properly convicted of manslaughter. 
 
 STATE v. NASH. 
 (Supreme Court of North Carolina, 1883. 88 N. C. 618.) 
 
 Indictment for assault and battery, tried at the Fall term, 1882, of 
 Richmond superior court, before Gilmer, J. 
 
 The defendant was put upon the stand as a witness in his own 
 behalf, admitted that he fired the gun at the crowd, and proposed to 
 
 i The argument of counsel for the defendant is omitted.
 
 140 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 prove that, before he fired, his child, who was sleeping near a win- 
 dow in the house, through which the noise of the bells and horns 
 and firing was heard and the flash of the firing seen, rose up and ran 
 to the witness with blood on her face (caused, as he afterwards 
 learned, but did not then know, by her running against the end of 
 a table), and under the impulse of the moment, believing that she 
 had been shot, he got his gun and went to the door, and, seeing 
 the flash of pistols, fired, as he supposed, by the retreating crowd, 
 fired his gun at and into the crowd. This evidence was objected to 
 by the state and excluded by the court, and the defendant excepted. 
 
 The court instructed the jury that the defendant had not shown 
 justification for the shooting. Verdict of guilty; judgment; appeal 
 by the defendant. 1 
 
 Ashe, J. The question presented by the record is, was there error 
 in the refusal of the judge to receive the evidence offered by the de- 
 fendant? We are of the opinion there was error in rejecting so much 
 of the proposed testimony as tended to show, on the part of the de- 
 fendant, a reasonable ground of belief that the trespassers upon his 
 premises had fired into his house and wounded his child. 
 
 It may be, as testified by the prosecutor, that the band of young 
 men who went to the defendant's house on the night in question only 
 intended innocent amusement ; but there is one unusual and rather ex- 
 traordinary feature in the transaction — that the party intending a 
 mere serenade should, on such an occasion, carry guns and pistols. 
 They are certainly very unusual instruments of music in the hands 
 even of a calithumpian band. 
 
 They entered the inclosure, 20 in number, and marched round the 
 house, blowing horns, ringing bells, and firing guns and pistols, which 
 must have greatly frightened the family and the defendant himself, 
 unless he is a man of more than ordinary courage. But, whether awed 
 or not by such a display of numbers and lawlessness, yielding to the 
 dictates of prudence, he submitted to the humiliating indignity and 
 remained within doors until his little daughter, as he proposed to 
 show, ran to him with her face bleeding; and believing, as was 
 natural under the circumstances, that she had been shot, he seized 
 his gun and went to the door, saw the flash of firearms, shot into the 
 crowd, and wounded the prosecutor. We must suppose it was all 
 the work of an instant. Did the defendant, under these circumstances, 
 have reasonable ground to believe that his daughter had been shot, 
 and the a ault upon him and his house was continuing? If he had, 
 then he ought to have been acquitted. 
 
 We know this has been a much mooted question, but upon an in- 
 igation of the authorities our conclusion is that a reasonable be- 
 lief that a felony is in the act of being committed on one will excuse 
 the killing of the supposed assailant, though no felony was in fact 
 
 i Tin- statement <>r facta is abridgi 1
 
 Sec. 2) IGNORANCE OR MISTAKE OF FACT. 141 
 
 intended ; and whatever will excuse homicide will, of course, excuse 
 assault and battery. 
 
 In State v. Scott, 26 N. C. 409, 42 Am. Dec. 148, the court says: 
 "In consultation it seemed to us at one time that the case might prop- 
 erly have been left to the jury, favorably to the prisoner, on the prin- 
 ciple of Levet's Case, Cro. Car. 538, 1 Hale, 474, which is that if the 
 prisoner had reasonable ground for believing that the deceased in- 
 tended to kill him, and under that belief slew him, it would be ex- 
 cusable, or, at most, only manslaughter, though in truth the deceased 
 had no such design at the time." It is to be noted that Levet was 
 acquitted. But the court did not give the prisoner, in Scott's Case, 
 the benefit of the principle, for the reason that no such instruction 
 had been asked in the court below ; the court concluding that the 
 prisoner would have requested the instruction, if he had acted upon 
 such belief, and there were, besides, other circumstances in the case 
 which prevented the application of the principle. But it is clearly 
 to be deduced from the opinion of Chief Justice Ruffin, who spoke 
 for the court, that in a proper case the principle might be invoked 
 to excuse a defendant. See, also, Patterson v. People, 46 Barb. (N. 
 Y.) 627. 
 
 The same doctrine was enunciated by Parker, J., afterwards Chief 
 Justice of the Supreme Court of Massachusetts, in the famous case 
 of Commonwealth v. Selfridge, Self. Trial, 100, and the principle 
 is thus illustrated : "A., in the peaceful pursuit of his affairs, sees 
 B. walking towards him with an outstretched arm and a pistol in 
 his hand, and using violent menaces against his life as he advances. 
 Having approached near enough in the same attitude, A., who has 
 a club in his hand, strikes B. over the head before or at the same 
 instant the pistol is fired, and of the wound B. dies. It turned out 
 that the pistol was in fact loaded with powder only, and that the real 
 design of B. was only to terrify A." The judge inquired: "Will 
 any reasonable man say that A. is more criminal that he would have 
 been if there had been a ball in the pistol?" 2 Whar. Crim. Law, § 
 1026 (g), and note; Whar. Law of Homicide, 215 et seq. 
 
 But it may be objected that the defendant acted too rashly. Be- 
 fore he resorted to the use of his gun, he should have taken the pre- 
 caution to ascertain the fact whether his child had been actually shot. 
 But that doctrine is inconsistent with the principle we have announced. 
 If the defendant had reason to believe and did believe in the danger, 
 he had the right to act as though the danger really existed and was 
 imminent. Taking, then, the fact to be that the trespassers had fired 
 into the defendant's house and shot his child, and the firing continued, 
 there was no time for delay. The occasion required prompt action. 
 The next shot might strike him or some other member of his family. 
 Under these circumstances the law would justify the defendant in 
 firing upon his assailants in defense of himself and his family. 
 
 But, as we have said, the grounds of belief must be reasonable.
 
 142 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 The defendant must judge, at the time, of the ground of his appre- 
 hension, and he must judge at his peril; for it is the province of the 
 jury on the trial to determine the reasonable ground of his belief. 
 And here the error is in the court's refusing to receive the proposed 
 evidence, and submitting that question to the consideration of the 
 jury. A venire de novo must be awarded. 2 
 
 Smith, C. J. (dissenting). I am unable to concur with the other 
 members of the court in the conclusion reached that the testimony 
 of the defendant in explanation of his conduct, if admitted and be- 
 lieved, would be a defense to the charge, or have any other legal 
 effect than to mitigate his offense; and hence, as immaterial upon 
 the issue and tending to mislead, there is no error in rejecting it. 
 
 The facts in connection with this proposed statement are sum- 
 marily as follows : A boisterous and unruly crowd, in what seems 
 to have been a frolic, enter the defendant's premises in the early 
 night with bells, horns, and firearms, by the noise of which as they 
 pass round his dwelling himself and his family are greatly annoyed 
 and their peace disturbed. As they are about to leave, his little 
 frightened daughter runs up to him with blood upon her face, caused 
 by her striking against a table, but which he then supposed to pro- 
 ceed from a shot wound. Acting upon the impulse produced by 
 this misconception, and without stopping to make inquiry as to the 
 cause or extent of the inquiry [injury?], he seizes his gun, loaded with 
 shot of large size, hastens to the door and out into the porch, and, see- 
 ing the flash of the gun, fires into the retreating body, then near the 
 outer gate, some 35 yards distant, without a word of warning or 
 remonstrance, and wounds one of the number in the leg. 
 
 This was, in my opinion, a hasty and unauthorized act in the use 
 of a deadly weapon, not in defense of himself or family or promises, 
 but the offspring of a spirit of retaliation for what he erroneously 
 supposed to have been done, and whose error could have at once 
 i corrected. If death had ensued, the circumstances would not 
 have excused the homicide, and, as it was not fatal, it cannot be less 
 than an assault. 
 
 Human life is too safely guarded by law to allow it to be put in 
 peril upon such provocation, and. however much it may palliate tbe 
 defendant's impulse and the rash act in which it resulted, it cannot, 
 in my opinion, excuse his use of a deadly instrument in so reckless 
 a manner. 
 
 I'm: Curiam. Venire de novo. 
 
 Accord: Reg. \ Rose, 15 Cox, C. C. 540 (\^n. Cf. Isham v. State, ante, 
 
 p. SI ; St:it«- v. Ix.wns. Ill Mo. 10, 3 S. W. 210 (1886).
 
 Sec. 3) INFANCY. 
 
 
 
 14.3 
 
 
 
 
 SECTION 3.-INFANCY. (/ 
 
 Item. — A girl of thirteen years of age was burnt because while 
 she was servant to a woman she killed her mistress ; and it was 
 found to be so and adjudged treason. And it was said that by the 
 old law no one under age was hung, or suffered judgment of life or 
 limb. But Spigurnel found that an infant of ten years of age killed 
 his companion and concealed him ; and he caused him to be hung, be- 
 cause by the concealment he showed that he knew how to distinguish 
 between evil and good. And so malice makes up for age. Year Book, 
 12 Edward III, 626. 
 
 GODFREY v. STATE. 
 (Supreme Court of Alabama, 1858. 31 Ala. 323.) 
 
 Walker, J. 1 The single point to be considered in this case is 
 whether the charge of the court below to the jury was correct. An 
 analysis of that charge shows that the jury were strictly instructed 
 that the defendant, being between seven and fourteen years of age, 
 was prima facie incapable of committing crime; that, to overturn the 
 intendment in favor of his incapacity to commit crime, the jury must 
 be convinced from the evidence beyond a reasonable doubt, after al- 
 lowing due consideration to the fact that the accused was a negro and 
 a slave, that he knew fully the nature of the act done and its conse- 
 quences; and that he showed pJainly intelligent design and malice 
 in the execution of the act. This charge, after an anxious and care- 
 ful examination of it, we cannot pronounce erroneous. 
 
 An infant, above seven, but under fourteen, years of age, is pre- 
 sumed not to have such knowledge and discretion as would make him 
 accountable for a felony committed during that period. But, if that 
 presumption is met by evidence clearly proving the existence of that 
 knowledge and discretion deemed requisite to a legal accountability, the 
 reason for allowing an immunity from punishment ceases, and with 
 it the rule which grants such immunity ceases. There are many cases 
 where children between those ages, being shown to have been cogni- 
 zant of the criminal nature of the act done, have been punished un- 
 der the criminal law. A girl, thirteen years of age, was executed for 
 killing her mistress. Two boys, one nine, and the other ten, years 
 of age, were convicted of murder, because one of them hid himself, 
 and the other hid the dead body, thus manifesting as was supposed. 
 a consciousness of guilt and a discretion to discern between good and 
 
 i The opinion only is printed.
 
 144 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 evil. A boy of eight years of age, who had malice, revenge, and cun- 
 ning, was hanged for firing two barns. A boy ten years old, who 
 showed a mischievous discretion, was convicted of murdering his bed- 
 fellow. 4 Bl. Com. 23, 24. 
 
 In the case of Rex v. Owen, 2 Car. & P. 236, it was referred to the 
 jury to determine whether the act of a girl ten years old, alleged to 
 constitute a larceny, was known by her to be wrong when it was done ; 
 and upon that question she was acquitted. It is said in Hale's Pleas 
 of the Crown, p. 22, that one between the ages of seven and fourteen 
 might be convicted of a capital offense, "if it appeared by strong and 
 pregnant evidence and circumstances that he was perfectly conscious 
 of the nature and malignity of the crime." In an American case the 
 same principle is thus stated: "If it shall appear by strong and ir- 
 resistible evidence that he had sufficient discernment to distinguish 
 good from evil, to comprehend the nature and consequences of his 
 acts, he may be convicted, and have judgment of death." State v. 
 Aaron, 4 N. J. Law, 231, 7 Am. Dec. 592. In that case a negro boy, 
 who was a slave, of eleven years, was convicted of murder ; but a new 
 trial was granted on account of an erroneous ruling as to the compe- 
 tency of a witness, and it does not appear what farther was done in 
 the case. 
 
 In the case of State v. Guild, 10 N. J. Law, 163, 18 Am. Dec. 404, 
 a negro slave, of less than twelve years, was convicted of murder ; and 
 the report of the case informs us that the defendant was executed. 
 In that case the court dissenting from the cautious statement of the 
 law found in 1 Hale's Pleas of the Crown, p. 27, permitted a convic- 
 tion upon confessions. In this case, although a confession was given 
 in evidence, the facts proved established the guilt of the accused so 
 clearly that it is fairly inferable that no importance was attached to 
 it by the court or jury, and its effect is not noticed in the charge. The 
 question whether a conviction could be had upon confessions does not 
 arise, and we do not commit ourselves to the doctrine of the decision 
 last above cited upon that point. 
 
 All the authorities concur in maintaining the correctness of the 
 
 propositions of law involved in the charge. Bishop on Criminal Law, 
 
 . 285; 1 Archbold's Crim. PI. 3, 4, 5, and notes; 1 Rus- 
 
 11 on Crimes, 3, 4, 5; Roscoe's Crim. Ev. 942, 944; Wharton's Am. 
 Crim. Law, 51; 1 Wheeler's Crim. Cases, 231-234. Reason, human- 
 ity, and the law alike required that the court should, in its charge, 
 throw around the jury every guard and restriction necessary to pre- 
 nt an improper conviction in such a case. This has been carefully 
 done by tli'- court in this case, and we are bound to pronounce a full 
 approval of the charge. 
 
 The judgment of tin- city court is affirmed, and its sentence must be 
 cuted. 1 
 
 cord! When the offense charged la a mlsde anor: Vagrancy, <'»m- 
 
 monwealth v. McKeagy, i Aahm. (Pa.) 248 (1828); battery, State v. Goin,
 
 . 
 
 - 
 
 Sec. 4) INSANITY. 145 
 
 SECTION 4.— INSANITY. 
 
 
 
 Nota reader, every act which a man non compos doth either con- 
 cerns his life, his lands, or his goods. * * * As to his life, the 
 law of England is that he shall not lose his life for felony or murder, 
 because the punishment of a felon is so grievous. * * * 
 
 2. No felony or murder can be committed without a felonious in- 
 tent and purpose. * * * Also, for the same reason, non compos 
 mentis cannot commit petit treason, as if a woman non compos mentis 
 kills her husband, as appears 12 Hen. Ill, "Forfeiture," 33. But in 
 some cases non compos mentis may commit high treason, as if he kills, 
 or offers to kill, the king, it is high treason, for the king est caput et 
 salus reipublicse, et a capite bona valetudo transit in omnes ; and for 
 this reason their persons are so sacred that none can offer them any 
 violence, but he is reus criminis laesae majestatis, et pereat unus ne 
 pereant omnes. And it must be known that there are four manners 
 of non compos mentis: (1) Idiot or fool natural; (2) he who was 
 of good and sound memory, and by the visitation of God has lost it; 
 (3) lunaticus, qui gaudet lucidis intervallis, and sometimes is of good 
 and sound memory, and sometimes non compos mentis; (4) by his 
 own act, as a drunkard. 
 
 Beverley's Case (1603) 4 Coke, p. 124. 
 
 McNAGHTEN'S CASE. 
 
 (House of Lords, 1843, 10 Clark & F. 200.) 
 
 Daniel McNaghten having been tried in the Central Criminal Court 
 for the murder of Edward Drummond, the jury returned a verdict 
 "not guilty" on the ground of insanity. 
 
 This verdict and the question of the nature and extent of the un- 
 soundness of mind which would excuse the commission of a felony 
 of this sort having been made the subject of debate in the House of 
 Lords, it_was determined to take the opinion of the judges on the 
 law governing suclT^cases; Accordingly, on the 26th of May all the 
 judges attended their lordships, but no questions were then put. 
 
 9 Humph. (Teim.) 175 (1848) ; illegal sale of liquor, Commonwealth v. Mead, 
 92 Mass. 39S (1865). 
 
 "No person shall in any case be convicted of any offense committed before 
 he was of the age of nine years ; nor of any offense committed between the 
 years of nine and thirteen unless it shall appear by proof that he had dis- 
 cretion to understand the nature and illegality of the act constituting the 
 offense." Pen. Code Tex. art. 34. 
 
 Section 283 of the Criminal Code of Illinois fixes the age at which crim- 
 inal responsibility attaches at ten years. 
 Mik.Cb.L.— 10
 
 116 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 On the 19th of June the judges again attended the House of Lords, 
 when (no argument having been had) the following questions of law 
 were propounded to them. 1 
 
 Lord Chief Justice Tindall. The first question proposed by your 
 lordships is this: "What is the law respecting alleged crimes com- 
 mitted by persons afflicted with insane delusion in respect of one or 
 more particular subjects or persons; as, for instance, where at the 
 time of the commission of the alleged crime the accused knew he was 
 acting contrary to law, but did the act complained of with a view, 
 under the influence of insane delusion, of redressing or revenging 
 some supposed grievance or injury, or of producing some supposed 
 public benefit?" 
 
 In answer to which question, assuming that your lordships' in- 
 quiries are confined to those persons who labor under such partial 
 delusions only, and are not in other respects insane, we are of opin- 
 ion that, notwithstanding the party accused did the act complained 
 of with a view, under the influence of insane delusion, of redressing 
 or avenging some supposed grievance or injury, or of producing some 
 public benefit, he is nevertheless punishable according to the nature 
 of the crime committed, if he knew at the time of committing such 
 crime that he was acting contrary to law, by which expression we 
 understand your lordships to mean the law of the land. 
 
 Your lordships are pleased to inquire of us, secondly: "What 
 are the proper questions to be submitted to the jury, where a per- 
 son alleged to be afflicted with insane delusion respecting one or 
 more particular subjects or persons is charged with the commission 
 of a crime (murder, for example), and insanity is set up as a de- 
 fense?" And, thirdly: "In what terms ought the question to be left 
 to the jury as to the prisoner's state of mind at the time when the 
 act was committed?" And as these two questions appear to us to be 
 more conveniently answered together, we have to submit our opin- 
 ion to be that the jurors ought to be told in all cases that every man 
 is to be presumed to be sane, and to possess a sufficient degree of 
 reason to be responsible for his crimes, until the contrary be proved 
 to their satisfaction, and that to establish a defense on the ground 
 of insanity it must be clearly proved that at the time of the commit- 
 ting of the act the party accused was laboring under such a defect 
 of reason, from disease of the mind, as not to know the nature and 
 quality of the act he was doing, or, if he did know it, that he did not 
 know he was doing what was wrong. The mode of putting the latter 
 part of the que tioxi to the jury on these occasions has generally been 
 whether the accused at the time of doing the act knew the difference 
 between righl and wrong, which mode, though rarely, if ever, lead- 
 ing to any mistake with ihc jury, is not, as we conceive, so accurate 
 wiien put generally and in the abstract, as when put with reference to 
 
 » The questions appear in tin' opinion.
 
 Sec. 4) INSANITY. 147 
 
 the party's knowledge of right and wrong in respect to the very act 
 with which he is charged. If the question were to be put as to the 
 knowledge of the accused solely and exclusively with reference to 
 the law of the land, it might tend to confound the jury, by inducing 
 them to believe that an actual knowledge of the law of the land was 
 essential in order to lead to a conviction; whereas, the law is admin- 
 istered upon the principle that every one must be taken conclusively 
 to know it, without proof that he does know it. If the accused was 
 conscious that the act was one which he ought not to do, and if that 
 act was at the same time contrary to the law of the land, he is pun- 
 ishable; and the usual course, therefore, has been to leave the ques- 
 tion to the jury whether the party accused had a sufficient degree 
 of reason to know that he was doing an act that was wrong; and 
 this course we think is correct, accompanied with such observations 
 and explanations as the circumstances of each particular case may 
 require. 
 
 The fourth question which your lordships have proposed to us is 
 this : "If a person, under an insane delusion as to existing facts, com- 
 mits an offense in consequence thereof, is he thereby excused?" To 
 which question the answer must, of course, depend on the nature of 
 the delusion ; but, making the same assumption as we did before, 
 namely, that he labors under such partial delusion only, and is not 
 in other respects insane, we think he must be considered in the-same 
 situation as_to_responsibilify as jf_the facts with respect to_jwhjch the 
 delusion exists were real. Fox_ex^mple,~if,^m{der the influence of 
 his delusion, he supposes another man to be in_ihe act of atte mpting 
 to take away hisjife, andhe kills thjaJ^jnaji^a^J^supposej^n ..self- 
 defense, he would he ^x^rnptlrom punishment. IT his delusion was 
 that the deceased had inflicte(T~a~serious injury to his character and 
 fortune, and he killed him in revenge for such supposed injury, he 
 would be liable to punishment. 2 
 
 The question lastly proposed by your lordships is: "Can a medical 
 man, conversant with the disease of insanity, who never saw the 
 prisoner previously to the trial, but who was present during the whole 
 trial and the examination of all the witnesses, be asked his opinion 
 as to the state 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 whether he was laboring under any, and what, delusion at 
 the time?" In answer thereto, we state to your lordships that we 
 think the medical man, under the circumstances supposed, cannot in 
 strictness be asked his opinion in the terms above stated, because 
 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 
 
 2 Accord: As to delusion, State v. Lyons, 113 La. 959, 37 South. 890 (1904).
 
 148 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 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 a matter of right. 3 
 
 HOTEMA v. UNITED STATES. 
 
 (Supreme Court of the United States, 1901. 1S6 U. S. 413, 22 Sup. Ct. 895, 
 
 46 L. Ed. 1225.) 
 
 Mr. Justice Peckham delivered the opinion of the court.* 
 In regard to the subject of delusion the court charged: 
 "There is evidence in this case tending to show that Hotema be- 
 lieved in witches, and that that was taught by the Bible, and had the 
 belief that his people and tribe were being affected by witches, and that 
 the deaths that were occurring in the neighborhood were due to the evil 
 influence of witches, and that the party he slew was a witch. Upon 
 this phase of the case you are instructed that if the evidence shows 
 that the defendant, Hotema, believed in witches, and that it was the 
 result of his investigation and belief as to what the Scriptures taught, 
 and that he acted upon that belief, thinking he had the right to kill 
 the party he is charged with killing, because he thought she was a 
 witch, but at the time he knew it was a violation of human law and he 
 would be punished therefor, in that event it would not be an insane 
 delusion upon the part of Hotema, but would be an erroneous con- 
 clusion, and, being so, would not excuse him from the consequences 
 of his act; and also, if you further believe that he came to the conclu- 
 sion from his investigation and understanding of the Scriptures that 
 this party was a witch, and that the defendant also used spirituous 
 liquors, and these two combined were the cause or causes that led him 
 to commission of the act, and that either or both of these were tin 
 sole inducement that caused him to do the act, he would not be guilt- 
 less and would be responsible therefor. Upon the other hand, I 
 charge yon that if you should find from the evidence in this case that 
 Solomon Hotema, the defendant, believed that there were witches, and 
 that he had a right to kill them, and if you further find that such be- 
 lief was the product of a diseased brain, or if you have a reasonable 
 
 ■■ The proceedings of the (rial court and the opinion of Maule, J., are 
 omitted. 
 
 "An Insane delusion Is never the result of reasoning and reflection, it is not 
 generated by them, and ii cannot be dispelled by them, a man may reason 
 himself, and be reasoned by others, Into absurd opinions, and may be persuad- 
 ed Into Impracticable schemes and rldous resolutions, but he cannot be rea- 
 soned or persuaded Into Insanity or insane delusions. Whenever convictions 
 are founded on <-\ Idence, or comparisons of facts and opinions and arguments, 
 they are not insane delusions," <V\, J., in Qulteau's Case (D. C.) 10 Fed. igi 
 (1882). 
 
 i Part of the opinion is omitted.
 
 Sec. 4) INSANITY. 149 
 
 doubt that such condition of brain existed at the time of the homicide, 
 and that his act was the result of such diseased brain, you will acquit 
 him. 
 
 "In this case you are to determine the following questions: 
 
 "(1) Was the defendant, Hotema, at the time he committed th< 
 homicide charged, laboring under an insane delusion produced by an 
 impaired brain, and did it go to the extent for the time being of con- 
 trolling his will power, reflection, reason, and judgment, and was the 
 homicide committed by reason of such insane delusion? If the proof 
 has shown beyond a reasonable doubt that such was not the case, you 
 will convict the defendant; but if there is a reasonable doubt as to 
 such mental condition you will resolve such doubt in favor of the de- 
 fendant and acquit him. 
 
 "(2) Did Hotema commit the homicide, not laboring under an in- 
 sane delusion, but believing that by teachings of the Bible he had the 
 right to kill the party he did kill because he thought she was a witch, 
 and at the time of such killing he performed the same solely upon- such 
 belief, and was not laboring under an insane delusion? If you be- 
 lieve this state of case existed, and so believe it beyond a reasonable 
 doubt, you will find the defendant guilty as charged in this indict- 
 ment; but if you have a reasonable doubt in regard thereto you will 
 acquit the defendant." 
 
 Upon the condition of mind of defendant regarding witches, the 
 court held that if his belief in witches and his right to kill them were 
 the product of a diseas ed brain he was irresponsible, and if the jury 
 had a reasonable doubt on that question Tt""shourd~acquit. If his belief 
 were not the product of_an insane delusion, but simply an erroneous 
 conclusion of a sane mind, He jvas, as the court charged, responsible. 
 
 The courtrDy - theTportions of the charge above adverted to, direct- 
 ed the attention of the jury to the distinction between a mere errone- 
 ous opinion and an insane delusion, the product of a diseased mind or 
 brain. The subject is somewhat difficult, and the line of distinction 
 not always easily drawn ; but it exists, and we think that in this case 
 the condition of mind which would render the defendant irresponsible 
 was sufficiently and properly indicated by the court in its charge. It 
 assumed that defendant might have formed an erroneous opinion re- 
 garding witches and witchcraft, and yet might not have been insane 
 within the legal definition, and therefore, although possessing such 
 erroneous ideas and acting on them, he might still be responsible 
 criminally for his actions ; and, on the other hand, if his opinion on 
 the subject were the result of insane delusions, and he acted on them, 
 he was irresponsible, and responsibility must be proved beyond a rea- 
 sonable doubt. We think this was all the defendant could require. 
 
 The judgment must be affirmed.
 
 150 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 COMMONWEALTH v. MOSLER. 
 
 (Oyer and Terminer of Philadelphia, 1S4G. 4 Pa. 264.) 
 
 The prisoner was indicted for the murder of Eve Mosler, his wife. 
 The evidence being closed, after argument by Stokes, and Read, At- 
 torney General, for the commonwealth, and Barnes and Barton for 
 the defense, the jury was charged as follows: 1 
 
 Gibson, C. J. The fact of the killing is not denied. Two points of 
 defense have been set up : The first, that of insanity, implying an en- 
 tire deprivation on the part of the prisoner of the power of self-con- 
 trol, and constituting a complete defense to the charge; the second, 
 that of temporary fury induced by adequate provocation, reducing the 
 offense to manslaughter. The first, if sustained, will acquit him alto- 
 gether; the second, while acquitting him of murder, will leave him 
 guilty of manslaughter. 
 
 Insanity is mental or moral ; the latter being sometimes called homi- 
 cidal mania, and properly so. It is my purpose to deliver to you the 
 law on this ground of defense, and not to press upon your considera- 
 tion, at least to an unusual degree, the circumstances of the present 
 case on which the law acts. 
 
 A man may be mad on all subjects; and then, though he may have 
 glimmerings of reason, he is not a responsible agent. This is gener- 
 al insanity; but, if it be not so great in its extent or degree as to blind 
 him to the nature and consequences of his moral duty, it is no defense 
 to an accusation of crime. It must be so great as entirely to destroy 
 his perception of right and wrong; and it is not until that perception 
 is thus destroyed that he ceases to be responsible. It must amount to 
 delusion or hallucination, controlling his will, and making the com- 
 mission of the act, in his apprehension, a duty of overruling necessity. 
 The most apt illustration of the latter is the perverted sense of re- 
 ligious obligation which has caused men sometimes to sacrifice their 
 wives and children. 
 
 Partial insanity is confined to a particular subject, the man being 
 
 me on every other. In that species of madness, it is plain that he is 
 a responsible agent, if he were not instigated by his madness to perpe- 
 trate the act. He continues to be a legitimate subject of punishment, 
 although he may have been laboring under a moral obliquity of per- 
 ception as much so as if he were merely laboring under an obliquity of 
 vision. A man whose mind squints, unless impelled to crime by this 
 very mental obliquity, is as much amenable to punishmenl as one whose 
 eye squints. On tin's point there has been a mistake as melancholy as it 
 is popular. It has been announced by learned doctors that, if a man 
 lias the leasl taint of insanity entering into his mental structure, it 
 dischat him of all responsibility to the laws. To this monstrous 
 
 I I'art of tliis <;is<> Is omitted.
 
 Sec. 4) INSANITY. 151 
 
 error may be traced both the fecundity in homicides, which has dis- 
 honored this country, and the immunity that has attended them. The 
 law is that, whether the insanity be general or partial, the degree of 
 it must be so great as to have controlled the will of its subject, and 
 to have taken from him the freedom of moral action. 
 
 But there is a moral or homicidal insanity, consisting of an ir- 
 resistible inclination to kill, or to commit some other particular offense. 
 There may be an unseen ligament pressing on the mind, drawing it to 
 consequences which it sees, but cannot avoid, and placing it under a 
 coercion which, while its results are clearly perceived, is incapable of 
 resistance. The doctrine which acknowledges this mania is dangerous 
 in its relations, and can be recognized only in the clearest cases. It 
 ought to be shown to have been habitual, or at least to have evinced 
 itself in more than a single instance. It is seldom directed against a 
 particular individual ; but that it may be so is proved by the case of the 
 young woman who was deluded by an irresistible impulse to destroy 
 her child, though aware of the heinous nature of the act. The fre- 
 quency of this constitutional malady is fortunately small, and it is 
 better to confine it within the strictest limits. If juries were to allow 
 it as a general motive operating in cases of this character, its recogni- 
 tion would destroy social order, as well as personal safety. To es- 
 tablish it as a justification in any particular case, it is necessary either 
 to show, by clear proofs, its contemporaneous existence evinced by 
 present circumstances, or the existence of a habitual tendency develop- 
 ed in previous cases, becoming in itself a second nature. Now, what is 
 the evidence of mental insanity in this particular case? 
 
 1. The prisoner's counsel rely on his behavior, appearance, and ex- 
 clamations at the time of the act, or immediately after it. According 
 to one witness, his conduct was that of reckless determination, evincing 
 an unsound mind. "I did it," he repeated three times, it is said, like 
 a raving maniac. But you must recollect that, to commit murder, a 
 man must be wound up to a high pitch of excitement. None but a 
 butcher by trade could go about it with circumspection and coolness. 
 The emotion shown by the prisoner was not extraordinary. He seem- 
 ed to know the consequences of his act — was under no delusion — and 
 was self-possessed enough to find a reason for the act ; that reason be- 
 ing her alleged ill treatment. 
 
 2. It is urged that the want of motive is evidence of insanity. If 
 a motive were to be necessarily proved by the commonwealth, it is 
 shown in this case by the prisoner's own declaration; but a motive 
 need not always be shown. It may be secret ; and to hold every one 
 mad whose acts cannot be accounted for on the ordinary principles of 
 cause and effect would give a general license. The law itself implies 
 malice, where the homicide is accompanied with such circumstances 
 as are the ordinary symptoms of a wicked, depraved and malignant 
 spirit, a heart regardless of social duty, and deliberately bent upon 
 mischief.
 
 
 152 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 3. But it is said that there is intrinsic evidence of insanity from the 
 nature of the act. To the eye of reason every murderer may seem a 
 madman ; but in the eye of the law he is still responsible. 
 
 4. His trip to Pittsburgh and voyage to Germany, it is contended, 
 have not been accounted for, except that he expected to get property 
 in the latter, but did not; and there is an equal obscurity about the 
 motives of his setting fire to his wife's property — her barn, I think it 
 was. But these things do not show any insanity connected with his 
 crime. 
 
 The only circumstance which seems to point to a foregone conclu- 
 sion is the repeated visions he had, after he started for Pittsburgh, of 
 his wife and her granddaughter, whose throat he also attempted to 
 cut, standing at the foot of his bed. This foreboding may tend to 
 show a morbidness of mind in reference to this particular subject; 
 but it is for you to say — keeping in mind the fact that, to constitute a 
 sufficient defense on this ground, there must be an entire destruction 
 of freedom of the will, blinding the prisoner to the nature and conse- 
 quence of his moral duty — whether these circumstances raise a rea- 
 sonable doubt of the prisoner's responsibility. 
 
 After an absence of two hours, the jury returned to their box with 
 a verdict of guilty of murder in the first degree. 2 
 
 STATE v. KNIGHT. 
 
 (Supreme Judicial Court of Maine, 1901. 95 Me. 467, 50 Atl. 276, 55 L. R. 
 
 A. 373.) 
 
 WhiTEHOUSE, J. 3 In this case the respondent was indicted and 
 tried for the murder of Mamie Small. It was not in controversy that 
 the accused, if responsible for his act, was guilty of murder in the 
 first degree; and the only issue raised in defense was the insanity of 
 the defendant. The jury returned a verdict of "guilty of murder 
 in the first degree," and the case comes to this court on exceptions 
 taken by the defendant to the refusal of the presiding justice to give 
 certain instructions, and to the instructions actually given. 
 
 It is not in controversy that the instructions actually given to the 
 jury were in entire harmony with the intellectual test of criminal 
 responsibility approved in State v. Lawrence, 57 Me. 571, and cases 
 there cited, and that the refusal to give the requested instructions was 
 
 a Accord: Holding "Irresistible Impulse" excuses, Green v. State, 64 Ark., 
 523, IS 8. \v. 973 (1898); State v. Johnson, 40 Conn. 138 (1878); state v. 
 Cole, 2 Pennewill (Del.) 844, 45 Atl. 891 (1899); Allams v. State, 123 Ga. 
 500, 51 S. B. 506 (1905); Plake v. State, 121 [nd. 438, 23 N. D. 273, 16 Am. 
 Si Etep 408 (1889) [semble Fonts v. State, 4 G. Greene (Iowa) 500 (1854)]; 
 smith v. Commonwealth, i Duv. (Ky.) 224 (1864); Blackburn v. Stan-. 28 
 Ohio st. 146 (1872); Dejarnette v. Commonwealth, 75 Va. 867 (1S81) ; But- 
 ler v. State, 102 Wis. 864, 78 N. W. 590 (1899). 
 
 » Part "f tins case is omitted.
 
 Sec. 4) insanity. 153 
 
 fully justified by the doctrine of that case. But it is earnestly con- 
 tended by the learned counsel for the defendant that an uncontrollable 
 insane impulse to commit a criminal act may coexist with full knowl- 
 edge of the wrongfulness of the act, and that the legal test of respon- 
 sibility for crime, afforded by the knowledge of right and wrong re- 
 specting the act committed, has proved to be insufficient and unsat- 
 isfactory. It is accordingly insisted that the time has now arrived 
 when this criterion of responsibility can be safely modified by incor- 
 porating into the rule the element of irresistible impulse presented in 
 the defendant's requests. 
 
 It is undoubtedly true that in the progressive development of the 
 medical jurisprudence of insanity more enlightened views have grad- 
 ually prevailed respecting the functional activity of the mind, and the 
 course of symptoms indicating mental disease, and that just conclu- 
 sions have more frequently been reached by courts and juries in 
 recent years in regard to the relation of insanity to criminal respon- 
 sibility. But since the announcement of the decision by this court 
 in State v. Lawrence, supra, in the year 1870, this abstruse and diffi- 
 cult question has been the subject of exhaustive re-examination and 
 renewed study, in the light of all modern discoveries of scientific- 
 truth bearing upon it by the most eminent medical and legal jurists 
 in this country and England, and by courts of the highest authority 
 in both countries; and it is still held by an overwhelming weight of 
 judicial authority that, when the insanity of the accused is pleaded 
 in defense, the test of his responsibility for crime afforded by his 
 capacity to understand the nature and quality of the act he was doing, 
 and his mental power to distinguish between right and wrong with 
 respect to that particular act at the time he committed it, is the only 
 proper legal criterion, and that when fully developed and explained 
 to the jury, in its application to the special facts and circumstances 
 of different cases, it will always be found adequate to meet the de- 
 mands of justice and humanity towards the accused, , as well as to 
 insure the protection and safety of the public. 
 
 In Browne's Medical Jurisprudence of Insanity, published in Eng- 
 land in 1875 and republished in this country, the author critically 
 analyzes the famous answers given by the English judges to the 
 questions proposed to them by the House of Lords after the trial of 
 McNaghten in 1843 (sections 10-14), which have formed the basis 
 of the prevailing rule since that time, and the one approved in State 
 v. Lawrence, supra, and then proceeds as follows (section 15): "Aft- 
 er the fullest examination of the medical opinions on the other side, 
 we are constrained to hold that the answers of the judges are a most 
 satisfactory statement of the law, and that no better test of respon- 
 sibility could, at the present time, be devised than that which makes 
 knowledge of right and wrong at the time of the commission of the 
 act the means of judging of the punishability of the person who 
 has committed a criminal offense. 'Although not a test of insanity/
 
 154 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 says Dr. Hammond, 'the knowledge of right and wrong is a test of 
 responsibility. * * * Any individual having the capacity to know 
 that an act which he contemplates is contrary to law should be deemed 
 legally responsible and should suffer punishment. He possesses what 
 is called by Bain punishability. * * * The only forms of insanity 
 which in my opinion should absolve from responsibility * * * 
 are such a degree of idiocy, dementia, or mania as prevents the in- 
 dividual from understanding the consequences of his act, and the 
 existence of a delusion in regard to a matter of fact which, if true, 
 would justify his act.' " 
 
 In the elaborate work on Medical Jurisprudence by Witthaus & 
 Becker, published in New York in 1896, is a treatise on the Medical 
 Aspects of Insanity in Its Relations to Medical Jurisprudence, by 
 Dr. Fisher of New York. In that portion of the treatise devoted to 
 Impulsive Insanity the author says (volume 3, p. 273): 
 
 'All forms of crime may be committed under the influence of 
 irresistible impulse — homicide, suicide, arson, theft, and various acts 
 indicative of sexual perversion. We may also have melancholia or 
 mania associated with this condition, and more rarely delusions and 
 hallucinations. It is not, however, in these latter conditions that 
 we should consider this disease as an entity. In fact, the only safe 
 course is to follow the dictum of the law in this respect, which 
 virtually says that irresistible impulse is no defense unless a symptom 
 of insanity." 
 
 Again, in the treatise on Mental Unsoundness in Its Legal Relation, 
 in the same volume, by Mr. Becker, the author says, on pages 421, 
 422: "But evidence of the loss of control of the will, or of morbid 
 impulse, does not constitute a defense, except when it demonstrates 
 mental unsoundness of such a character as to destroy the power of 
 distinguishing right and wrong as to the particular act. * 
 This rule is the legal essence of the whole matter, and it avoids much 
 of the confusion which the German jurists and metaphysicians have 
 infused into this subject." 
 
 In the Medical Jurisprudence of Insanity or Forensic Psychiatry, 
 by Dr. S. V. Clevenger, of Chicago, published in 1898, the author 
 concedes that the test of right and wrong as to the particular act 
 charged is generally accepted in the United States in determining the 
 question of responsibility for crime (volume 2, p. 18), and abundantly 
 justifies the concession by a vast array of "Legal Adjudications in 
 Criminal Cases" cited in chapter 7 of the same volume. 
 
 In a very elaborate discussion of the subject by the Supreme Court 
 of Appeals in State v. Harrison, 36 W. Va. 729, 15 S. E. 982, 18 
 L. R. A. 221 (1892), the authorities are critically examined and com- 
 pared, and the doctrine of "irresistible impulst " emphatically repudiat- 
 ed. In the opinion it is said: "For myself, I cannot see how a person 
 who rationally comprehends the nature and quality of an act, and 
 knows that it is wrong and criminal, can act through irresistible in-
 
 Sec. 4) INSANITY. 155 
 
 nocent impulse. Knowing the nature of the act well enough to make 
 him otherwise liable for it under the law, can we say that he acts 
 from irresistible impulse, and not criminal design and guilt? * * * 
 I admit the existence of irresistible impulse, and its efficacy to ex- 
 onerate from responsibility, but not as consistent with an adequate 
 realization of the wrong of the act. It is that uncontrollable impluse 
 produced by the disease of the mind, when__that disease is sufficient 
 to override the reason and judgment, and obliterate the sense" of 
 right^axjo the acl^done^^nd_d^p^iye_the accused of the power io 
 choose between_them. TbjsjBapulse is born^of the disease, and,, when 
 it exists, capacity to know the nature^! the act is gone. This is the 
 sense in which 'irresistible Impulse' was defined in Hopps v. People, 
 31 111. 385, 83 Am. Dec. 231, and Dacey v. People, 116 111. 556, 6 
 N. E. 165." See, also, State v. Felter, 25 Iowa, 67; State v. Mewher- 
 ter, 46 Iowa, 88; State v. Nixon, 32 Kan. 205, 4 Pac. 159; Ort- 
 wein v. Commonwealth, 76 Pa. 414, 18 Am. Rep. 420; People v. 
 Hoin, 62 Cal. 120, 45 Am. Rep. 651; U. S. v. Guiteau (D. C.) 10 
 Fed. 195. 
 
 It is evident that much of the diversity of opinion or difference 
 in modes of expression upon this subject arises from a failure to 
 discriminate between that "irresistible impulse" produced by an in- 
 sane delusion or mental disease which has progressed to the extent of 
 dethroning the reason and judgment and destroying the power of 
 the accused to distinguish between right and wrong as to the act he 
 is committing, and that uncontrollable impulse which is alleged to 
 arise from mental disease and to coexist with the capacity to com- 
 prehend the nature and wrongfulness of the act, but which may with 
 equal reason and consistency be attributable to moral depravity and 
 criminal perversity. 
 
 In the case at bar it has been seen that the defendant's requests 
 do not assume the existence of an insane delusion or any mental 
 disease sufficient to override his reason and judgment, obliterate his 
 sense of right and wrong, and deprive him of the power to choose be- 
 tween them. On the contrary, they presuppose "sufficient mental 
 capacity and reason to enable him to distinguish between right and 
 wrong as to the particular act," and still declare him irresponsible if. 
 by reason of mental disease, he did not have "sufficient will power to 
 refrain from committing the act." 
 
 It is contended, in behalf of the state, that the requests present a 
 contradictory and impossible state of mind, in thus assuming that the 
 accused may have no insane delusions as to the act he is committing, 
 and have full capacity and mental power to comprehend the nature 
 and consequences of the act, to know that it was unlawful and wrong 
 and would subject him to punishment, and yet have no power to re- 
 frain from committing it. But, whatever may eventually be declared 
 by the great body of medical jurists to be the psychological truth in 
 regard to the coexistence of uncontrollable impulse and such full
 
 156 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 capacity to distinguish right from wrong in regard to the act in ques- 
 tion, at present, without clear and conclusive proof that such a state 
 of mind may exist, and in the absence of any satisfactory test for 
 the discovery of its existence that would be universally applicable in 
 the practicable administration of the criminal law, this court must 
 adhere to the rule approved in State v. Lawrence, supra, which, as 
 construed and applied in this state, has proved to be an adequate and 
 satisfactory criterion for determining the punishability of the ac- 
 cused when a plea of insanity is interposed in defense. 2 
 
 Exceptions overruled. 
 
 Judgment for the state. 
 
 LOWE v. STATE. 
 
 (Court of Criminal Appeals of Texas, 1902. 44 Tex. Cr. R. 224, 70 S. W. 206.) 
 
 Henderson, Judge. Appellant was convicted of the theft of a 
 horse, and his punishment assessed at confinement in the state peni- 
 tentiary for a term of five years. 
 
 The only question presented for our consideration is the action of 
 the court in failing and refusing to give a charge on kleptomania; that 
 is, a charge specially defining this species of insanity. It is conceded 
 that the court gave a sufficient charge on insanity generally, but that 
 kleptomania is a monomania or particular kind of insanity which 
 should have been specially defined to the jury. In this connection 
 we understand appellant to agree that the right and wrong test is ap- 
 plicable to kleptomania; that is, the disease of insanity must be such 
 as to have deprived appellant at the time of the capacity to distinguish 
 between the right and wrong of the particular act charged, which was 
 theft. If this be conceded, then it would seem to our comprehension 
 that the charge of the court is sufficient, because it lays down the "right 
 and wrong" test as to the particular act charged, and distinctly told 
 the jury, if at the time appellant was so diseased as not to know it was 
 wrong to commit theft, to acquit him. However, we do not understand 
 the definition of "kleptomania" to be as conceded by appellant's coun- 
 sel. The authorities define "kleptomania" as a species of mania, con- 
 sisting of an irresistible impulse to steal. See 1 Cleavenger, Insan. 
 p. 177; 1 Bish. Crim. Law, § 388, subd. 3. Some of the hooks, hou 
 ever, regard it as a morbid propensity to steal, whether consciously or 
 
 i Accord: People v. Owens, 123 Cal. 482, 56 Pac. 251 (1889); Spencer v. 
 State, 69 Md. 28, 13 am. B09 (1888); State v. Scott, 41 Minn. 865, 43 N. W. 
 >vi (1889); Cunningham v. State, 56 Miss. 269, 21 km. Rep. 360 (1879); 
 Mackln v. State, - r ,!> N. J. Law, 495, 36 am. 1040 (1896); People v. Carpenter, 
 102 N. V. 288, 6 N. B. 584 (1886); State v. Potts, 100 N. 0. 457, 6 S. B. 657 
 (1888); State v. Level le, ::i S. C. 120, 18 S. B. 819, 27 Am. St. Rep. 799 
 (1890); Johnson v. State, lOOTenn. 254, 45 S. W. 188 (1898); Cannon v. State, 
 
 41 Tex. Cr. R 467, 56 S. W. 851 (II ; State v. Lyons, 113 La. 959, 157 
 
 South. 890 (1905); Turner v. Territory, 15 Old. 557, 82 Pac. 650 (1003).
 
 ■Sec. 4) INSANITY. 157 
 
 unconsciously. If kleptomania is simply an irresistible impulse to 
 steal, regardless of the right and wrong test, then, notwithstanding 
 it was formerly recognized as a defense in theft by the courts of this 
 state (see Looney v. State, 10 Tex. App. 520, 38 Am. Rep. GIG; Har- 
 ris v. State, 18 Tex. App. 287), that doctrine has more recently been 
 repudiated (Hurst v. State, 40 Tex. Cr. R. 378, 46 S. W. 635, 50 S. 
 W. 719; Cannon v. State, 41 Tex. Cr. R. 467, 56 S. W. 351). The 
 writer dissented from the views of the majority of the court in those 
 cases, but such is now the law of this state. So we hold, if the right 
 and wrong test is applicable to kleptomania, the court gave a suffi- 
 cient charge on the subject. If kleptomania is merely an irresistible 
 impulse to steal, as the authorities seem to indicate, then it is not the 
 law in this state, and the court was not required to give a special 
 charge on that subject. 
 
 No error appearing in the record, the judgment is affirmed. 
 
 
 
 STATE v. JONES. 
 
 (Supreme Judicial Court of New Hampshire, 1871. 50 N. H. 339, 9 Am. 
 
 Rep. 242.) 
 
 Indictment against Hiram Jones for the murder of his wife. The 
 defendant was found guilty of murder in the first degree. 
 
 The defendant excepted to the following instructions given to the 
 jury : 
 
 If the defendant killed his wife in a manner that would be criminal 
 and unlawful if the defendant were sane, the verdict should be 
 "not guilty by reason of insanity," if the killing was the offspring or 
 product of mental disease in the defendant. 
 
 Neither delusion, nor knowledge of right and wrong, nor design 
 nor^ cunning in planning and executing the killing and escaping or 
 avoiding detection, nor ability to recognize acquaintances, or to labor, 
 or transact business, or manage affairs, is, as a matter of law, a test 
 of mental disease; but all symptoms and all tests of mental disease 
 are purely matters of fact, to be determined by the jury. Whether 
 the defendant had a mental disease, and whether the killing of his 
 wife was the product of such disease, are questions of fact for the 
 jury. 
 
 Insanity is mental disease— disease of the mind. An act produced 
 by mental disease is not a crime. If the defendant had a mental 
 disease which irresistibly impelled him to kill his wife — if the killing 
 was the product of mental disease in him — he is not guilty. He is 
 innocent — as innocent as if the act had been produced by involuntary 
 intoxication, or by another person using his hand against his utmost 
 resistance. Insanity is not innocence, unless it produced the killing 
 of his wife.
 
 158 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 If the defendant had an insane impulse to kill his wife, and could 
 have successfully resisted it, he was responsible. Whether every in- 
 sane impulse is always irresistible, is a question of fact. Whether, 
 in this case, the defendant had an insane impulse to kill his wife, 
 and whether he could resist it, are questions of fact. 
 
 Whether an act may be produced by partial insanity, when no 
 connection can be discovered between the act and the disease, is a 
 question of fact. 
 
 The defendant is to be acquitted on the ground of insanity, un- 
 less the jury are satisfied beyond a reasonable doubt that the killing 
 was not produced by mental disease. 
 
 The defendant was sentenced, and filed this bill of exceptions. 
 
 Ladd, J. 1 The remaining and most important questions in the 
 case arise upon the instructions given by the court to the jury, and 
 the refusal to give instructions requested by defendant's counsel. 
 
 When, as in this case, a person charged with crime admits the act, 
 but sets up the defense of insanity, the real ultimate question to be 
 determined seems to be whether, at the time of the act, he had the 
 mental capacity to entertain a criminal intent — whether, in point of 
 fact, he did entertain such intent. 
 
 In solving that problem, as in all other cases, it is for the court 
 to find the law, and for the jury to find the fact. The main ques- 
 tion for our consideration here is, what part of this difficult inquiry 
 is law, and what part fact? 
 
 It will be readily agreed, as said by Shaw, C. J., in Commonwealth 
 v. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dec. 458, that if the reason 
 and mental powers of the accused are either so deficient that he has 
 no will, no conscience, or controlling mental power, or if, through the 
 overwhelming violence of mental disease, his intellectual power is for 
 the time obliterated, he is not a responsible agent, and, of course, is 
 not punishable for acts which otherwise would be criminal. 
 
 But experience and observation show that, in most of the cases 
 which come before the courts, where it is sufficiently apparent that 
 disease has attacked the mind in some form and to some extent, it 
 has not thus wholly obliterated the will, the conscience, and mental 
 power, but has left its victim still in possession of some degree of 
 ability in some or all these qualities. It may destroy, or it may only 
 impair and becloud, the whole mind; or it may destroy, or only im- 
 pair, the functions of one or more faculties of the mind. There 
 seem to be cases where, as Erskine said in Iladficld's Case, reason 
 is not driven from her seat, but where distraction sits down upon it 
 along with her. holds Ikt trembling upon it, and frightens her from 
 her propriety. 
 
 The term "partial insanity" has been applied to such cases by writ- 
 ers and judges, from Lord Hale to Chief Justice Shaw, where, as 
 
 i Part of the opinion is omitted.
 
 Sec. 4) INSANITY. 159 
 
 has been said, "the mind may be clouded and weakened, but not 
 incapable of remembering, reasoning, and judging"; and it is here 
 that the difficulty of the subject begins, and that confusion and con- 
 tradiction in the authorities make their appearance. "No one can 
 say where twilight ends or begins, but there is ample distinction be- 
 tween night and day." We are to inquire whether a universal test 
 has been found wherewith to determine, in all cases, the line between 
 criminal accountability and nonaccountability — between the region of 
 crime and innocence — in those cases which lie neither wholly in the 
 darkness of night nor the light of day. If such a test exists, or if one 
 can be found, it is of the utmost importance that it be clearly defined 
 and broadly laid down, so that when it is given to a jury it may 
 aid, rather than confuse, them. To ascertain whether a rule has 
 hitherto been found, we must look to the authorities; and so far as 
 we have been able to examine them the leading and familiar English 
 cases and authorities are substantially as follows: [The learned judge 
 here reviewed the English authorities previous to McNaghten's Case, 
 and proceeded.] 
 
 The numerical preponderance of authority in England, as gathered 
 from the cases thus far, would seem to be decidedly in favor of the 
 rule that knowledge of right and wrong, without reference to the 
 particular act, is the test, although their force is much shaken, if 
 not wholly overthrown, by the qualifications which judges have seem- 
 ed to feel at liberty to introduce, to meet their individual views or 
 the exigencies of particular cases, and especially by the charge of 
 Lord Denman in Regina v. Oxford. 
 
 The memorable effort of the House of Lords, in 1843, to have the 
 confusion and conflict of opinion which had arisen on this perplexing 
 question all cleared away by one distinct and full avowal by the judges 
 of what the law was and should be in relation to it, is too conspicuous 
 in the history of the subject to be passed without notice. 
 
 It may safely be said that the character of the judges and the cir- 
 cumstances under which the questions in McNaghten's Case (see 
 note to Regina v. Higginson, 1 Car. & K., at page 130) were pro- 
 pounded to them by the House of Lords make it morally certain that 
 if, in the nature of things, clear, categorical, and consistent answers 
 were possible, such answers would have been given; in other words, 
 that if a safe, practical, legal test exists, it would have been then found 
 by those very learned men, and declared to the world. Such a result 
 would have brought order out of chaos, and saved future generations 
 of lawyers and judges a vast amount of trouble in trying this kind 
 of cases. But an examination of the answers given shows that they 
 failed utterly to do any such thing; and it is not too much to say that, 
 if they did not make the path to be pursued absolutely more uncertain 
 and more dark, they at best shed but little light upon its windings, 
 and furnish no plain or safe clue to the labyrinth. 
 
 In answer to the first question, all the judges, except Maule, say
 
 1G0 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 that, "notwithstanding the party accused did the act complained of 
 with a view, under the influence of insane delusion, of redressing 
 or revenging some supposed grievance or injury, or of producing 
 some public benefit, he is nevertheless punishable, according to the 
 nature of the crime committed, if he knew at the time of commit- 
 ting such crime that he was acting contrary to law, by which is meant 
 the law of the land." Here is an entirely new element — knowledge 
 that he was acting contrary to the law of the land; and hereupon 
 the inquiry arises, is a man, acting under a delusion of this sort, 
 presumed to know the law of the land? The answer must be, "Yes;" 
 for the judges say, further on : "The law is administered upon the 
 principle that every one must be taken conclusively to know the law 
 of the land, without proof that he does know it." 
 
 Let this proposition be examined a moment: Knowledge that the 
 act was contrary to the law of the land is here given as a test; that 
 is, such knowledge is assumed to be the measure of mental capacity 
 sufficient to entertain a criminal intent. By what possible means, it 
 may be asked, can that test or measure be applied, without first find- 
 ing out whether the prisoner in fact knew what the law of the land 
 was? How could a jury say whether a man knew, or did not know, 
 that an act was contrary to the law of the land, without first ascer- 
 liining whether he knew what that law was? 
 
 It was like saying that knowledge of some fact in science — as, for 
 example, that a certain quantity of arsenic taken into the stomach will 
 produce death — shall be the test, and at the same time saying that 
 it makes no difference whether the prisoner ever heard of arsenic, or 
 knows anything of its properties or not. Knowledge that the act is 
 contrary to law might be taken as a measure of capacity to commit 
 crime, and so might knowledge of any other specific thing that should 
 be settled upon for that purpose, and such a test would be consistent 
 and comprehensible, whether it were right or not; but when it is said 
 that knowledge of a certain thing is the test, and then we are told 
 in the next paragraph that it makes no difference whether the man 
 ever heard of the thing or not, I confess that I am not able to see any 
 opening for escape out of the maze into which we are led. Whether 
 a jury would be more successful must depend, I suppose, on their 
 comparative intelligence. 
 
 In connection with this rule, it is useful to bear in mind that Ilad- 
 ficld knew lie was doing an illegal act, and did it for the avowed pur- 
 pose of bringing upon himself the punishment which he knew was 
 the legal consequence of the act. 
 
 Maule, J., Ik.M- thai the general test of capacity to know right 
 from wrong in the ab tract is to lie applied in the case supposed by 
 the first question, the same as in any other phase of mental unsound- 
 ness. 
 
 In answer to the second and third questions, which relate to the 
 terms in which the matter should be left to the jury, the judges say
 
 Sec. 4) INSANITY. 1G1 
 
 that, "to establish a defense on the ground of insanity, it must be 
 clearly proved that, at the time of committing the act, the party ac- 
 cused was laboring under such a defect of reason from disease of 
 the mind as not to know the nature and quality of the act he was 
 doing, or, if he did know it, he did not know he was doing what was 
 wrong." 
 
 Suppose, now, an insane man does an act which he knows to be 
 contrary to law, because from an insane delusion ( if that term amounts 
 to anything more than the single term "insanity") he believes it to 
 be right notwithstanding the law, that the law is wrong, or that the 
 peculiar circumstances of the case make it right for him to disregard 
 it in this instance; how are these two rules to be reconciled? It 
 would seem to be plain that they are in hopeless conflict, and cannot 
 both stand. 
 
 Maule, J., says: "The questions necessarily to be submitted to 
 the jury are those questions of fact which are raised on the record. 
 In a criminal trial the question commonly is whether the accused be 
 guilty Oi- not guilty; but, in order to assist the jury in coming to a 
 right conclusion on this necessary and ultimate question, it is usua) 
 and proper to submit such subordinate or intermediate questions as 
 the course which the trial has taken may have made convenient to 
 direct their attention to. What these questions are, and the manner 
 of submitting them, is matter of discretion for the judge — a discre- 
 tion to be guided by a consideration of all the circumstances attend- 
 ing the inquiry. In performing this duty, it is sometimes necessary or 
 convenient to inform the jury as to the law" — which, he repeats, is 
 knowledge of right and wrong. He also says there are no terms which 
 the judge is by law required to use, only they must not be inconsist- 
 tent with the law that knowledge of right and wrong is the test. 
 
 The answer to the fourth question introduces a doctrine which 
 seems to me very remarkable, to say the least. The question was: 
 "If a person, under an insane delusion as to existing facts, commits 
 an offense, is he thereby excused?" To which the answer was as 
 follows: "On the assumption that he labors under partial delusion 
 only, and is not in other respects insane, he must be considered in the 
 same situation, as to responsibility, as if the facts, with respect to 
 which the delusion exists, were real. For example: If, under the 
 influence of delusion, he supposes another man to be in the act of 
 attempting to take away his life, and he kills that man, as he supposes, 
 in self-defense, he would be exempt from punishment. If his de- 
 lusion was that the deceased had inflicted a serious injury to his 
 character or fortune, and he killed him in revenge for such supposed 
 injury, he would be liable to punishment." 
 
 The doctrine thus promulgated as law has found its way into the 
 
 text-books, and has doubtless been largely received as the enunciation 
 
 of a sound legal principle since that day. Yet it is probable that no 
 
 ingenious student of the law ever read it for the first time without 
 
 Mik.Cb.L.— 11
 
 1G2 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 being shocked by its exquisite inhumanity.. It practically holds a man, 
 confessed to be insane, accountable for the exercise of the same rea- 
 son, judgment, and controlling mental power that is required of a 
 man in perfect mental health. It is, in effect, saying to the jury: The 
 prisoner was mad when he committed the act but he did not use suffi- 
 cient reason in his madness. He killed a man because, under an 
 insane delusion, he falsely believed the man had done him a great 
 wrong, which was giving rein to a motive of revenge, and the act 
 is murder. If he had killed a man only because, under an insane 
 delusion, he falsely believed the man would kill him if he did not do 
 so, that would have been giving rein to an instinct of self-preservation, 
 and would not be crime. It is true, in words, the judges attempt to 
 guard against a consequence so shocking as that a man may be pun- 
 ished for an act which is purely the offspring and product of insanity, 
 by introducing the qualifying phrase, "and is not in other respects 
 insane"; that is, if insanity produces the false belief, which is the 
 prime cause of the act, but goes no further, then the accused is to 
 be judged according to the character of motives which are presumed 
 to spring up out of that part of the mind which has not been reached 
 or affected by the delusion or disease. This is very refined. It may 
 be that mental disease sometimes takes a shape to meet the provi- 
 sions of this ingenious formula, or, if no such case has ever yet ex- 
 isted, it is doubtless within the scope of Omnipotent Power hereafter 
 to strike with disease some human mind in such peculiar manner that 
 the conditions will be fulfilled, and when that is done, when it is cer- 
 tainly known that such a case has arisen, the rule may be applied 
 without punishing a man for disease; that is, when we can certainly 
 know that, although the false belief on which the prisoner acted was 
 the product of mental disease, still that the mind was in no other way 
 impaired or affected, and that the motive to the act did certainly take 
 its rise in some portion of the mind that was yet in perfect health, the 
 rule may be applied without any apparent wrong. But it is a rule 
 which can be safely applied in practice that we are seeking; and to 
 say that an act which grows wholly out of an insane belief that some 
 great wrong has been inflicted is at the same time produced by a 
 spirit of revenge sprin^in^ from some portion or corner of the mind 
 that has not been reached by the disease is laying down a pathological 
 and psychological fact which no human intelligence can ever know 
 to 1m: true, and which, if it were true, would not be law, but pure 
 matter of fact. No such distinction ever can or ever will be drawn 
 in practice, and tin . 1, urdity as well as inhumanity of the rule seems 
 to me sufficiently apparent without further comment. 
 
 To form a o timate of the value of these answers, we have 
 
 only to suppose that, at the end of a criminal trial where the defense 
 is insanil y 1m- read to the jury for their guidance in determin- 
 
 ing the question with which they arc charged. Tried by this practical 
 test, it seems to me, they utterly fail; and the reason of the failure,
 
 Sec. 4) INSANITY. 1G3 
 
 as I think, is that it was an attempt to lay down as law that which, 
 from its very nature, is essentially matter of fact. It is a question 
 of fact whether any universal test exists, and it is also a question of 
 fact what the test is, if any there be. 
 
 It is entirely obvious that a court of law, undertaking to lay down 
 an abstract general proposition which may be given to the jury in all 
 cases, by which they are to determine whether the prisoner had ca- 
 pacity to entertain a criminal intent, stands in exactly the same position 
 as that occupied by the English judges in attempting to 'answer the 
 questions propounded to them by the House of Lords in this case ; and 
 whenever such an attempt is made I think it must always be attended' 
 with failure, because it is an attempt to find what does not exist, name- 
 ly, a rule of law wherewith to solve a question of fact. 
 
 This is the only conclusion I desire to draw from the cases and 
 text-writers referred to. It is clear to me that judges have adapted 
 their language to the facts of the particular case before them, and 
 that when anything is said about knowledge of right and wrong, or 
 knowledge of the quality of the act, or any other legal test, it has 
 been, and will inevitably continue to be, qualified and explained in 
 such a way, to meet the evidence upon which the jury are to pass, 
 that its character as a rule entirely disappears. 
 
 No one but the Creator of all things can look in upon the chaos of a 
 disordered mind, and determine with certainty whether its powers 
 are so much prostrated, enfeebled, or deranged, that the unhappy suf- 
 ferer has ceased to be an accountable being. Still the court and jury 
 must determine that question, approximately, as best they can in each 
 individual case; and it makes no difference, so far as I can see, with 
 the difficulty of the subject, whether Lord Brougham's view, that a 
 distinction is to be made between the moral accountability of a man 
 to his Maker and his accountability to human tribunals, be accepted 
 or not. With this duty to perform, and this responsibility upon them, 
 courts naturally and properly turn to men of science, such as have 
 had large experience in the care and treatment of the insane, for aid; 
 and the questions allowed to be put to experts and answered by them, 
 both in England and this country, show that what is laid down as law 
 in theory is almost universally treated as fact in practice. 
 
 At the trial, where insanity is set up as a defense, two questions 
 are presented : First. Had the prisoner a mental disease ? Second. 
 If he had, was the disease of such a character, or was it so far de- 
 veloped, or had it so far subjugated the powers of the mind, as to 
 take away the capacity to form or entertain a criminal intent? The 
 first is so purely a question of fact that no one would think of dis- 
 puting it any sooner than he would dispute that it was a question of 
 fact whether a man has consumption or not. It is in settling the 
 second that all the difficulty arises. 
 
 The instructions asked for in this case go upon the ground that 
 this is a mixed question of law and fact, that where there is delusion
 
 164 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 there can be no criminal intent, and that where there is capacity to 
 know right from wrong in reference to the particular act there is 
 capacity to commit crime. It is true the sixth request does not present 
 the matter in just this form; but if knowledge of right and wrong, as 
 to the act, is to be considered a legal test of criminal accountability, 
 it must follow that those who have such knowledge are accountable, 
 as well as that those who have it not are not accountable. And this 
 court is now called on, as a court of law, to decide whether either of 
 these tests shall be adopted in this state; and, if so, which. 
 
 It would doubtless be convenient to adopt some such test. It 
 would, to some extent, save the trouble of trying each case as it 
 arises on its own special and peculiar facts. At any rate, it would 
 narrow the range of investigation to a search for the facts consti- 
 tuting the test adopted. But in cases of this sort the argument of 
 convenience is not to be admitted. No formal rule can be applied 
 in settling questions which have relation to liberty and life, merely 
 because it will lessen the labor of the court or jury. Nor ought such 
 a rule to be adopted upon the authority of cases, unless those cases 
 show beyond a doubt, not only its existence, but that it is founded in 
 reason and fundamental truth. Expressions of even the most emi- 
 nent judges must not be mistaken for the enunciation of a universal 
 principle of law, when it appears that they were used in charging the 
 jury upon the facts arising in a particular case. 
 
 The instructions given also imply that this is a mixed question of 
 law and fact; that the only element of law which enters into it is 
 that no man shall be held accountable criminally for an act which 
 was the offspring and product of mental disease. Of the soundness 
 of this proposition there can be no doubt. Thus far all are agreed; 
 and the doctrine rests upon principles of reason, humanity, and jus- 
 tice too firm and too deeply rooted to be shaken by any narrow rule 
 that might be adopted on the subject. No argument is needed to 
 show that to hold that a man may be punished for what is the offspring 
 of disease would be to hold that he may be punished for disease. Any 
 rule which makes that possible cannot be law. 
 
 It will hardly be contended, I suppose, that delusion or knowledge 
 of right and wrong with reference to the act, or any other thing can 
 with any degree of propriety be called a legal test of the mental ca- 
 pacity to commit crime, unless that capacity is determined absolutely 
 in all cases, by the presence or absence of the fact which is assumed to 
 constitute the test. 
 
 If we speak of delusion, for instance, before that can be adopted 
 as th( i the sense intended by the request in this case, it must ap- 
 
 pear that it makes no difference whether the delusion has any refei 
 ence to or connection with the act or not. If we say, as Erskine said 
 in Iladfield's Case, that delusion is the test when it appears to have 
 
 produced the act, but not when it docs not appear to have produced 
 the act — that the delusion and the act should be connected — we ad-
 
 Seel) insanity. 165 
 
 mit that delusion cannot be a legal test, because it is not a universal 
 test. 
 
 And even if it were established that in all cases where there is 
 delusion there is not capacity to commit crime, with as much certain- 
 ty as that a heavy body left free in the air will fall to the earth, it 
 still remains a fact. That a heavy body will fall is a fact, although 
 it is at the same time a law of nature. That delusion attends inca 
 parity for crime would be a fact still, although, were the fact ascer- 
 tained to be certain and universal, it might be called a law of men 
 tal disease, and might, therefore, be given to the jury as a criterion 
 without any positive or practical wrong. 
 
 Yet, in that view, it would be the law of the land in no other sense 
 than the laws of nature and physics may be considered laws of the 
 land. Now, this court, sitting for the decision of questions of law, 
 is not at liberty to receive and consider evidence or weigh and deter- 
 mine matters of fact. 
 
 But the very first step in the inquiry to ascertain if there be any 
 test or criterion that may be safely given to the jury on this subject 
 whether as a fact universally true or as a principle of law, involves 
 the examination of an immense mass of evidence as complicated and 
 difficult to understand as can well be conceived. Moreover, it would 
 require a degree of skill and scientific attainment which could only 
 be reached by years of special study and intelligent observation. Not 
 only ought all the facts bearing on the question to be collected from 
 every asylum for the insane throughout the world, but, as an inflex- 
 ible rule is to be established, the facts of all other cases where the 
 patient has never received scientific treatment ought to be added to 
 the stock. Then, after collecting the facts in this way, it would be 
 necessary to compare cases and classes of cases one with the other, 
 to weigh facts against facts, to balance theories and opinions, and finally 
 to deduce a result which might itself turn out to be nothing more 
 than a theory or opinion after all. At any rate, it would be a de- 
 duction of fact. 
 
 It need not be said that this is not the business of a court of law 
 It is a work which can only be reasonably well done by men who de- 
 vote their lives exclusively to its accomplishment. Such a work has 
 doubtless been done, with extraordinary patience and ability, by our 
 distinguished countryman, Dr. Ray; and the result of his laborious 
 investigation is that no test can be found. He says: "To persons 
 practically acquainted with the insane mind, it is well known that in 
 every hospital for the insane are patients capable of distinguishing be- 
 tween right and wrong, knowing well enough how to appreciate the 
 nature and legal consequences of their acts, acknowledging the sanc- 
 tions of religion, and never acting from irresistible impulse, but de- 
 liberately and shrewdly." Ray's Med. Jurisp. Ins. § 43. 
 
 If we were at liberty to weigh and consider evidence upon the ques- 
 tion, it is clear that such testimony must outweigh all the convenient
 
 166 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 formulas and arbitrary dogmas laid down by lawyers and judges from 
 the time of Lord Hale to the present, simply for the reason that Dr. 
 Ray is qualified by study and observation to give an opinion, while 
 lawyers and judges are not. But we do not consider evidence upon 
 this point at all. Whether there is any universal test is as clearly a 
 pure matter of fact, as is the question what that test may be. 
 
 In view of these considerations, we are led to the conclusion that 
 the instruction given to the jury in this case, that "if the defendant 
 killed his wife in a manner that would be criminal and unlawful if 
 the defendant were sane, the verdict should be 'not guilty by reason 
 of insanity,' if the killing was the offspring or product of mental dis- 
 ease in the defendant," was right; that it fully covers the only gen- 
 eral, universal element of law involved in the inquiry; and, therefore, 
 that any further step in the direction indicated by the requests would 
 have been an interference with the province of the jury, and the enun- 
 ciation of a proposition which in its essence is not law, and which* 
 could not in any view safely be given to the jury as a rule for their 
 guidance, because, for aught we can know, it might have been false 
 in fact. 
 
 This would seem to dispose of the whole case. All the other in- 
 structions given are only the direct logical consequence of this prin- 
 ciple. 
 
 Whether the defendant had a mental disease, as before remarked, 
 seems to be as much a question of fact as whether he had a bodily 
 disease ; and whether the killing of his wife was the product of that 
 disease was also as clearly a matter of fact as whether thirst and a 
 quickened pulse are the product of fever. That it is a difficult ques- 
 tion does not change the matter at all. The difficulty is intrinsic, and 
 must be met from whatever direction it may be approached. Enough 
 has already been said as to the use of symptoms, phases, or manifes- 
 tations of the disease as legal tests of capacity to entertain a criminal 
 intent. They are all clearly matters of evidence, to be weighed by 
 the jury upon the question whether the act was the offspring of in- 
 sanity. If it was, a criminal intent did not produce it. If it was not, 
 a criminal intent did produce it, and it was crime. 
 
 The instructions as to insane impulse seem to be quite correct, and 
 entirely within the same principle. If the defendant had an insane 
 impulse to kill his wife, which he could not control, then mental dis- 
 ease produced the act. If he could have controlled it. then his will 
 must have assented to the act, and it was no1 caused by disease, but 
 by the concurrence of his will, and was therefore crime. 
 
 These instructions have now hem twice given to the jury in capital 
 cases in this state — first, by Chief Justice Pcrlcy, in State v. Pike. 
 49 N. II. 399, 6 Am. Rep. 533, and now again by Judge Doc, in the 
 ore us. In State v. Pike no exceptions were taken to this 
 part of the charge, and the questions here raised were not before 
 the whole courl for judicial determination, although they were printed
 
 Sec. 4) INSANITY. 1G7 
 
 in the case as transferred, and no objection to their form is understood 
 to have been made. 
 
 But a question was passed upon in that case which, carried to its 
 logical results, goes far towards settling most of the questions raised 
 upon the instructions here. It was claimed that the defendant was 
 irresponsible by reason of a species of insanity called "dipsomania." 
 The court instructed the jury that "whether there is such a mental 
 disease as dipsomania, and whether the defendant had that disease, and 
 whether the killing of Brown was the product of such disease, were 
 questions of fact for the jury." These instructions were specially ex- 
 cepted to by the defendant, and were held correct. This would seem 
 to be entirely inconsistent with the idea that either delusion or knowl- 
 edge of right and wrong is, as matter of law, a test of criminal capa- 
 city, and would also seem to be about equivalent to holding, in gen- 
 eral terms, that it was for the jury to say whether the killing was the 
 product of mental disease, and return their verdict of "guilty," or 
 "not guilty by reason of insanity," as they found that fact to be. 
 
 We should be slow to establish any doctrine on this important sub- 
 ject, which we could see would be likely to result in the escape of 
 malefactors from punishment, or afford encouragement to a fictitious 
 defense of insanity; and no considerations of convenience or ease in 
 the administration of the law, as before observed, should be allowed 
 to weigh at all against adhering to any doctrine or any course of prac- 
 tice that rests upon sound reason, or that appears to be necessary for 
 the attainment of right results, whether such doctrine or practice is 
 supported by uniform authority or not. 
 
 Still it is no objection to the course of the judges who tried this 
 case, and who tried Pike's Case, that it relieves the subject of some 
 of its most formidable difficulties so far as the court is concerned, 
 and, at the same time furnishes at least one clear and explicit direc- 
 tion which the jury can understand. 
 
 No untried or doubtful theory is adopted. The instruction given 
 was always law, and always must be law, while justice is administered 
 upon principles at all consonant with the calls of civilization and hu- 
 manity. The only objection is that the court did not go further, and 
 undertake to explore a region where all is doubt, uncertainty, and 
 confusion upon the authorities, and where upon principle they had no 
 right to go at all; that they did not undertake to lay down a rule, 
 where, if we could allow ourselves to investigate the fact, we should 
 probably find there is and can be no rule, nor to enunciate as law a 
 pure matter of fact which can only be absolutely known to the Al- 
 mighty. 
 
 I may add that it confirms me in the belief that we are right, or at 
 least have taken a step in the right direction, to know that the view 
 embodied in this charge meets the approval of men who, from great 
 experience in the treatment of the insane, as well as careful and long 
 study of the phenomena of mental disease, are infinitely better qualified
 
 1G8 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 to judge in the matter than any court or lawyer can be. See Ray's 
 Medical Jurisp. Ins. (5th Ed.) § 44. 
 
 The satisfaction with which the charge to the jury in State v. Pike 
 is understood to have been received by the most enlightened members 
 of the medical profession proves to my mind, not that we have thrown 
 down old landmarks to adopt any theory based on a partial, imper- 
 fect, or visionary view of the subject, but that, in a matter where we 
 must inevitably rely to a great extent upon the facts of science, we 
 have consented to receive those facts as developed and ascertained 
 by the researches and observation of our own day, instead of adhering 
 blindly to dogmas which were accepted as facts of science and erro- 
 neously promulgated as principles of law 50 or 100 years ago. 
 
 The last instruction, that the defendant was to be acquitted on the 
 ground of insanity, unless the jury were satisfied beyond a reason- 
 able doubt that the killing was not produced by mental disease, was 
 in accordance with State v. Bartlett, 43 N. H. 224, 80 Am. Dec. 154, 
 and was correct. 
 
 Exceptions overruled. 2 
 
 2 "The Criminal Code of Germany, however, contains the following pro- 
 vision, which is said to have been the formulated result of a very able dis- 
 cussion both by the physicians and lawyers of that country: There is no 
 criminal act when the actor at the time of the offense is in a state of un- 
 consciousness or morbid disturbance of the mind, through which the free 
 determination of his will is excluded.' 14 Encyc. Brit. (Oth Ed.) p. 112. cit- 
 ing Crim. Code of Germany, § 51 (R. G. B.). The Code of France provides: 
 There can be no crime or offense if the accused was in a state of madness 
 at the time of the act' For some time the French tribunals were inclined 
 to Interpret this law in such a manner as to follow in substance the law of 
 England. But that construction has been abandoned, and the modern view 
 of the medical profession is now adopted in that country." Soinerville, J., 
 in Parsons v. State, 81 Ala. 577, 2 South. 854, 60 Am. Rep. 103. 
 
 "Though the defense in this case is weak-mindedness, or imbecility, yet the 
 same test— that of the ability to distinguish right from wrong in the doing 
 of ilie particular act — must be applied to Imbecility as well as to insanity." 
 Sherwood, P. J., in State v. Palmer, 1G1 Mo. 152, 61 S. W. 651 (1901). 
 
 "All the modern medico-legal writers to whose writings we have had access 
 recognize a Bpecies Of mental unsoundness, connected with sleep, which they 
 commonly treat of under the general head of 'Somnambulism.' * * * 
 They define somnolentia 'to lie the lappiug over of a profound Bleep Into the 
 domain of apparent wakefulness,' and say it produces a state of involuntary 
 Intoxication, which for the time destroys moral agency. * * * If. as claim- 
 ed, the appellanl was unconscious when be fired the first shot, it cannot be 
 Imputed to bim as a crime Nor is he guilty if partially conscious, if. upon 
 being partially awakened, and finding the deceased had hold of him and was 
 shaking him, be Imagined be was being attacked, and believed himself in 
 danger of losing his life or of sustaining great bodily injury at the hands 
 of his assailant, he shol in good faith, believing it necessary to preserve ins 
 life ot his person from greal harm. In such circumstances it does not mat- 
 ter whether be had reasonable grounds for his belief or not" Cofer, J., in 
 lain v. Commonwealth, 7S Ky. 183, 30 Am. Rep. 213 (1870).
 
 Sec. 5) INTOXICATION. 1GJ> 
 
 SECTION 5.— INTOXICATION. 
 
 Lastly, although he who is drunk is for the time non compos mentis, 
 yet his drunkenness does not extenuate his act or offense nor turn to 
 his avail, but it is a great offense in itself, and, therefore, aggravates 
 his offense, and doth not derogate from the act which he did during 
 that time, and that as well in cases touching his life, his lands, his 
 goods, as any other thing that concerns him. Beverley's Case (1603) 
 4 Coke, p. 125. 
 
 MARSHALL'S CASE. 
 
 (Lancaster Assizes, 1830. 1 Lewin, C. C. 76.) 
 
 On an indictment for stabbing, under the statute: 
 
 Park, J., told the jury that they might take into their considera- 
 tion, among other circumstances, the fact of the prisoner being drunk 
 at the time, in order to determine whether he acted upon a bona fide 
 apprehension that his person or property was about to be attacked. 
 
 Note. — In Goodier's Case, York Summer Assizes, 1831, Park, J., directed 
 the jury to the same effect. 
 
 REX v. THOMAS. 
 
 (Monmouth Assizes, 1837. 7 Car. & P. 817.) 
 
 Indictment for maliciously stabbing. It appeared that the prisoner 
 and prosecutor were at a beer house together with several other per- 
 sons. Some words passed between the prisoner and a third person, 
 after which he was seen walking up and down the passage of the 
 house with a sword stick in his hand, with the blade open, and was 
 heard to say: "If any man strikes me I will make him repent it." He 
 was desired to put up the stick, which he refused to do, and shortly 
 after the prosecutor, ignorant of what occurred, but perceiving the 
 prisoner was creating a disturbance, struck the prisoner twice with his 
 fist, when the prisoner stabbed him. Several of the witnesses were 
 cross-examined as to contrary statements before the magistrate. 
 Parke, B., in summing up the case to the jury said: 1 
 I must also tell you that if a man makes himself voluntarily drunk 
 that it is no excuse for any crime he may commit whilst he is so. He 
 must take the consequence of his own voluntary act, or most crimes 
 would otherwise be unpunished. But drunkenness may be taken into 
 
 i Part of the opinion not relating to intoxication is omitted.
 
 170 INTENT AS AFFECTED BY CONDITIONS. (Ch. 5 
 
 consideration in cases where what the law deems sufficient provoca- 
 tion has been given, because the question is, in such cases, whether the 
 fatal act is to be attributed to the passion of anger excited by the pre- 
 vious provocation, and that passion is more easily excitable in a per- 
 son when in a state of intoxication than when he is sober. So, where 
 the question is whether words have been uttered with a deliberate 
 purpose, or are merely low and idle expressions, the drunkennness of 
 the person uttering them is proper to be considered. But if there is 
 really a previous determination to resent a slight affront in a bar- 
 barous manner, the state of drunkenness in which the prisoner was 
 ought not to be regarded, for it would furnish no excuse. You will 
 decide whether the subsequent act does not furnish the best means of 
 judging what the nature of the previous expression really was. 
 Verdict — Not guilty. 2 
 
 KEENAN v. COMMONWEALTH. 
 
 (Supreme Court of Pennsylvania, 1862. 44 Pa. 55, 84 Am. Dec. 414.) 
 
 Error to the court of oyer and terminer of Allegheny county. 
 
 This was an indictment against Thomas B. Keenan for the murder 
 of John A. Obey on the 5th day of July, 1862. 3 
 
 Under the ruling of the court below (Sterrett, P. J.) the defendant 
 was convicted of murder in the first degree. The case was thereupon 
 removed intoThis court, where the answers of the court below to cer- 
 tain points which had been propounded by the counsel for the defend- 
 ant were assigned for error, all of which are sufficiently presented in 
 the opinion of this court. 
 
 Lowrie, C. J. Our statute adopts the common-law definition of 
 murder, and then distinguishes it of two degrees, defining the first 
 degree specially by certain enumerated cases, and generally by the 
 words "any other kind of willful, deliberate and premeditated kill- 
 ing." It is this general part of the definition that we have to apply in 
 the present case. 
 
 A careful study of our jurisprudence on this subject clearly reveals 
 the fact that such terms as a deliberate purpose or a deliberate and 
 premeditated intent to kill, or a specific intent to take life, are some- 
 times substituted for the words of the statute; yet our reported 
 prudence is very uniform in holding that the true criterion of the 
 first : e is the intent to take life. The deliberation and premedita- 
 tion required by the statute are not upon the intent, but upon the kill- 
 ing. It is deliberation and premeditation enough to form the intent 
 to kill, and not upon the intent after it has been formed. An intent 
 
 a Accord: People v. Rogers, 18 N. Y. 0, 72 Am. Dec. 48-1 (1S5S). 
 * Part «>r tins case la omitted.
 
 Mii 
 
 INTOXICATION. 171 
 
 distinctly formed, even "for a moment" before it is carried into act, 
 is enough. 
 
 What the definition requires, therefore, is a distinctly formed in- 
 tent to kill, not in self-defense, and without adequate provocation. 
 It requires the malice prepense or aforethought of the common-law 
 definition of murder to be, not a general malice, but a special malice 
 that aims at the life of a person. This distinctly formed intent to 
 take life is easily distinguished, in the general, from the instinctive 
 and spontaneous reaction of mind and body against insult and in- 
 jury, which is often the result of no distinctly formed intention, and 
 also from those cases of previous and deliberate intention to kill, 
 which may override even what, without it, would be adequate provo- 
 cation given at the time of the killing. 
 
 Keeping this common understanding of the definition in mind, we 
 shall also get clear of the influence of the cases in other states, where 
 the terms "deliberate" and "premeditated" are applied to the malice 
 or intent, and not to the act, and thus seem to require a purpose brood- 
 ed over, formed, and matured before the occasion at which it is car- 
 ried into act. Under such a definition of the intention, all our juris- 
 prudence by which malice and intent are implied from the character 
 of the act, and from the deadly nature of the weapon used, would be 
 set aside; for we could not, from these, imply such a previous and 
 deliberate, but only a distinctly formed intent, and this involves de- 
 liberation and premeditation, though they may be very brief. We 
 should therefore blot out all our law relative to implied intent or mal- 
 ice, and require it to be always proved as express. And this would 
 be a most disastrous result, for the most deliberate murderers are usual- 
 ly those who know how to conceal their intent until the occasion arises 
 for the execution of it. 
 
 And, still keeping in mind our usual understanding of this general 
 part of the definition of murder in the first degree, we are further pre- 
 pared for an intelligent appreciation of the influence which the fact 
 of intoxication may legitimately have on the degree of criminality, 
 and in the formation of the intent to kill, and in the ascertainment of it. 
 
 The learned judge of the oyer and terminer charged the jury that 
 the prisoner's intoxication was not such an excuse as would allow 
 a less than ordinarily adequate provocation to palliate the offense, un- 
 less it was so great as to render him "unable to form a willful, de- 
 liberate, and premeditated design to kill," or, as he afterwards ex- 
 presses the thought, "of judging of his acts and their legitimate con- 
 sequences." The first of these expressions had already been very cor- 
 rectly and adequately explained to the jury, and the second one plain- 
 ly means that, in using a deadly weapon in a deadly way, the prison- 
 er is charged with the ordinary consequences of his acts, if he was 
 not so drunk as to be unable to judge that such would ordinarily be 
 the consequence of such acts. The two forms of expression are 
 therefore the same in their meaning.
 
 172 INTENT AS AFFECTED BT CONDITIONS. (Cll. 5 
 
 We discover no error in this instruction, and think it is in substan- 
 tial accordance with all the best considered judicial precedents. And 
 if we keep clear of the peculiarities found in other states, arising ei- 
 ther from misapprehension or from a differently worded statute, we 
 shall have little difficulty in recognizing its correctness. 
 
 No' one pretends that intoxication is, of itself, an excuse or pallia- 
 tion of a crime. If it were, all crimes would, in a great measure, de- 
 pend for their criminality on the pleasure of their perpetrators, since 
 they may pass into that state when they will. But it is argued that, 
 because intoxication produces a state of mind that is easily excited 
 by provocation, therefore the crimes committed under such intoxica- 
 tion and provocation are less criminal than when committed in a state 
 of sobriety under the same provocation. We are very sure that no stat- 
 ute will ever announce such a rule, and that we are not authorized to 
 announce it in interpreting this statute. 
 
 Stated in its most general form, it amounts to this: That, because 
 the mind usually receives provocation with an intensity proportioned 
 to its own excitement or excitability, therefore the act of provocation 
 must be measured, not by its own character and its ordinary effect, but 
 by the state and habit of the mind that receives it. Then, measured by 
 this rule, the crimes of a proud, or captious, or selfish, or habitually ill- 
 natured man, or one who eats or fasts too much, or of one who is habit- 
 ually quarrelsome, covetous, dishonest, or thievish, or who, by any sort 
 of indulgence, fault, or vice, renders himself very easily excitable, or 
 very subject to temptation, are much less criminal than those of a mod- 
 erate, well-tempered and orderly citizen, because to the former a very 
 small provocation or temptation becomes adequate to excuse or pal- 
 liate any crime. If such were the rule, a defendant would be much 
 more likely to injure than to benefit his case by showing a good char- 
 acter, and the law would present no inducement to men to try to rise 
 to the standard of even ordinary social morality. 
 
 Of course, it is impossible that such a principle can be a rule of 
 law. If it were admitted, it could not be administered; for no judi- 
 cial tribunal can have time or competence for such a thorough in- 
 vestigation of the special character or state of each individual mind 
 as the rule requires, and therefore it would necessarily jump to a 
 conclusion, such as the caprice or prejudice or other influence of the 
 moment would dictate. 
 
 The prisoner was somewhat intoxicated when, with six or seven 
 companions, he entered the passenger car, and he and they seem to have 
 behaved badly and noisily, and um<1 very profane language there, so 
 that several persons preferred walking and left the car. Though they 
 w<tc twice requested by the conductor to he quiet, the prisoner used 
 abusive and threatening language in reply, and his companions and 
 he persisted in their ill conduct, and he expressed his determination 
 remain. Then the conductor took him by the lapel of his coat and 
 ng to put him (Hit, when lie struck the conductor and was
 
 Sec. 5) intoxication. 17:; 
 
 struck in return, and then his companions joined in the scuffle, and 
 he drew a knife and by several strokes of it mortally wounded the con- 
 ductor. 
 
 It is to such evidence as this that the judge's charge relates, and it 
 seems to be entirely relevant, adequate, and correct, and free from 
 any invasion of the functions of the jury. And we say this with spe- 
 cial reference to those parts of the charge which say that the prisoner 
 ought to be taken to have intended the natural and usual consequences 
 of the act of using the knife in the way he did; that the conductor 
 had a right to put out a passenger so misbehaving; that the prisoner's 
 resistance and the blow struck by him were his own provocation of 
 the struggle in which he used the knife, and neither the struggle nor 
 the blow received in return can be any excuse for its use. None of 
 the other points need any special notice. Nor do we find any error 
 in impaneling the jury or in the admission or rejection of evidence. 
 We have considered the prisoner's case with all the caution and con- 
 cern which its terrible penalties are calculated to inspire, and it is 
 with much sorrow, on his account, that we are compelled to say that 
 we discover no valid ground for granting him a new trial. 
 
 Sentence affirmed and record remitted. 2 
 
 M$'3lA> L t'2 
 
 FLANIGAN v. PEOPLE. 
 
 (Court of Appeals of New York, 1881. 86 N. Y. 554, 40 Am. Rep. 556.) 
 
 Error to the General Term of the Superior Court of the city of 
 Buffalo, to review judgment entered upon an order made July 23, 
 1881, which affirmed a judgment of a Criminal Term of said court, 
 entered upon a verdict convicting the plaintiff in error of the crime 
 of murder in the first degree. 
 
 The plaintiff in error was indicted for the murder of one John 
 Karins. It appeared by the evidence that the deceased kept a board- 
 ing house for laborers upon a railroad, and also was foreman or boss. 
 The prisoner boarded with Karins, and had formerly been at work- 
 under him, but about three months before the murder Karins caused 
 him to be discharged. The prisoner went to Karins' room about 10 or 
 11 p. m., and stabbed him while he was asleep. The prisoner was in 
 the habit of drinking to excess, and was frequently intoxicated. He 
 had been drinking heavily on the day of the murder. 3 
 
 Miller, J. It is claimed that the judge erred upon the trial in re- 
 fusing to charge, as requested by the prisoner's counsel, "that, from 
 all the evidence in the case, the jury may believe, if they see fit, that 
 
 2 Accord: People v. Williams, 43 Cal. 344 (1S72). Cf. Haile v. State, 11 
 Humph. (Term.) 154 (1850). 
 
 3 Part of this case is omitted.
 
 
 
 
 174 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 the prisoner may have been the victim of an appetite for drink, en- 
 tirely overcoming his will, and amounting to a disease, and that, if 
 they so believe, they must acquit the prisoner, unless they believe, be- 
 yond a reasonable doubt, that the act was not committed while his 
 mind was overwhelmed by the effects of the liquor so taken." The 
 proposition contained in this request was to the effect that the jury 
 were authorized to believe that the prisoner was the subject of an ap- 
 petite for intoxicating drinks, which entirely controlled his will, and to 
 the extent of becoming a disease, and that he was not responsible lin- 
 ks the crime was committed while he was not under the influence of 
 such disease. 
 
 The effect of this proposition would be to excuse the prisoner from 
 the consequences of the crime committed, if he was laboring under 
 intoxication so that his will was overcome, and not under his control 
 at the time ; in other words, that drunkenness, if carried to the extent 
 of producing incapacity to control the action of the mind and will of 
 the prisoner, would be an excuse for the crime committed. 
 
 The rule is well settled that voluntary intoxication of one who, 
 without provocation, commits a homicide, although amounting to a 
 frenzy, does not exempt him from the same construction of his con- 
 duct, and the same legal inferences, upon the question of intent as 
 affecting the grade of his crime, which are applicable to a person en- 
 tirely sober. People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484. 
 
 Within the rule laid down in the case cited, we think that the re- 
 quest to charge cannot be sustained. The position of the learned 
 counsel for the prisoner is that he had a right to go to the jury upon 
 the question whether intoxication was a disease, as described in the 
 request, and whether the prisoner was afflicted with it, and, if the jury 
 found both of these facts, the drunkenness could not have been vol- 
 untary, and, if the jury believed the mind was overwhelmed by means 
 thereof, that the prisoner must be excused as an insane man. It may 
 he answered that no such distinct request was made; but, aside from 
 this, the position taken would be adverse to the principle which has 
 en established by a long series of decisions, and, if enforced, might 
 id to exonerate offenders for crimes committed by them when under 
 the influence of intoxicating drinks, and thus furnish an excuse for the 
 commission of the most heinous offenses. The authorities all agree 
 upon the proposition that mental alienation, produced by drinking in- 
 toxicating liquors, furnishes no immunity for crime, and, to sustain 
 the doctrine asserted, it would be necessary to overrule this well-es- 
 tablished principle. The proposition contained in the request was also 
 objectionable, as it assumed that, if the prisoner had become the vic- 
 tim of .in appetite for strong drinks, so as to overcome his will, and 
 unting to a di even although he was able to distinguish be- 
 
 and wrong al the time of, and with n sped to, th< I i om- 
 mitted, he should be acquitted. Flanagan v. People, 52 X. Y. 467, 11 
 Am. Rep. 731. 
 
 \
 
 Sec. 5) INTOXICATION. 
 
 to 
 
 The finding of the jury that the prisoner was affected with the al- 
 leged disease would not exonerate him from responsibility for the 
 crime, and his intoxication did not authorize the court to charge as 
 requested. 
 
 No error was, therefore, committed in the refusal of the judge to 
 grant the request, nor was there any error in the refusal of the judge 
 to charge, as requested, that the jury might "take into consideration 
 the fact of drunkenness as affecting each of the questions of delibera- 
 tion and premeditation." 
 
 The question presented by this request has been the subject of con- 
 sideration in the reported decisions in the courts of this state. In 
 People v. Rogers, supra, a request was made by the prisoner's coun- 
 sel to charge the jury to the effect that drunkenness might exist to 
 such a degree that neither an intention to murder nor a motive for 
 the act could be imputed to the prisoner. The request was refused, 
 and Denio, J., in discussing the question, says: "This would be pre- 
 cisely the same thing as advising them that they might acquit of mur- 
 der on account of the prisoner's intoxication, if they thought it suffi- 
 cient in degree. It has been shown that this would be opposed to a 
 well-established principle of law." He further remarks: "The judge 
 ought to have charged that, if a man makes himself voluntarily drunk, 
 that is no excuse for any crime he may commit while he is so, and 
 that he must take the consequences of his own voluntary act." The 
 doctrine thus laid down in principle would sustain the refusal of the 
 judge to charge as requested in the case at bar. In Kenny v. People, 
 31 N. Y. 330, the prisoner was convicted of murder in the first degree, 
 committed while in a state of voluntary intoxication, upon a sudden 
 impulse. The court instructed the jury that voluntary intoxication 
 can furnish no excuse or immunity for crime, and so long as the of- 
 fender is capable of conceiving a design he will be presumed, in the 
 absence of contrary proof, to have intended the natural consequences 
 of his own acts. The judge was requested to charge, among other 
 things, that intoxication may be considered in determining whether 
 the homicide was committed by a premeditated design, which was re- 
 fused, and it was held by this court that there was no error in de- 
 clining to charge as requested, and Potter, J., cites from People v. 
 Rogers the remarks we have already quoted from the opinion in that 
 case, and says that "People v. Rogers, and the opinions delivered 
 therein and the authorities cited, are conclusive, and control this case." 
 He further remarks that "the rule established in that case, and, in 
 fact, the uniform rule in all the cases, is that, where the act of killing 
 is unequivocal and unprovoked, the fact that it was committed while 
 the perpetrator was intoxicated cannot be allowed to affect the legal 
 character of the crime." This case is directly in point in regard to 
 the subject of premeditation, and the principle laid down would seem 
 to cover deliberation also. As, however, the judge subsequently, in 
 response to a request made by the prisoner's counsel to the effect that
 
 
 17G INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 the jury might take into consideration the question of drunkenness as 
 affecting the fact of deliberation, said that he had so charged, and 
 had left it to the jury to determine as to the degree of murder and 
 whether there was deliberation, and thus allowed the jury to consid- 
 er the intoxication of the prisoner in reference to deliberation, it is 
 not necessary to determine the question whether the refusal to charge 
 as to deliberation was erroneous. 
 
 The judge also charged, in response to a request of the prisoner's 
 counsel, that, if the jury believed that the prisoner was under the in- 
 fluence of liquor or drink at the time of the commission of the act, 
 they might take into consideration the drunkenness of the prisoner, 
 as to whether it did not render more weighty the presumption of his 
 having yielded to sudden passion rather than to previous malice. In 
 an earlier portion of his charge, he stated that premeditation and delib- 
 eration was essential to establish murder in the first degree, and the 
 entire charge on the question discussed was quite as favorable to the 
 prisoner as the evidence warranted. The evidence was quite clear 
 as to the intention of the prisoner, and to sanction a rule that his drunk- 
 enness was an excuse would be adverse to the whole current of author- 
 ity and what has been understood to be well-established law. 
 
 The judgment should therefore be affirmed, and the record remit- 
 ted to the court below, with directions to proceed as required by law. 
 All concur. 
 
 Andrews, J., entertained some doubt upon the point whether the 
 court did not err in refusing to charge that the jury might consider 
 the fact of drunkenness upon the point of premeditation, as well as 
 upon the point of deliberation. 
 
 Judgment affirmed. 
 
 STATE v. HAAB. 
 (Supreme Court of Louisiana, 1901. 105 La. 230, 29 South. 725.) 
 
 Nicholas, C. J. In this case, defendant, Fred. H. Haab, indicted 
 for murder, convicted of manslaughter, and sentenced to imprison- 
 ment for six years at hard labor in the penitentiary, has appealed from 
 the sentence rendered, upon a number of grounds embodied in bills 
 of exception and assignment of error, which we have examined with 
 great care. 1 
 
 We think that the evidence disclosed that for some time previous to 
 the homicide, at the time of the homicide, and up to the time of his ar- 
 rest, the accused had been continually drinking heavily and getting 
 drunk; that he was drunk at the time of the homicide. It is claimed 
 for tin- defense that during this whole period the condition of his mind 
 was such as to render him unable to distinguish right from wrong, and 
 
 i Pari <>f tii'' opinion is omitted.
 
 
 Sec. 5) INTOXICATION. 177 
 
 that his long continuance in excessive drinking had brought him into 
 such a condition that he was unable to resist drinking and getting 
 drunk ; that his condition o,f mind was such as to give rise to delusions 
 on his part that he was about to be attacked and killed. 
 
 It is claimed that during this long debauch he had delirium tremens, 
 also at some time prior to the homicide. It is claimed that there was 
 evidence to show that he was in fact crazy or insane at the time of the 
 homicide, and that, though this was the result of heavy drinking, the 
 accused was, nevertheless, excusable for the homicide. 
 
 Referring to one of the special charges requested by the accused, 
 wherein reference is made to a person being first crazy, and then get- 
 ting drunk, and while "crazy drunk" committing homicide, the court 
 said: "No evidence supports this charge. The accused was never de- 
 ranged before this particular spree, nor after. It was one continuous 
 debauch, beginning, according to his witnesses, about six weeks be- 
 fore the homicide, while the alleged insanity appeared about two 
 weeks before the homicide. After the killing the accused recovered in a 
 few days. Drunkenness pre-existed the alleged insanity." The judge 
 further said that he had, in his general charge, announced the principles^., 
 of law declared in that charge, though he did not think it applied to the 
 defendant's case. He did charge that "if the intoxication was the result 
 of pre-existing insanity, and the accused, by reason of such pre-existing 
 insanity, could not overcome his desire to gratify his thirst for drink, 
 then such insanity would be the actuating cause of the crime, and the 
 jury should so consider it. If, however, his excessive indulgence in 
 liquor was caused by his own negligence, and he had an opportunity 
 of correcting his weakness, and failed to do so, he is responsible for 
 the results of his own excesses, accordingly as you have been instruct- 
 ed in this charge — that is, if a temporary result, he would be responsi- 
 ble ; if a permanent result, he would be irresponsible." 
 
 The district judge, at the foot of the bill of exceptions taken by the 
 accused to his refusal to give to the jury the special charge that "the 
 law recognizes the existence of a form of diseased mind known as de- 
 lirium tremens, induced by the excessive use of stimulating drink, 
 and in the event of a homicide committed by one laboring under such 
 disease to a degree that dethrones reason and prevents him from 
 knowing the difference between right and wrong, such homicide would 
 be excusable, although such mental disease was not permanent, and 
 was due to the excessive drinking of alcoholic stimulants," made the 
 following statement, evidently intended for the Supreme Court's con- 
 sideration, and not that of the jury: 
 
 "If Haab's condition at the time he fired the fatal shot could be 
 properly designated as delirium tremens (which I deny), it must be 
 shown to be : 
 
 "(1) A fixed, settled, or permanent condition, and not a temporary 
 one, as in this case. If a man voluntarily drinks to excess, tempo- 
 Mik.Cb.L.— 12 
 
 jto.-j r^. outr ^ i
 
 178 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 - 
 
 rarily destroying his mental soundness to such an extent as not to 
 know the difference between right and wrong, and while in this con- 
 dition commits an unlawful homicide, his act is inexcusable, whether 
 you designate his mental condition as simple drunk, drunk to stupe- 
 faction, crazy drunk, or insane dementia, or delirium tremens. 
 The temporary character of his affection makes him responsible. A 
 state of disease brought about by a person's own act, as delirium tre- 
 mens caused by excessive drinking, is no excuse for committing a 
 crime, unless the disease so produced is permanent. Withaus & Beek- 
 er, vol. 3, page 491; 1 Hale, P. C. 32; 4 Black, 26; State v. Kraemer, 
 49 La. Ann. 774, 22 South. 254, 62 Am. St. Rep. 664. This is the 
 common law. 
 
 "(2) It must also be shown that the delirium tremens was not the 
 immediate product of excessive drinking, but a remote consequence of 
 it. The facts are that Haab's mental condition may have been un- 
 bound at the time of the homicide, but was the immediate result of 
 his undue indulgence in spirituous liquors, and not the result of any 
 previous sprees or drunkenness; that after the killing he was jailed, 
 and recovered in five or six days permanently. Under this state of 
 facts the court declined to make any distinctions with reference to his 
 unsound condition of mind. If he was merely 'crazy drunk,' as it is 
 vulgarly called, he would be just as much entitled to an acquittal, 
 if he could not tell the difference between right and wrong, as he 
 would be if his condition was designated as a delirium. 
 
 "Criminal indulgence in the use of spirituous liquors would be the 
 basis of both conditions." 
 
 Under other bills the court said : 
 
 "There was no evidence to show that delusion in this case was oc- 
 casioned by a 'fixed' frenzy. There was nothing 'fixed' in defendant's 
 mental condition. The evidence shows that his alleged mental de- 
 rangement as a fact was temporary, and was created by the excessive 
 use of spirituous liquors. The delusions, if any, were incidents to the 
 excessive drinking. As to the statement that this accused was both 
 drunk and insane: This phraseology may be misleading. It may im- 
 ply there was evidence to show that the alleged insanity and drunken- 
 ness were two separate and distinct conditions proceeding from dif- 
 ferent causes. There was no evidence in support of such a fact. The 
 evidence showed that Haab's symptoms, whatever they were, proceed- 
 ed from one and the same cause, and were its immediate and connect- 
 ing effects, differing only in degree. Naturally, the continued use of 
 spirituous liquors on one debauch without interruption, as in this case, 
 ild intensify each succeeding effect. A man who becomes 'crazy 
 drunk' reaches this condition by stag< 
 
 Referring to one of the charges requested, but refused, the court 
 said : 
 
 "ft failed to distinguish between a mental unsoundness, the imme- 
 diate re nit <.f <•• - drink, and one by long continued habit, a re-
 
 Sec. 5) INTOXICATION. 179 
 
 mote consequence of it. If one should become voluntarily drunk in 
 the morning, indulging to such excess during the day as to lose all 
 power of controlling the desire for drink, and continuing his excesses 
 at night, until drunk to madness, and in this condition should unlawful- 
 ly slay another, such killing, under the charge requested, would be 
 excusable." 
 
 In his reasons for refusing a new trial the judge said: 
 
 "The accused began drinking immoderately, and was under the 
 influence of liquor to a greater or less degree continually and with- 
 out intermission for two weeks before the homicide, until its effects 
 wore off, after his arrest and incarceration, when he ceased drinking. 
 It makes no difference by what terms you designate the temporary 
 effects of his excesses, whether called an ordinary drunk, drunk to 
 stupefaction, delirium tremens, drunk to frenzy, insanity, etc., if it 
 were the immediate product of this particular debauch, he is respon- 
 sible for his acts under its influence. There was no evidence what- 
 ever that Haab's condition was a remote consequence of long-contin- 
 ued prior excesses, nor that he had ever been in this condition before. 
 In the opinion of the court, at the time of the firing of the fatal shot 
 Haab was not suffering from delirium tremens. He was merely af- 
 flicted with that nervousness that always accompanies immoderate in- 
 dulgence in liquor." 
 
 We have referred to United States v. Drew, cited by counsel, and 
 reported in 5 Mason (U. S.) 29, Fed. Cas. No. 14,993. The accused 
 upon an admitted state of facts was declared insane and discharged. 
 In the course of his opinion in the case, Judge Story &sed the follow- 
 ing language : 
 
 "In general, insanity is an excuse for the commission of every 
 crime, because the party has not the possession of that reason which 
 includes responsibility. An exception is when the crime is commit- 
 ted by a party while in a state of intoxication ; the law not permit- 
 ting a man to avail himself of his own gross vice and misconduct to 
 shelter himself from the legal consequences of such crime. But the, 
 crime must take and be the immediate result of a fit of intoxication, and 
 while it lasts, and not, as in this case, a remote consequence, superin- 
 duced by the antecedent exhaustion of the party arising from gross 
 and habitual drunkenness. However criminal, in a moral point of 
 view, such an indulgence is, and however justly a party may be re- 
 sponsible for his acts arising from it to Almighty God, human tribu- 
 nals are generally restricted from punishing them, since they are not 
 the acts of a reasonable being. Had the crime been committed while 
 defendant was in a fit of intoxication, he would have been liable to 
 be convicted of murder. As he was not then intoxicated, but merely 
 insane from an abstinence from liquor, lie cannot be pronounced guil- 
 ty of the offense. The law looks to the immediate and not to the re- 
 mote cause — to the actual state of the party, and not to the causes 
 which remotely caused it.
 
 ISO INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 "Many species of insanity arise remotely from what, in a moral 
 view, is a criminal negligence or fault of the party, as from religious 
 melancholy, undue exposure, extravagant pride, ambition, etc. Yet 
 such immunity has always been deemed a sufficient excuse for any 
 crime done under its influence." 
 
 We think it fairly appears from the recitals of the accused and 
 those of the judge that the accused was in a state of intoxication at 
 the time of the homicide, and that his mental condition at that time, 
 whatever it might be, was the immediate and direct result, and not 
 the remote result, of voluntary drunkenness. When we say direct 
 and immediate result, we mean to say that it arose during a condition 
 of drunkenness and pending a single, continuing, voluntary, drunken 
 debauch, which at its origin started with the accused in a condition of 
 sanity. The results were in a legal sense immediate and direct results, 
 though the beginning of the drunken debauch may have dated some 
 days back, or even some weeks before the homicide. 
 
 We think, under the recitals in the case, that it is precisely such a 
 one as Mr. Justice Story refers to in which he says: "Insanity, or a 
 condition of mind substantially that of insanity, would not serve as 
 a shelter or a protection against crime." 
 
 We think that this was the view taken by the district judge of the 
 fact and law of the case, a view which he endeavored to place be- 
 fore the jury in his charge. We think he fairly advised the jury as 
 to the law, though there were some expressions in his charge which 
 he might well have omitted, as they doubtless did not instruct, and 
 may perhaps have to some extent confused, the jury. We do not 
 think, however, they were led into error or misled by these expressions, 
 or that they were prejudicial. It is well for a judge, charging a jury 
 as to insanity, to avoid as far as possible the use of technical medical 
 terms as to the various forms and shades of mental disease. 
 
 They are not likely to enlighten or impress the jury, and are very 
 liable to technical objections. 
 
 We do not think there is any ground for the reversal of the judg- 
 ment, and it is hereby affirmed. 
 hearing refused. 
 
 "The Insanity set up as a defense in tills case Is not hereditary or natural, 
 bul voluntary, In the sense of bavlng originated from the use of drugs. While 
 this is an unfortunate and unhappy condition, the law does not, and cannot, 
 rd it wiih the same leniency thai it does cases of adventitious Insanity, 
 in. i caused by the ad of the party himself. Parties who persist in subject- 
 ing themselves to the perslstenl use and habit of taking alcoholic drink, or 
 other poisonous compounds and drugs, cannol exped the same forbearance 
 and Immunity from punisbmenl as those bereft of reason by the acl of God. 
 it is admissible and propi r to show the Immoderate use <>f drugs or whis- 
 ky, mil in excuse crime, bul in illustrate the mental condition, wlth'a view 
 to Axing the degree of the 'Time as ii depends upon deliberation ami cool, 
 maii.ii, us purpose." Wllks, .(.. iii wii.-i.x \. State, 94 Tenn. 122, 28 8. W. 812 
 (18*ji;. But s'e I lannon v. State, ii Tex. Cr. it. igt, 5G s. \v. o5i irjuuj.
 
 
 Sec. 5) INTOXICATION. 1S1 
 
 WHITTEN v. STATE. 
 
 (Supreme Court of Alabama, 1S96. 115 Ala. 72, 22 South. 483.) 
 
 Coleman, J. The defendant was indicted and convicted for an as- 
 sault with intent forcibly to ravish. There was evidence introduced 
 on the trial to show that at the time of the misconduct of the defend- 
 ant he was sober, and there was evidence tending to show that he was 
 drunk. On this phase of the evidence the_ defendant requested the 
 court to give the following charge: "The presumption in this case 
 is that the defendant is innocent until the state has proven beyond all 
 reasonable doubt that he is guilty ; and if the jury have a reasonable 
 doubt, growing out of all the evidence, as to whether he was sufficient- 
 ly sober to form the specific intent to ravish, then the jury cannot find 
 the defendant guilty of an assault with intent to ravish." This charge 
 was refused. We are of opinion the charge should have been given. 
 In order to convict under the statute for an assault with intent to 
 ravish, it is necessary to satisfy the jury beyond a reasonable doubt 
 that the defendant entertained the specific intent charged and made the 
 assault to accomplish the specific purpose. Mere drunkenness does 
 not excuse or palliate an offense, but it may produce a state of mind 
 which incapacitates the party from forming or entertaining a specific 
 intent. If the mental condition is such that a specific intent cannot 
 be formed, whether this condition is caused by drunkenness or other- 
 wise, a party cannot be said to have committed an offense a necessary 
 element of which is that it be done with a specific intent. 1 
 
 The condition of the defendant's mind arising from his voluntary 
 drunkenness was no excuse for the assault, an offense included in 
 that charged. It can only be considered upon the question of his guilt 
 of the statutory offense for which he was indicted, to wit, an assault 
 with intent to forcibly ravish, which involves the condition of the de- 
 fendant's mind. Engelhardt v. State, 88 Ala. 100, 7 South. 154. 
 
 Reversed and remanded. 2 
 
 i Part of the opinion is omitted. 
 Accord : Assault with intent to murder, Crosbv v. People, 137 111. 325, 
 27 N. E. 49 (1S91) ; attempt. Reagan v. State, 28 Tex. App. 227, 12 S. W. 
 601, 19 Am. St. Rep. 833 (1889); bribery. White v. State. 103 Ala. 72. 16 
 South. 63 (1893) ; burglary, State v. Bell, 29 Iowa, 316 (1870) ; Schwabacher 
 v. People, 165 111. 618, 46 N. E. 809 (1S97) ; conspiracy, Booher v. State, 156 
 Ind. 435, 60 N. E. 156, 54 L. R. A. 391 (1901); forgery, People v. Blako. 65 
 Cal. 275, 4 Pac. 1 (1884) ; larceny, Wood v. State, 34 Ark. 341, 36 Am. Rep. 
 13 (1S79) ; Chatham v. State, 92 Ala. 47, 9 South. 607 (1890). 
 
 2 "It appeared from the evidence that the defendant was addicted to the 
 habitual and excessive use of opium in some of its forms, and there was 
 evidence from which it might be inferred that at the time of the supposed 
 larceny he had been deprived of his accustomed supply of the drug. He sought 
 to prove by competent testimony what effect such deprivation would have upon 
 his mental condition, but the evidence was rejected. We think the evidence 
 was competent, as tending to show whether or not he was, at the time, in 
 a condition mentally such as to be able to commit a larceny. The judgment 
 is reversed." Worden, J., in Rogers v. State, 33 Ind. 545 (1S70).
 
 ' 
 
 
 182 
 
 INTENT AS AFFECTED BY CONDITIONS. 
 
 SECTION 6.— INCORPORATION. 
 
 
 (Ch. 5 
 
 ANONYMOUS. 
 (King's Bench, 1702. 12 Mod. 559.) 
 
 Note. — Per Holt, Chief Justice. A corporation is not indictable, 
 but the particular members of it are. 
 
 
 UNITED STATES v. JOHN KELSO COMPANY. 
 
 (United States District Court for California, 1898. 86 Fed. 304.) 
 
 De Haven, District Judge. On October 9, 1897, there was filed 
 in this court by the United States district attorney for this district 
 an information charging the defendant, a corporation, with the vio- 
 lation of "An act relating to the limitation of the hours of daily 
 service of laborers and mechanics employed upon the public works 
 of the United States and of the District of Columbia," approved 
 August 1, 1892 (27 Stat. 310, c. 352 [U. S. Comp. St. 1901, p. 2521] ; 
 2 Supp. Rev. St. p. 62). Upon the filing of this information, the court, 
 upon motion of the district attorney, directed that a summons in 
 the general form prescribed by section 1390 of the Penal Code of 
 this state, be served upon said corporation, and accordingly on said 
 date a summons was issued, directing the defendant to appear before 
 the judge of said court in the courtroom of the United States Dis- 
 trict Court for this district on the 21st day of October, 1897, to air 
 swer the charge contained in the information. The summons stated 
 generally the nature of the charge, and for a more complete state- 
 ment of such offense referred to the information on file. On the day 
 named in said summons for its appearance, the defendant corporation 
 appeared specially by its attorney, and moved to quash the summons, 
 and to set aside the service thereof, upon grounds hereinafter stated. 
 Upon the argument of this motion it was claimed in behalf of the 
 defendant: First, that the act of Congress above referred to does 
 not apply to corporations, because the intention is a necessary ele- 
 ment of the crime therein defined, and a corporation as such is in- 
 capable of entertaining a criminal intention; second, that, conceding 
 that a corporation may be guilty of a violation of said act, Congress 
 has provided no mode for obtaining jurisdiction of a corporation in 
 a criminal proceeding, and for that reason the summons issued by 
 the court was unauthorized by law, and its service a nullity. It will 
 be seen that the firsl objection goes directly to the sufficiency of the 
 information, and presents precisely the same question as would a 
 general demurrer, attacking the information on the ground of an
 
 Sec. 6) INCORPORATION. 183 
 
 alleged failure to charge the defendant with the commission of a 
 public offense. This objection is one which would not ordinarily be 
 considered upon a motion like that now before the court, when the 
 party making the objection refuses to acknowledge the jurisdiction 
 of the court, or to make any other than a special appearance for the 
 purpose of attacking its jurisdiction; but, in view of the conclusion 
 which I have reached upon the second point urged by the defendant, 
 it becomes necessary for me to determine whether the act of Congress 
 above referred to is applicable to a corporation, and whether a cor- 
 poration can be guilty of the crime of violating the provisions of 
 said act. Section 1 of that act makes it unlawful for a contractor or 
 subcontractor upon any of the public works of the United States, 
 whose duty it shall be to employ, direct, or control the services of 
 laborers or mechanics upon such public works, "to require or permit 
 any such laborer or mechanic to work more than eight hours in any 
 calendar day except in case of extraordinary emergency." And 
 section 2 of the act provides "that * * * any contractor whose 
 duty it shall be to employ, direct, or control any laborer or mechanic 
 employed upon any public works of the United States * * * who 
 shall intentionally violate any provision of this act, shall be deemed 
 guilty of a misdemeanor, and for each and every offense shall upon 
 conviction be punished by a fine not to exceed one thousand dollars 
 or by imprisonment for not more than six months, or by both such 
 fine and imprisonment, in the discretion of the court having juris- 
 diction thereof." It will be observed that by the express language 
 of this statute there must be an intentional violation of its provisions, 
 in order to constitute the offense which the statute defines. In view 
 of this express declaration, it is claimed in behalf of defendant that 
 the act is not applicable to corporations, because it is not possible for 
 a corporation to commit the crime described in the statute. The 
 argument advanced to sustain this position is, in substance, this ■ 
 That a corporation is only an artificial creation, without animate 
 body or mind, and therefore, from its very nature, incapable of en- 
 tertaining the specific intention which, by the statute, is made an 
 essential element of the crime therein defined. The case of State v. 
 Manufacturing Co., 20 Me. 41, 37 Am. Dec. 38, supports the proposi- 
 tion that a corporation is not amenable to prosecution for a positive 
 act of misfeasance, involving a specific intention to do an unlawful 
 act, and it must be conceded there are to be found dicta in many 
 other cases to the same effect. In a general sense, it may be said 
 that no crime can be committed without a joint operation of act and 
 intention. In many crimes, however, the only intention required is 
 an intention to do the prohibited act — that is to say, the crime is 
 complete when the prohibited act has been intentionally done; and 
 the more recent and better-considered cases hold that a corporation 
 may be charged with an offense which only involves this kind of in- 
 tention, and may be properly convicted when, in its corporate capacity
 
 184 
 
 INTENT AS AFFECTED BY CONDITIONS. (Cll. 5 
 
 and by direction of those controlling its corporate action, it does the 
 prohibited act. In such a case the intention of its directors that the 
 prohibited act should be done is imputed to the corporation itself. 
 State v. Railroad Co., 23 N. J. Law, 360; Reg. v. Great North of 
 England Ry. Co., 58 E. C. L. 315; Commonwealth v. Proprietors, 2 
 Gray (Mass.) 339. See, also, State v. Railway Co., 15 W. Va. 380, 
 36 Am. Rep. 803. That a corporation may be liable civilly for that 
 class of torts in which a specific malicious intention is an essential 
 element is not disputed at this day. Thus an action for malicious 
 prosecution will lie against a banking corporation. Reed v. Bank, 
 130 Mass. 413, 39 Am. Rep. 468 ; Goodspeed v. Bank, 22 Conn. 530, 58 
 Am. Dec. 439. An action will lie also against a corporation for a 
 malicious libel. Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 
 (U. S.) 202, 16 L. Ed. 73; Maynard v. Insurance Co., 34 Cal. 48, 
 91 Am. Dec. 672. The opinion in the latter case, delivered by Currey, 
 C. J., is an able exposition of the law relating to the liability of cor- 
 porations for malicious libel, in the course of which that learned 
 judge, in answer to the contention that corporations are mere legal 
 entities, existing only in abstract contemplation, utterly incapable of 
 malevolence, and without power to will good or evil, said: 
 
 "The directors are the chosen representatives of the corporation, 
 and constitute, as already observed, to all purposes of dealing with 
 others, the corporation. What they do, within the scope of the ob- 
 jects and purposes of the corporation, the corporation does. If they 
 do any injury to another, even though it necessarily involves in its 
 commission a malicious intent, the corporation must be deemed by 
 imputation to be guilty of the wrong, and answerable for it, as an 
 individual would be in such case." 
 
 The rules of evidence in relation to the manner of proving the fact 
 of intention are necessarily the same in a criminal as in a civil case, 
 and the same evidence which in a civil case would be sufficient to 
 prove a specific or malicious intention upon the part of a corporation 
 defendant would be sufficient to show a like intention upon the part 
 of a corporation charged criminally with the doing of an act pro- 
 hibited by the law. Of course, there are certain crimes of which a 
 corporation cannot be guilty; as, for instance, bigamy, perjury, rape, 
 murder, and other offenses, which will readily suggest themselves to 
 the mind. Crimes like these just mentioned can only be committed 
 by natural persons, mid statutes in relation thereto are for this reason 
 never construed as referring to corporations; but when a statute 
 in general terms prohibits the doing of an act which can be performed 
 by a corporation, and dues not expressly exempt corporations from 
 its provisions, there is no reason why such statute should be construed 
 as not applying to them, when the punishment provided for its in- 
 fraction is one that can lie inflicted upon a corporation — as, for in- 
 stance, a fine. In the act of Congress now under consideration it is 
 made an oft', use for any contractor or subcontractor, whose duty it
 
 Sec. G) INCORPORATION. 1 S.~ 
 
 shall be to employ, direct, or control any laborer employed upon any 
 of the public works of the United States, to require or permit such 
 laborer to work more than eight hours in any calendar day. A cor- 
 poration may be a contractor or subcontractor in carrying on public 
 works of the United States, and as such it has the power or capacity 
 to violate the provision of this law. Corporations are, therefore, 
 within the letter, and, as it is as much against the policy of the law 
 for a corporation to violate these provisions as for a natural person 
 so to do, they are also within the spirit, of this statute; and no rea- 
 son is perceived why a corporation which does the prohibited act 
 should be exempt from the punishment prescribed therefor. If the 
 law should receive the construction contended for by the defendant, 
 the result would be that a corporation, in contracting for the doing 
 of any public work, would be given a privilege denied to a natural 
 person. Such an intention should not be imputed to Congress, un- 
 less its language will admit of no other interpretation. 1 
 The motion of the defendant will be denied. 2 
 
 i Part of the opinion involving another point is omitted. 
 
 2 Accord : Nuisance, Northern Cent. Ry. Co. v. Commonwealth, 90 Pa. 300 
 (1879) ; contempt of court, Telegram Newspaper Co. v. Commonwealth, 172 
 Mass. 294, 52 N. E. 445, 44 L. R. A. 159, 70 Am. St. Rep. 280 (1899). Contra: 
 As to misfeasance, State v. Railroad, 23 Ind. 362 (1864).
 
 186 THE CRIMINAL ACT. (Ch. 6 
 
 CHAPTER VI. 
 
 THE CRIMINAL ACT. 
 
 SECTION 1.— CONCURRENCE OF ACT AND INTENT. 
 
 REGINA v. MATTHEWS. 
 
 (Court of Criminal Appeal, 1873. 12 Cox, C C. 489.) 
 
 Bovill, C. J. 1 We have considered this case, and have come to 
 the conclusion that the conviction must be quashed. The jury have 
 found that at the time the prisoner found the heifers he had reason- 
 able expectation that the owner could be found, and that he did not 
 believe that they had been abandoned by the owner. But at the 
 same time they have found that at the time of finding the heifers the 
 prisoner did not intend to steal them, but that the intention to steal 
 came on him subsequently to the first interview with Stiles. That 
 being so, the case is undistinguishable from Reg. v. Thurborn, 3 Cox, 
 C. C. 453, and the cases which have followed that decision. Not 
 having any intention to steal when he first found them, the presump- 
 tion is that he took them for safe custody, and unless there was 
 something equivalent to a bailment afterwards he could not be con- 
 victed of larceny. On the whole, we think there was not sufficient 
 to make this out to be a case of larceny by a bailee. 
 
 Conviction quashed. 
 
 MILTON v. STATE. 
 
 (Supreme Court of Florida, 1898. 40 Fla. 251, 24 South. fiO.) 
 
 Mabry, J. 2 The following instruction given by the court to the 
 jury was excepted to by defendant, viz.: "If you believe from all 
 the testimony in this case that the defendant was informed that in a 
 certain house an offense was being committed against the ordinances 
 of the city of Tampa, and that the defendant was a policeman of 
 the city of Tampa at the time, then it was his duty, and it was lawful, 
 if not resisted, for him to go into said house for the purpose of pre- 
 venting, or arresting those who might in his presence be guilty of 
 
 i The opinion only Is printed. 
 » Part of the opinion Is omitted.
 
 Sec. 1) CONCURRENCE OF ACT AND INTENT. 187 
 
 a violation of the ordinances of said city; but if you believe from 
 all the evidence in this case that he went to that house in good faith 
 as an officer of the law to enforce the law, and after he got in there 
 violated the law himself, then the law removes its sanction to such 
 entry, and he becomes a trespasser from the beginning." This charge 
 is not correct, and we find no authority to sustain it. The circuit 
 judge must have failed to observe the distinction obtaining in the 
 civil and criminal departments of the law in the application of the 
 rule sought to be invoked in the charge. Mr. Bishop says (1 Crim. 
 Law [8th Ed.] § 208): "In civil jurisprudence we have the rule 
 that when a man does a thing by permission of law — not by license, 
 but by permission of law — and, after proceeding lawfully part way, 
 abuses the liberty the law had given him, he shall be deemed a tres- 
 passer from the beginning by reason of this subsequent abuse. But 
 this doctrine does not prevail in our criminal jurisprudence; for no 
 man is punishable criminally for what was not criminal when done, 
 even though he afterwards adds either the act or the intent, yet not 
 the two together." The cases cited, State v. Moore, 12 N. H. 42, 
 and Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375, sus- 
 tain the text. 
 
 The judgment is reversed, and a new trial awarded. 
 
 REGINA v. SUTTON. 
 
 (Court for Crown Cases Reserved, 1838. 2 Moody, 29.) 
 
 The prisoner was tried before Mr. Baron Alderson at the Spring 
 Assizes for the county of Gloucester, 1838, upon an indictment which 
 contained two counts : First, for stealing a sheep ; secondly, for 
 killing the same with intent to steal the carcass. 
 
 The jury found the prisoner guilty upon the latter count only. 
 
 It appeared that the prisoner was interrupted by the prosecutor, 
 who came into his field whilst the prisoner was in the act of killing 
 the sheep. The sheep, however, had only been wounded in the throat ; 
 the jugular vein being cut on one side of it, but not altogether 
 through. The animal was immediately removed by the prosecutor 
 to his own house, and the wound sewed up ; but it died in two days. 
 
 The jury found the prisoner had given to the sheep a deadly wound, 
 of which it died two days after, with intent to steal the carcass. 
 
 Upon these facts the learned Baron directed them to find a verdict 
 of guilty upon the second count. See Clay's Case, R. & R. 387. 
 
 In Easter Term, 1838, Lord Denman, C. J., Tindal, C. J., Lord 
 Abinger, C. B., Park, J., Littledale, J., Parke, B., Bolland, B., 
 Bosanquet, J., Alderson, B., Patteson, J., Coleridge, J., and Colt- 
 man, J., considered this case, and unanimously held the conviction 
 right. 

 
 18S THE CRIMINAL ACT. (Ch. & 
 
 PINKARD v. STATE. 
 (Supreme Court of Georgia, 1S60. 30 Ga. 757.) 
 
 The plaintiff in error was indicted and found guilty of simple lar- 
 ceny. He moved for a new trial on the following grounds: (4) 1 
 Because the court erred in refusing to charge the jury, as requested 
 by the counsel for defendant in writing, that if they, the jury, be- 
 lieve' from the evidence that Pinkard, the defendant, did agree with 
 Perry and Axon to steal the negro woman belonging to Brinsfield, 
 yet if they believe that Pinkard abandoned the purpose, and went off 
 and did not participate in the crime, then the jury must find the 
 defendant not guilty. 
 
 Lumpkin, J. We think the fourth charge should have been given. 
 The law as well as the gospel allows a place of repentance, and, not- 
 withstanding the accused may at one time have agreed to engage in 
 this crime, yet, if he afterwards changed his mind and abandoned 
 that intention, he is not guilty; and there was proof in that case to 
 warrant a charge to that effect. 
 
 SECTION 2.— SUFFICIENCY OF THE ACT. 
 I. Solicitation. 
 
 I '"' 
 
 BACON'S CASE. 
 
 (King's Bench, 1GG4. Lev. 14G.) 
 
 He was indicted for intending to murder the Master of the Rolls, 
 and for offering £100 to J. S. to do it; and saying, That, if he would 
 not, he would do it himself; and he being convicted, it was moved 
 that this intent only was not indictable: But the Court to the con- 
 trary said : "Anciently the will was reputed or taken for the deed 
 in matters of felony, and tho' it is not so now, yet it is an offense 
 and finable ; and they fined him 1000 marks, three months' imprison- 
 ment, and to find sureties of good behavior during life." 2 
 
 i Part of this case Is omitted. 
 
 2 "in Borne fear Books ><f (lie fourteenth century we find our lawyers ap- 
 pealing to a * * * dangerous maxim, 'Voluntas reputaibltur pro facto.' 
 Coke, Third instit 5; 2 Stephen, Hist. Crlm. Law, 222. This was, we 
 believe, due to the fad that, owing t<> t )><> disuse <>f appeals, our criminal 
 law bad become far to<> lenlenl In cases of murderous assaults which did not 
 cause death. We • • ♦ believe thai the adoption, even for one limited 
 purpose, of this perilous saying was bul ;> momentary aberration. Our old 
 law started from the other extreme: 'Factum reputahitur pro voiuntate.'" 
 2 Pollock & Maltland's Hi I Eng. Law, p. ITT., note.
 
 Sec. 2) SUFFICIENCY OF THE ACT. 189 
 
 REX v. HIGGINS. 
 
 (King's Bench, 1801. 2 East, 5.) 
 
 The defendant was indicted for a misdemeanor at the quarter ses- 
 sions for the county of Lancaster, and was convicted on the second 
 count of the indictment, charging, "That he on," etc., "at" etc., "did 
 falsely, wickedly, and unlawfully solicit and incite one James Dixon, 
 a servant of J. Phillips," etc., "to take, embezzle, and steal a quantity 
 of twist, of the value of three shillings, of the goods and chattels of 
 his master, J. P.," etc., "aforesaid, to the great damage of the said 
 J. P.," etc., "to the evil example," etc., "and against the peace," etc. 
 After judgment of the pillory and two years' imprisonment, a writ 
 of error was brought, and the following causes assigned for error: 
 (1) That the said count does not set forth any misdemeanor or of- 
 fense which the justices of peace at their quarter sessions had juris- 
 diction to determine. 1 
 
 The case was twice argued — first in Trinity term last by Scarlett 
 for the defendant and Cross for the crown, and now Topping for 
 the defendant and Christian for the crown. 
 
 LE Blanc, J. It is contended that the offense charged in the sec- 
 ond count, of which the defendant has been convicted, is no misde- 
 meanor, because it amounts only to a bare wish or desire of the mind 
 to do an illegal act. If that were so, I agree that it would not be in- 
 dictable. But this is a charge of an act done, namely, an actual solic- 
 itation of a servant to rob his master, and not merely a wish or desire 
 that he should do so. A_solicitation or inciting of another, by what- 
 ever means it is attempted, is an act done ; and that such an act done 
 with a criminal intent is punishable by indictment has been clearly 
 established by the several cases referred to. The cases of R. v. Daniel 
 and R. v. Callingwood, cited for the defendant, do not support th° 
 proposition that a mere solicitation is not indictable. On the contrary, 
 Lord Holt says in the former case (6 Mod. 101) that perhaps an in- 
 dictment might be for the evil act of persuading another to steal. That 
 part of the case, however, was determined upon the want of a venue. 
 And in R. v. Callingwood, 2 Ld. Raym. 1116, the only point determin- 
 ed was that the first part of the charge, which was for enticing an ap- 
 prentice to take and carry away goods from his master, was not in- 
 dictable, being only a private injury for which an action on the case 
 would lie, but not of such a public nature as to maintain an indictment, 
 and that the second part of the charge was not well laid for want of a 
 venue. 
 
 Judgment affirmed. 2 
 
 i Part of this case is omitted. 
 
 2 Kenyon, C. J., and Grose and Lawrence, JJ., delivered concurring opinions.
 
 
 190 THE CRIMINAL ACT. (Ch. 6 
 
 COMMONWEALTH v. HUTCHINSON. 
 (Superior Court of Pennsylvania, 1898. 6 Pa. Super. Ct. 405.) 
 
 Smith, J. The defendant was convicted and sentenced on the 
 charge of soliciting one Robert Williams to burn a store building. 1 
 
 It is contended, on the part of the defense, that solicitation to com- 
 mit a misdemeanor is not indictable, and that, as the indictment 
 charges only such solicitation, it sets forth no criminal offense. 
 
 There seems no question that solicitation to commit a felony is a 
 misdemeanor. Rex v. Higgins, 2 East, 5; Rex v. Hickman, 1 
 Moody, 3-4 ; Reg. v. Quail, 4 F. & F. 1076 ; State v. Avery, 7 Conn. 
 266, 18 Am. Dec. 105; People v. Bush, 4 Hill (N. Y.) 133; Com- 
 monwealth v. McGill et al., Add. (Pa.) 21; State v. Bowers, 35 S. 
 C. 262, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. Rep. 847. This, 
 however, cannot be affirmed of the broad proposition that solicitation 
 to commit a misdemeanor is itself a misdemeanor. On the contrary, 
 it seems clear that with respect to various misdemeanors, involving 
 little or no moral turpitude or prejudice to society, solicitation to 
 their commission is not in law an offense. It is equally clear that as to 
 certain others it is an offense. The cases cited in Wharton's Criminal 
 Law, § 179, show that such solicitations are indictable "when their 
 object is interference with public justice, as when a resistance to the 
 execution of a judicial writ is counseled, or perjury is advised, or 
 the escape of a prisoner is encouraged, or the corruption of a public 
 officer is sought, or is invited by the officer himself." In Rex v. 
 Phillips, 6 East, 464, it was held that solicitation to commit a misde- 
 meanor of an evil and vicious nature was indictable. The authorities 
 collected in the notes to Washington v. Butler, 8 Wash. 194, 35 Pac. 
 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900, embrace cases in which 
 it was held indictable to solicit another to make a plate for counter- 
 feiting bills of exchange, to commit assault and battery, or to commit 
 perjury. There is also a class of cases frequently referred to in the 
 discussion of this question, but really without bearing on it: Solicita- 
 tions accompanied with the offer of a bribe, of which Rex v. Plymp- 
 ton, 2 Ld. k.ivmond, 1377, and Rex v. Vaughan, 4 Burr. 2494, are 
 leading instances. In these the act sought was lawful. The offer of 
 a bribe to influence its performance was the unlawful feature. 
 
 The adjudications by the highest court of our own slate, on the 
 subject of solicitation to commit crime, touch it only at two points. 
 They decide that it is a misdemeanor to solicit the commission of 
 murder, Stabler v. Common wealth, 95 Pa. 318, 40 Am. Rep. 653; 
 Commonwealth v. Randolph, 116 Pa. 8:;, 23 Ail. 388, 28 Am. St. 
 Rep. 782; and thai solicitation to commit fornication or adultery is 
 not indictable, Smith v. Commonwealth, 54 Pa. 209, 93 Am. Dec. 686. 
 
 i The Indictment and pari or the opinion relating to a question of evi- 
 dent *■ are omitted.
 
 Sec. 2) SUFFICIENCY OF THE ACT. 191 
 
 The latter case does not, however, go to the length of declaring that 
 solicitation to commit a misdemeanor is not a misdemeanor. No gen- 
 eral rule on the subject was there laid down. The decision was bas- 
 ed on the difficulty of defining the particular offense charged in the 
 case, of determining "what expressions of the face or double enten- 
 dres of the tongue, what freedom of manners, are to be adjudged 
 solicitation," and on the principle that "a rule of law which should 
 make mere solicitation to fornication or adultery indictable would be 
 an impracticable rule, one that in the present usages and manners of 
 society would lead to great abuses and oppressions." It may be added 
 that the act charged was one that tended only to secret immorality by 
 the parties immediately involved, and not directly to the public prej- 
 udice. 
 
 In the broad field lying between the extremes thus adjudicated, our 
 guide must be found in the principles that underlie our Criminal Code. 
 To reach just conclusions, we must pursue the method thus laid down 
 by Mr. Justice Paxson in Commonwealth v. McHale, 97 Pa. 397, 39 
 Am. Rep. 808, and applied in that case: "We must look beyond the 
 cases and examine the principles upon which common-law offenses 
 rest. It is not so much a question whether such offenses have been 
 punished as whether they might have been. * * * We are of 
 opinion that all such crimes as especially affect public society are in- 
 dictable at common law. The test is, not whether precedents can be 
 found in the books, but whether they injuriously affect the public 
 police and economy." 
 
 The distinction, sometimes attempted, between solicitation to com- 
 mit a felony and to commit a misdemeanor, is based on an artificial, 
 and not an intrinsic difference. It has received comparatively slight 
 judicial recognition. In Reg. v. Ransford, 13 Cox, C. C. 9, it was de- 
 clared to be without foundation. Indeed, the statutory classification 
 of crime as felony or misdemeanor is governed by no fixed or definite 
 principle, but is purely arbitrary. Legislative whim or caprice may 
 alone determine in which category an offense, not a felony at com- 
 mon law, shall be placed. There is no reason, arising from the nature 
 of the offenses, why the burning of another's house shall be classed as 
 a felony, and the burning of one's own house or other building with in- 
 tent to defraud insurers, as a misdemeanor ; why the larceny of money 
 shall be pronounced a felony, and its embezzlement only a misdemean- 
 or; why it shall be deemed a felony to make counterfeit coin, and but 
 a misdemeanor to utter it, or a felony to attempt to utter a counterfeit 
 bank note, and only a misdemeanor to utter counterfeit coin ; why the 
 possession of ten counterfeit bank notes, with intent to utter them, 
 shall be declared a felony, and the forgery of a deed merely a mis- 
 demeanor; or why the forgery of a bank check shall be made a 
 felony, and the forgery of a promissory note but a misdemeanor. 
 With respect to the public police and economy, and the general inter- 
 ests of society, there are misdemeanors more pernicious in effect than
 
 192 
 
 THE CRIMINAL ACT. 
 
 (Ch. 6 
 
 some of the felonies. As to the mode and incidents of trial there is no 
 distinction, except as between offenses triable exclusively in the oyer 
 and terminer and those within the jurisdiction of the quarter ses- 
 sions. As to punishment, trial for misdemeanor may subject the de- 
 fendant to punitive consequences more serious than those to which 
 he is exposed in trial for many of the felonies, since the penalty is 
 often more severe, and, even if acquitted, the costs may be imposed 
 upon him. It is obvious that, with respect to the majority of criminal 
 offenses, the distinction between felonies and misdemeanors rests on 
 no substantial basis, and that the classification of an offense as a 
 felony or a misdemeanor affords no just criterion for determining 
 whether solicitation to its commission is indictable. Under such a 
 test, one may be punished for soliciting the theft of the most trifling 
 chattel, or the burning of the most worthless dwelling, yet may with 
 impunity incite to the embezzlement of millions, or to the laying in 
 ashes of the largest manufactories, or the entire business quarter of 
 a city. The only practical and reasonable test is that stated and ap- 
 lied in Commonwealth v. McHale, supra — the manner in which the 
 act may "affect the public police and economy" ; and the only logical 
 conclusion is that all acts which "especially affect public society," to 
 its injury, are criminal. The act for which the defendant is here in- 
 dicted, as thus affecting public society, is the solicitation described 
 in the indictment. 
 
 Argument is scarcely needed to demonstrate that the solicitation 
 charged in the present case is of a character to injuriously affect pub- 
 lic society and the public police and economy. Except solicitations 
 to murder and riot, nothing is more calculated to disorder and ter- 
 rorize society than incitements to incendiarism. Such incitement is a 
 direct blow at security of property, and even of life. It must there- 
 fore be pronounced an indictable offense. 
 
 The judgment of the court below is affirmed. 2 
 
 
 
 II. Attempt. 
 PEOPLE v. MURRAY. 
 
 (Supreme Court of California, 1859. 14 Cal. 1H0.) 
 
 Iml.i.u, C. J., delivered the opinion of the court — Cope, J., and 
 ]'. ■ i.nwix, ]., concurring." 
 
 Tin- eviden ce in th • entirely fails to sustain the charge against 
 
 the defendant of an attempt to contract an incestuous marriage with 
 niece. It only < ; s" declarations of his determination to con- 
 
 tract the marriage", his elopement with the niece for that avowed pur- 
 
 < ■ i immonwealth v, Wlllard, 22 riri;. (Mass.) -17C (1839). 
 8 The opinion only is printed
 
 Sec. 2) SUFFICIENCY OF THE ACT. 193 
 
 pose, and his request to one of the witnesses to go for a magistrate 
 to perform the ceremony. It shows very clearly the intention of 
 the defendant, but something more than mere intention is necessary 
 to constitute the offense charged. Between preparation for the at- 
 tempt and the attempt itself there is a wide difference. The preparation 
 consists in devising or arranging the means or measures necessary for 
 the commission of the offense. The attempt is the direct movement to- 
 ward the commission after the preparations are made. To illustrate : A 
 party may purchase and load a gun, with the declared intention to 
 shoot his neighbor; but until some movement is made to use the 
 weapon upon the person of his intended victim there is only prepara- 
 tion, and not an attempt. For the preparation, he may be held to 
 keep the peace; but he is not chargeable with any attempt to kill. 
 So, in the present case, the declarations, and elopement, and request 
 for a magistrate were prepaiatory to the marriage; but until the 
 officer was engaged, and the parties stood before him, ready to take 
 the vows appropriate to the contract of marriage, it cannot be said 
 in strictness, that the attempt was made. The attempt contemplated 
 by the statute must be manifested by acts which would end in the 
 consummation of the particular offense, but for the intervention of 
 circumstances independent of the will of the party. 
 Judgment reversed, and cause remanded. 
 
 STATE v. HURLEY. 
 
 (Supreme Court of Vermont, 1906. 79 Vt. 28, 64 Atl. 78, 6 L. It. A. [N. S.] 
 
 804, 118 Am. St. Rep. 934.) 
 
 Munson, J., delivered the opinion of the court. 
 
 The respondent is informed against for attempting to break open 
 the jail in which he was confined, by procuring to be delivered into 
 his hands 12 steel hack saws, with an intent to break open the jail 
 therewith. The state's evidence tended to show that, in pursuance 
 of an arrangement between the respondent and one Tracy, a former 
 inmate, Tracy attempted to get a bundle of hack saws to the re- 
 spondent by throwing it to him as he sat behind the bars at an open 
 window, and that the respondent reached through the bars and got 
 the bundle into his hands, but was ordered at that moment by the 
 jailer to drop it, and did so. The court charged, in substance, that 
 if the respondent arranged for procuring the saws, and got them into 
 his possession with an intent to break open the jail for the purpose 
 of escaping, he was guilty of the offense alleged. The respondent 
 demurred to the information, and excepted to the charge. Bishop 
 defines a criminal attempt to be "an intent to do a particular criminal 
 thing, with an act toward it falling short of the thing intended." 2 
 Crim. Law, § 728. The main difficulty in applying this definition j 
 Mik.Cb.L.— 13 
 
 1/
 
 194 THE CRIMINAL ACT. (Ch. 6 
 
 lies in determining the relation which the act done must sustain to 
 the completed offense. That relation is more fully indicated in the 
 following definition given by Stephen : "An attempt to commit a 
 crime is an act done with intent to commit that crime, and forming 
 a part of a series of acts which would constitute its actual commission 
 if it were not interrupted." Dig. Crim. Law, 33. All acts done in 
 preparation are, in a sense, acts done towards the accomplishment 
 of the thing contemplated. But most authorities certainly hold, and 
 many of them state specifically, that the act must be something more 
 than mere preparation. Acts of preparation, however, may have 
 such proximity to the place where the intended crime is to be com- 
 mitted, and such connection with a purpose of present accomplish- 
 ment, that they will amount to an attempt. See note to People v. 
 Moran (N. Y.) 20 Am. St. Rep. 741; People v. Stites, 75 Cal. 570, 
 17 Pac. 693; People v. Lawton, 56 Barb. (N. Y.) 126. 
 
 Various rules have been formulated in elucidating this subject. 
 Some acts toward the commission of the crime are too remote for 
 the law to notice. The act need not be the one next preceding that 
 needed to complete the crime. Preparations made at a distance from 
 the place where the offense is to be committed are ordinarily too 
 remote to satisfy the requirement. 1 Bishop, Crim. Law, §§ 759, 
 762 (4), 763. The preparation must be such as would be likely to 
 end, if not extraneously interrupted, in the consummation of the 
 crime intended. 3 Am. & Eng. Enc. Law (2d Ed.) p. 266, note 7. 
 The act must be of such a character as to advance the conduct of the 
 actor beyond the sphere of mere intent. It must reach far enough 
 towards the accomplishment of the desired result to amount to the 
 commencement of the consummation. Hicks v. Commonwealth, 86 
 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. S91. But after all that has 
 been said the application is difficult. One of the best known cases 
 where acts of preparation were held insufficient is People v. Murray, 
 14 Cal. 159, which was an indictment for an attempt to contract an 
 incestuous marriage. There the defendant had eloped with his niece 
 with the avowed purpose of marrying her, and had taken measures 
 to procure the attendance of a magistrate to perform the ceremony. 
 In disposing of the case, Judge Field said: "Between preparations 
 for the attempt and the attempt itself there is a wide difference. The 
 preparation consists in devising or arranging the means or measures 
 necessary for the commission of the offense. The attempt is the 
 direct movement toward the commission after the preparations are 
 made." Mr. Bishop thinks this case is near the dividing line, and 
 doubts if it will be followed by all courts. 1 Crim. Law, § 763 (3). 
 Mr. Wharton lers the holding an undue extension of the doc- 
 
 trine that preliminary preparations are insufficient. Crim. Law, 181, 
 note. But the ca e ha been cited with approval by courts of high 
 standing. The exact inquiry pi' ented by the ease before us is wheth- 
 er the procurement of the means of committing the offense is to be
 
 Sec. 2) 
 
 SUFFICIENCY OF THE ACT. 
 
 195 
 
 treated as a preparation for the attempt, or as the attempt itself. 
 In~considering this question, it must be remembered that there are 
 some acts, preparatory in their character, which the law treats as 
 substantive offenses; for instance, the procuring of tools for the pur- 
 pose of counterfeiting, and of indecent prints with intent to publish 
 them. Comments upon cases of this character may lead to confusion, 
 if not correctly apprehended. Wharton, Crim. Law, § 180, and note 1. 
 
 The case of Griffin v. State, 26 Ga. 493, cited by the respondent, 
 cannot be accepted as an authority in his favor. There the defend- 
 ant was charged with attempting to break into a storehouse with 
 intent to steal, by procuring an impression of the key to the lock 
 and preparing from this impression a false key to fit the lock. The 
 section of the Penal Code upon which the indictment was based 
 provides for the indictment of any one who "shall attempt to commit 
 an offense prohibited by law, and in such an attempt shall do any 
 act toward the commission of such offense." The court considered 
 that the General Assembly used the word "attempt" as synonymous 
 with "intend," and that the object of the enactment was to punish 
 "intents," if demonstrated by an act. The court cited Rex v. Sutton ; 
 2 Strange, 1071, as a strong authority in support of the indictment. 
 There the prisoner was convicted for having in his possession iron 
 stamps, with intent to impress the scepter on sixpences. This was 
 not an indictment for any attempt, but for the offense of possessing 
 tools for counterfeiting with intent to use them. The Georgia court, 
 by its construction of the statute, relieved itself from the distinction 
 between "attempts" and crimes of procuring or possessing with un- 
 lawful intent. 
 
 The act in question here is the procuring by a prisoner of tools 
 adapted to jail-breaking. That act stands entirely unconnected with 
 any further act looking to their use. It is true that the respondent 
 procured them with the design of breaking jail. But he had not 
 put that design into execution, and might never have done so. He 
 had procured the means of making the attempt, but the attempt it- 
 self was still in abeyance. Its inauguration depended upon the choice 
 of an occasion and a further resolve. That stage was never reached, 
 and the procuring of the tools remained an isolated act. To con- 
 stitute an attempt, a preparatory act of this nature must be connected 
 with the accomplishment of the intended crime by something more 
 than a general design. 
 
 Exceptions sustained, judgment and verdict set aside, demurrer 
 sustained, information held insufficient and quashed, and respondent 
 discharged. 
 
 
 ■ 

 
 
 106 THE CKIMIXAL ACT. (Cll. 6 
 
 CLARK v. STATE. 
 (Supreme Court of Tennessee, 1SS8. 86 Tenn. 511, 8 S. W. 145.) 
 
 Folkes, J. This is an indictment for attempt to commit a larceny. 
 There was a conviction and sentence of one year in the penitentiary. 
 Motion for new trial and in arrest of judgment being made and over- 
 ruled, the defendant has appealed in error. 1 
 
 The next error assigned is to the charge of the court in this : "If 
 his purpose was to steal when he opened the drawer, and his opening 
 it was a part of the act designed by him for getting possession of the 
 prosecutor's money, he would be guilty of an attempt to commit lar- 
 ceny, even though at that particular time there was no money in the 
 cash drawer." 
 
 The proof shows that the defendant was detected by the prosecu- 
 tor in the act of opening the cash drawer of the latter's store, having 
 thrown himself across the counter for that purpose, he being alone in 
 the front part of the store at the time; the prosecutor being in the 
 rear waiting on a customer, and being hidden from defendant's view 
 by a screen. When thus detected, and hallooed at by the prosecutor, 
 the defendant hurriedly left the store. 
 
 The proof leaves it in doubt whether or not there was any money 
 in this particular drawer at the time the attempt was made. It was 
 early in the morning, and the drawer had been emptied the evening 
 before. 
 
 The court had stated to the jury that the state claimed that there 
 was money in the drawer at the time of the alleged attempt, and that 
 this was denied by the defendant, and that this was one of the ques- 
 tions of fact that they must determine, and that they must determine 
 from the proof what was the purpose and intention of the prisoner 
 in opening the cash drawer; and if they found that the defendant be- 
 lieved there was money or other valuables in said drawer, and his 
 purpose in opening the same was to steal its contents, then he would 
 be guilty of an attempt to commit larceny, whether there was money 
 or other valuables in the drawer at the time or not. 
 
 There is no error in this record. The act averred and proven is 
 sufficient. 
 
 The direct question here presented has never been passed upon by 
 this court, bul it is by no means one without authority. It has re- 
 ceived much discussion in the text-books and in the adjudged cases 
 from other courts. 
 
 The English cases are conflicting. In Reg. v. Collins, Leigh & 
 C. Ill, it was held there could be no attempt to pick the pocket of a 
 person who had no money at the lime in her pocket; while in Reg. 
 v. Goodhall, 1 Den. C. C. 187, it was held an attempt to produce a 
 
 i Part of the opinion Is omitted.
 
 Sec. 2) SUFFICIENCY OF THE ACT. 107 
 
 miscarriage could be committed on a woman supposed to be, but not 
 in fact, pregnant. 
 
 It appears to us that these cases cannot be reconciled, although Mr. 
 Heard, in his second edition of Leading Criminal Cases (volume 
 2, pp. 482, 483), has attempted to do so. We are constrained to agree 
 with Mr. Bishop that "these differing opinions must have sprung 
 from opposite views in the two benches of judges." See Bishop's 
 Cr. Law (7th Ed.) § 741, note 1. 
 
 The American cases seem to be uniform, or at least substantially 
 so, for here the few conflicts are more apparent than real. 
 
 In Rogers v. Commonwealth, 5 Serg. & R. 463, the Pennsylvania 
 court held that an indictment for assault with intent to steal from the 
 pocket is good, though it contains no setting out of anything in the 
 pocket to be stolen. Duncan, J., in delivering the opinion of the 
 court, said: "The intention of the person was to pick the pocket of 
 whatever he found in it; and, although there might be nothing in the 
 pocket, the intention to steal is the same." 
 
 So in Massachusetts, under a statute differing in terms but the 
 same in substance as our own hereinabove quoted, it was held that the 
 indictment need not allege, and the prosecutor need not prove, that 
 there was in the pocket anything which could be the subject of lar- 
 ceny. Commonwealth v. McDonald, 5 Cush. 365. See, also, Com- 
 monwealth v. Jacobs, 9 Allen, 274. 
 
 To the same effect is State v. Wilson, 30 Conn. 500. 
 
 So in Indiana it has been held that an assault on one with intent to 
 rob him of his money may be committed, though he has no money in 
 possession at the time. Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 
 22. 
 
 If an indictment for an intent to steal the contents of a trunk or 
 room would not be good, where it transpired that there was nothing 
 in the trunk or room, then it would seem to follow that the indictment, 
 in case where there were goods in the trunk or room, would have to 
 allege what particular goods the thief purposed to steal ; and, if nec- 
 essary to allege, it is necessary to prove, and how could this be proven 
 where there was a variety of different goods, and the thief was ar- 
 rested before he had laid hands upon any article ? 
 
 Again, if a thief is caught with his hand in your pocket before he 
 can grasp any of its contents, and it is found that the pocket contains 
 both money and a watch, how can it be proven that he intended to 
 steal both, and, if not both, which? 
 
 And in the case last put, is there any more of an attempt to steal, 
 the thief being ignorant of the presence of the watch or money, than 
 there would had he, with similar intent and ignorance, placed his hand 
 in an empty pocket? 
 
 In each case there is the substantive and distinct offense as pre- 
 scribed by the statute. There is the criminal intent, and an effort 
 made to carry out the intent to the point of completion, interrupted
 
 198 THE CRIMINAL ACT. (Cll. 6 
 
 by some unforeseen inpediment or lack outside of himself, special to 
 the particular case and not open to observation, intervening to pre- 
 vent success without the abandonment of effort or change of purpose 
 on the part of the accused. 
 
 As said by Mr. Bishop: "It being accepted truth that the defend- 
 ant deserves punishment by reason of his criminal intent, no one can 
 seriously doubt that the protection of the public requires the punish- 
 iment to be administered, equally whether, in the unseen depth of the 
 pocket, etc., what was supposed to exist was really present or not." 1 
 Bishop, Cr. Law, § 741. 
 
 The community suffers from the mere alarm of crime. 
 
 Again: "Where the thing intended (attempted) is a crime, and 
 what is done is of a sort to create alarm — in other words, excite ap- 
 prehension that the evil intended will be carried out— the incipient 
 act which the law of attempt takes cognizance of is in reason com- 
 mitted." 1 Bishop, Cr. Law, § 742. 
 
 The true legal reason for the conclusion reached is that the defend- 
 ant, with criminal intent, has performed an act tending to disturb 
 the public repose. Id. § 744. 
 
 Mr. Wharton's views on this at one time perplexing question are 
 in accord with Mr. Bishop. See 1 Whart. Cr. Law (9th Ed.) §§ 182, 
 183, 185, 186, and 192. 
 
 Let the judgment be affirmed. 2 
 
 PEOPLE v. JAFFE. 
 
 (Court of Appeals of New York, 1906. 185 N. Y. 497, 78 N. E. 169, 9 L. R. 
 
 A. [N. S.] 203). 
 
 Willard Bartlett, J. 8 The indictment charged that the defendant 
 on the 6th day of October, 1902, in the county of New York, feloni- 
 ously received 20 yards of cloth, of the value of 25 cents a yard, be- 
 longing to the copartnership of J. W. Goddard & Son, knowing that 
 the said property had been feloniously stolon, taken and carried away 
 
 See, also, State v. Glover, 27 s. C. 602, 4 S. E. 504 (1SSS); Teopie v. 
 Mora ii. 128 N. Y. 254. 25 N. B. 412. 10 L. E. A. 109, 20 Am. St. Rep. 732 
 (1890). 
 
 "If an assault should be made on a man dressed as a woman, with Intent 
 to ravish, the assailant believing the person assaulted to be a woman, be could 
 
 be convicted of an i mpt to ravish, because In such a case the com- 
 
 Ion "i the 'Tin I rape would be b legal Impossibility." Follett, J., In 
 
 People v. Gardner, 78 Bun, 86, 26 N. Y. Supp. 1072 (1893). 
 
 "if I, believing thai tbere is a person In an adjoining room, when in fact 
 
 there is no one there, fire a pistol through the doorway with the Intention 
 
 • i tilling iiini, I have committed no act cognizable toy the criminal law." 
 
 Pollock, O. B., arguendo, In Reg. v. Gaylor, Dears. & B 282 (1867). Of. People 
 
 i ee Kong, 96 Oal. 866, 80 Pac, soo, 17 L. R. A. 626, 29 Am. St. Rep. 105 
 
 ( 1 8) l 
 
 i The opinion only is printed.
 
 Sec. 2) SUFFICIENCY OF THE ACT. 109 
 
 from the owners. It was found under section 550 of the Penal Code, 
 which provides that a person who buys or receives any stolen prop- 
 erty knowing the same to have been stolen is guilty of criminally 
 receiving such property. The defendant was convicted of an attempt 
 to commit the crime charged in the indictment. The proof clearly 
 showed, and the district attorney conceded upon the trial, that the 
 goods which the defendant attempted to purchase on October 6, 
 1902, had lost their character as stolen goods at the time when they 
 were offered to the defendant and when he sought to buy them. In 
 fact, the property had been restored to the owners, and was wholly 
 within their control, and was offered to the defendant by their au- 
 thority and through their agency. The question presented by this 
 appeal, therefore, is whether, upon an indictment for receiving goods 
 knowing them to have been stolen, the defendant may be convicted 
 of an attempt to commit the crime where it appears without dispute 
 that the property which he sought to receive was not in fact stolen 
 property. 
 
 The conviction was sustained by the Appellate Division chiefly 
 upon the authority of the numerous cases in which it has been held 
 that one may be convicted of an attempt to commit a crime notwith- 
 standing the existence of facts unknown to him which would have 
 rendered the complete perpetration of the crime itself impossible. Not- 
 ably among these are what may be called the "Pickpocket Cases." 
 where, in prosecutions for attempts to commit larceny from the per- 
 son by pocket-picking, it is held not to be necessary to allege or 
 prove that there was anything in the pocket which could be the sub- 
 ject of larceny. Commonwealth v. McDonald, 5 Cush. (Mass.) 365; 
 Rogers v. Commonwealth, 5 Serg. & R. (Pa.) 463; State v. Wilson, 
 30 Conn. 500; People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 
 L. R. A. 109, 20 Am. St. Rep. 732. Much reliance was also placed 
 in the opinion of the learned Appellate Division upon the case of 
 People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 
 43 Am. St. Rep. 741, where a conviction of an attempt to commit the 
 crime of extortion was upheld, although the woman from whom 
 the defendant sought to obtain money by a threat to accuse her of 
 a crime was not induced to pay the money by fear, but was acting 
 at the time as a decoy for the police, and hence could not have been 
 subjected to the influence of fear. In passing upon the question here 
 presented for our determination, it is important to bear in mind 
 precisely what it was that the defendant attempted to do. He simply 
 made an effort to purchase certain specific pieces of cloth. He be- 
 lieved the cloth to be stolen property, but it was not such in fact. 
 The purchase, therefore, if it had been completely effected, could not 
 constitute the crime of receiving stolen property knowing it to be 
 stolen, since there could be no such thing as knowledge on the part 
 of the defendant of a nonexistent fact, although there might be a 
 belief on his part that the fact existed. As Mr. Bishop well says, it
 
 200 THE CRIMINAL ACT. (Cll. 6 
 
 is a mere truism that there can be no receiving of stolen goods which 
 have not been stolen. 2 Bishop, New Crim. Law, § 11-10. It is 
 equally difficult to perceive how there can be an attempt to receive 
 stolen goods, knowing them to have been stolen, when they have not 
 been stolen in fact. 
 
 The crucial distinction between the case before us and the pick- 
 pocket cases, and others involving the same principle, lies, not in 
 the possibility or impossibility of the commission of the crime, but 
 in the fact that in the present case the act which it was doubtless the 
 intent of the defendant to commit would not have been a crime if 
 it had been consummated. If he had actually paid for the goods 
 which he desired to buy and received them into his possession, he 
 would have committed no offense under section 550 of the Penal 
 Code, because the very definition in that section of the offense of 
 criminally receiving property makes it an essential element of the 
 crime that the accused shall have known the property to have been 
 stolen or wrongfully appropriated in such a manner as to constitute 
 larceny. This knowledge being a material ingredient of the offense, 
 it is manifest that it cannot exist unless the property has in fact been 
 stolen or larcenously appropriated. No man can know that to be so 
 which is not so in truth and in fact. He may believe it to be so, but 
 belief is not enough under the statute. In the present case it appeared, 
 not only by the proof, but by the express concession of the prosecut- 
 ing officer, that the goods which the defendant intended to purchase 
 had lost their character as stolen goods at the time of the proposed 
 transaction. Hence, no matter what was the motive of the defendant, 
 and no matter what he supposed, he could do no act which was in- 
 trinsically adapted to the then present successful perpetration of the 
 crime denounced by this section of the Penal Code, because neither 
 he nor any one in the world could know that the property was stolen 
 property, inasmuch as it was not, in fact, stolen property. In the 
 pickpocket cases the immediate act which the defendant had in con- 
 templation was an act which, if it could have been carried out, would 
 have been criminal ; whereas in the present case the immediate act 
 which the defendant had in contemplation (to wit, the purchase of 
 the goods which were brought to his place for sale) could not have 
 been criminal under the statute, even if the purchase had been com- 
 pleted, because the goods had not in fact been stolen, but were, at the 
 time when they were offered to him, in the custody and under the 
 control of the true owners. 
 
 If all which an accused person intends to do would, if done, con- 
 stitute no crime, it cannot be a crime to attempt to do with the same 
 purpose a part of the thing intended. 1 Bishop's Crim. Law (7th 
 Ed.) § 717. The crime of which the defendant was convicted neces- 
 sarily consists of three elements: First, the act; second, the intent; 
 and, third, the knowledge of an existing condition. There .was proof 
 tending to establish two of these elements, the first and second, but
 
 Sec. 2) SUFFICIENCY OF THE ACT. 201 
 
 none to establish the existence of the third. This was knowledge 
 of the stolen character of the property sought to be acquired. There 
 could be no such knowledge. The defendant could not know that 
 the property possessed the character of stolen property when it had 
 not in fact been acquired by theft. The language used by Ruger, 
 C. J., in People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 
 109, 20 Am. St. Rep. 732, quoted with approval by Earl, J., in People 
 v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. 
 St. Rep. 741, to the effect that "the question whether an attempt to 
 commit a crime has been made is determinable solely by the condition 
 of the actor's mind and his conduct in the attempted consummation 
 of his design," although accurate in those cases, has no application 
 to a case like this, where, if the accused had completed the act which 
 he attempted to do, he would not be guilty of a criminal offense. A 
 particular belief cannot make that a crime which is not so in the 
 absence of such belief. Take, for example, the case of a young man 
 who attempts to vote, and succeeds in casting his vote under the be- 
 lief that he is but 20 years of age, when he is in fact over 21 and a 
 qualified voter. His intent to commit a crime, and his belief that he 
 was committing a crime, would not make him guilty of any offense 
 under these circumstances, although the moral turpitude of the trans- 
 action on his part would be just as great as it would if he were in 
 fact under age. So, also, in the case of a prosecution under the 
 statute of this state which makes it rape in the second degree for a 
 man to perpetrate an act of sexual intercourse with a female not his 
 wife under the age of 18 years. There could be no conviction if it 
 was established upon the trial that the female was in fact over the 
 age of 18 years, although the defendant believed her to be younger 
 and intended to commit the crime. No matter how reprehensible 
 would be his act in morals, it would not be the act forbidden by this 
 particular statute. "If what a man contemplates doing would not be 
 in law a crime, he could not be said, in point of law, to intend to com- 
 mit the crime. If he thinks his act will be a crime, this is a mere mis- 
 take of his understanding, where the law holds it not to be such; 
 his real intent being to do a particular thing. If the thing is not a 
 crime, he does not intend to commit one whatever he may erroneously 
 suppose." 1 Bishop's Crim. Law (7th Ed.) § 742. 
 
 The judgment of the Appellate Division and of the Court of Gen- 
 eral Sessions must be reversed, and the defendant discharged upon 
 this indictment, as it is manifest that no conviction can be had there- 
 under. This discharge, however, in no wise affects the right to prose- 
 cute the defendant for other offenses of a like character concerning 
 which there is some proof in the record, but which were not charged 
 in the present indictment. 
 
 Chase, J. (dissenting). I dissent. Defendant having, with knowl- 
 edge, repeatedly received goods stolen from a dry goods firm by one 
 of its employes, suggested to the employe that a certain specified
 
 202 THE CRIMINAL ACT. (Cll. 6 
 
 kind of cloth be taken. He was told by the employe that that particular 
 kind of cloth was not kept on his floor, and he then said that he 
 would take a roll of certain Italian cloth, and carried it away, but 
 left it in another store, where he could subsequently get it for delivery 
 to the defendant. Before it was actually delivered to the defendant 
 the employers discovered that the employe had been stealing from 
 them, and they accused him of the thefts. The employe then con- 
 fessed his guilt, and told them of the piece of cloth that had been 
 stolen for the defendant, but had not actually been delivered to him. 
 The roll of cloth so stolen was then taken by another employe of 
 the firm, and it was arranged at the police headquarters that the em- 
 ploye who had taken the cloth should deliver it to the defendant, 
 which he did, and the defendant paid the employe about one-half the 
 value thereof. The defendant was then arrested, and this indict- 
 ment was thereafter found against him. That the defendant intended 
 to commit a crime is undisputed. I think the record shows an at- 
 tempt to commit the crime of criminally receiving property as de- 
 fined in sections 550 and 34 of the Penal Code, within the decisions 
 of this court in People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 
 L. R. A. 109, 20 Am. St. Rep. 732, and People v. Gardner, 144 N. 
 Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741. 
 
 Cullen, C. J., and Gray, Edward T. Bartlett, Vann, and Wer- 
 ner, JJ., concur with Willard Bartlett, J. Chase, J., dissents in 
 memorandum. 
 
 Judgment of conviction reversed, etc. 
 
 SIMPSON v. STATE. 
 
 (Supreme Court of Alabama, 1877. 59 Ala. 1, 31 Am. Rep. 1) 
 
 Brickell, C. J. The indictment contains a single count, charging, 
 in the prescribed form, the defendant with an assault with intent 
 to murder one Michael Ford. 1 The offense charged must be proved, 
 and an essential clement of the present offense is not only an as- 
 sault with intent to murder, but the specific intent to murder Ford, 
 the person named in the indictment. If the intent was to murder 
 her, or if there was not the specific intent to murder Ford, there 
 cannot be a conviction of the aggravated offense charged, though 
 ,iay be of the minor offense of assault, or of assault and bat- 
 Barkus v. State, 19 Miss. 17, 19 Am. Rep. 1; Jones v. State, 
 LI S & M. (Miss.) 315; Ogletree V. State, 28 Ala. 693; Mor- 
 
 gan v. State, 38 Ala. 113; State v. Abram, 10 Ala. 928. 
 
 The intenl cannot be implied as matter of law. It must be proved 
 natter of fact, and its existence the jury must determine from 
 
 i Part of the opinion is omitted.
 
 Sec. 2) SUFFICIENCY OF THE ACT. 203 
 
 all the facts and circumstances in evidence. It is true the aggravated 
 offense with which the defendant is charged cannot exist, unless, if 
 death had resulted, the completed offense would have been murder. 
 From this it does not necessarily follow that every assault from which, 
 if death ensued, the offense would be murder, is an assault with in- 
 tent to murder, within the purview of the statute, or that the specific 
 intent, the essential characteristic of the offense, exists. Therefore 
 in Moore v. State, 18 Ala. 533, an affirmative instruction, "that the 
 same facts and circumstances which would make the offense murder, 
 if death ensued, furnish sufficient evidence of the intention," was 
 declared erroneous. The court say: "There are a number of cases 
 where a killing would amount to murder, and yet the party did not 
 intend to kill. As if one from the housetop recklessly throw down 
 a billet of wood upon the sidewalk where persons are constantly 
 passing, and it fall upon a person passing by and kill him, this would 
 be, by the common law, murder; but if, instead of killing him, it 
 inflicts only a slight injury, that party could not be convicted of an 
 assault with intent to murder." Other illustrations may be drawn 
 from our statutes : Murder in the first degree may be committed in 
 the attempt to perpetrate arson, rape, robbery, or burglary, and yet 
 an assault committed in such attempt is not an assault with intent to 
 murder. If the intent is to ravish, or to rob, it is under the statute a 
 distinct offense from an assault with intent to murder, though pun- 
 ished with the same severity. And at common law, if death results 
 in the prosecution of a felonious intent, from an act malum in se, the 
 killing is murder. As if A. shoot at the poultry of B., intending to 
 steal them, and by accident kills a human being, he is guilty of 
 murder. 1 Russ. Cr. 540. Yet, if death did not ensue, if there was 
 a mere battery, or a wounding, it is not, under the statute, an assault 
 with intent to murder. The statute is directed against an act done 
 with the particular intent specified. The intent in fact is the intent to 
 murder the person named in the indictment, and the doctrine of an 
 intent in law different from the intent in fact has no just application; 
 and if the real intent shown by the evidence is not that charged there 
 cannot be a conviction for the offense that intent aggravates, and in 
 contemplation of the statute merits punishment as a felony. Ogle- 
 tree v. State, supra; Morgan v. State, supra. As is said by Mr. 
 Bishop, the reason is obvious. The charge against the defendant is 
 that, in consequence of a particular intent reaching beyond the act 
 done, he has incurred a guilt beyond what is deducible merely from 
 the act wrongfully performed, and therefore to extract by legal fic- 
 tion from this act such further intent, and then add it back to the act 
 to increase its severity, is bad in law. 1 Bish. Cr. Law, § 514. 
 
 An application of these general principles will show that several 
 of the instructions given by the city court were erroneous, and some 
 of them misleading, or invasive of the province of the jury. The 
 sixth asserts the familiar principle of the law of evidence that a man
 
 204 
 
 THE CRIMINAL ACT. 
 
 (Ch. G 
 
 must be presumed to intend the natural and probable consequences 
 of his acts, and from it draws the conclusion "that, if a man shoots 
 another with a deadly weapon, the law presumes that by such shoot- 
 ing he intended to take the life of the person shot." Whether this 
 instruction would or would not be correct, if death had ensued from 
 the shooting and the defendant was on trial for the homicide, it is 
 not now important to consider. In a case of this character the in- 
 struction is essentially erroneous, for, if it has any force, it con- 
 verts the material element of the offense, the intent to murder a 
 particular person, into a presumption of law, drawn from the nature 
 of the weapon and the act done with it; while the intent is a fact 
 which must be found by the jury, and the character of the weapon 
 and the act done are only facts from which it may or may not be in- 
 ferred. The weapon used, and the act done, may in the light of other 
 facts and circumstances import an intent to maim, or merely to wound, 
 distinct offenses from that imputed to the defendant; and maiming 
 or wounding is a probable natural consequence of the act done with 
 such weapon. 
 
 The result is that the judgment of the city court is reversed, and 
 the cause remanded. The prisoner will remain in custody until dis- 
 charged by due course of law. 2 
 
 
 
 
 
 V 
 
 III. Conspiracy. 
 
 STATE v. BUCHANAN. 
 
 (Court of Appeals of Maryland, 1821. 5 Har. & J. 317, 9 Am. Dec. 534.) 
 
 This was an indictment charging the defendants in the second count 
 with a conspiracy falsely, fraudulently, and unlawfully, by wrong- 
 ful and indirect means to cheat, defraud, and impoverish the presi- 
 dent, directors, and company of the Bank of the United States. To 
 this indictment there was a demur rer that the matter contained in 
 the indictment was not sufficient to sustain the prosecution. The coun- 
 ty court ruled the demurrer good (Dorsey, C. J., dissenting), and 
 discharged the defendants. The present writ of error was brought 
 on the part of the state. 
 
 > Accord: Reg. v. Donovan, 4 ('ox. C. C. 401 (1850). Bee, also, Common- 
 wealth v. Brosk, 8 Pa, Dist, R 638 (1899). 
 
 •"Hi.- :irnisc<i being under n years of age, and conclusively presumed to 
 be Incapable of committing the crime <>r rape, it logically follows, as a plain, 
 legal deduction, thai be was also Incapable In law of an attempl to commit 
 it. Be could not be held to be guilty of an attempl to commll an offense 
 which be was physically Impotent to perpetrate." Riley, J., in Foster v. 
 Commonwealth, 98 \a. 806, 81 B. B. 503, 42 L. R. a. 580, TO Am. St. Rep. 
 B46 (1898). Contra: Commonwealth v. Green, 'J Pick. (Mass.) 880 (1824). 
 
 There can be no conviction for an attempt to commll a crime which is 
 r only an attempt, as embracery. State v. Sales, 12 Nev. 268 (isoG), or 
 assault, Wilson v. State, 58 Ga. 205 (1874).
 
 Sec. 2) SUFFICIENCY OF THE ACT. 205 
 
 The case was argued in this court before Chase, C. J., Buchanan, 
 Earle, and Martin, J J. 
 
 Chase, C. J. 1 I think it may be assumed, as a position which can- 
 not be controverted and is free from doubt, that the common law of 
 England, as it was understood at the time of the Declaration of 
 Rights, was the law of Maryland; and I think the position is equally 
 clear that it must be ascertained by the writings of learned men of 
 the profession and by the judicial records and adjudged cases of the 
 courts of England. 
 
 The questions now occur : Do the facts contained in the indictment 
 constitute the crime or offense of conspiracy? And is conspiracy an 
 offense at common law, indictable and punishable as such? 
 
 Sergeant Hawkins, in his Pleas of the Crown, c. 72, in defining 
 conspiracy at common law, makes use of strong and explicit lan- 
 guage, and says there can be no doubt but that all confederacies what- 
 soever, wrongfully to prejudice a third person, are highly criminal 
 at common law, as where divers persons confederate together by in- 
 direct means to impoverish a third person. This definition is cor- 
 roborated and supported by adjudged cases in the courts of England, 
 and especially in the Court of King's Bench. 
 
 In 1 Lev. 125, 1 Burns' Justice, 355, Rex v. Sterling and Others, 
 Brewers of London, information for unlawfully conspiring to im- 
 poverish the excisemen by making orders that no small beer, called 
 gallon beer, should be made for a certain time, etc., the whole court 
 concurred in the opinion, and gave judgment for the king. 
 
 St. 33 Edw. 1, de conspiratoribus, was made in affirmance of the 
 common law, and is a final definition of the instances or cases of con- 
 spiracy mentioned in it; but certainly it does not comprehend all the 
 cases of conspiracy at the common law, which is most apparent from 
 the adjudged cases of the courts of England on that subject. 
 
 1 consider the adjudications of the courts of England, prior to the 
 era of the independence of America, as authority to show what the 
 common law of England was, in the opinion of the judges of the 
 tribunals of that country, and since that time, to be respected as the 
 opinions of enlightened judges of the jurisprudence of England. 
 
 The better opinion appears to be that a conspiracy to do an unlaw- 
 f^jict_is__aiL indictable offense, although the object of the conspiracy 
 is not executed. 2 In this case the conspiracy to cheat, defraud, and 
 impoverish the Bank of the United States, by appropriating the mon- 
 
 i The indictment is abridged, and the argument of counsel and the con- 
 curring opinion of Buchanan, J., are omitted. 
 
 2 In some states by statute an overt act is necessary in specified cases to 
 constitute the crime of conspiracy. See People v. Daniels, 105 Cal. 262, 
 38 Pac. 720 (1894); State v. Clary, 64 Me. 369 (1875); Wood v. State, 47 
 N. J. Law, 180 (1885) ; People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. 
 R, A. 807 (1891) ; U. S. v. Barrett (C. C.) 65 Fed. 62 (1894).
 
 206 THE CRIMINAL ACT. (Cll. 6 
 
 eys, promissory notes, and funds of the bank to the use of the ac- 
 cused, has been proved by the admission and confession of the de- 
 fendants, and a consummation of all the overt acts has been fully es- 
 tablished. 
 
 The Poulterer's Case, 9 Coke, 56, 57 : The falsa alligantia is a false 
 binding, each to the other, by bond or promise to execute some un- 
 lawful act. Before the unlawful act executed, the law punishes the 
 coadj unction, confederacy, or false alliance, to the end to prevent the 
 unlawful act. "Quia quando aliquid prohibetur, prohibetur et id per 
 quod pervenitur ad illud. Et effectus punitur licet non sequatur ef- 
 fectus." And in these cases the common law is a law of mercy, for 
 it prevents the malignant from doing mischief and the innocent from 
 suffering it. The defendants were punished by fine and imprisonment. 
 
 I think it is established by the decisions of the courts of England 
 that a conspiracy to cheat is an offense indictable and punishable at 
 common law. Rex v. Wheatly, 2 Burr. 1125. A cheat or imposition 
 by one person only is not indictable at common law, but a conspiracy to 
 cheat by two or more is indictable at common law, because ordinary 
 care and caution is no guard against it. Indictment against Macarty 
 and others, for a combination to cheat in imposing on the prosecutor 
 stale beer mixed with vinegar for port wine. 6 Mod. 301. Indict- 
 ment against Cope and others, for a conspiracy to ruin the trade of the 
 prosecutor by bribing his apprentices to put grease into the paste, 
 which had spoiled his cards. 1 Strange, 144. Indictment against Kin- 
 nersley and Moore, for a conspiracy to charge Lord Sunderland with 
 endeavoring to commit sodomy with said Moore, in order to extort 
 money from Lord Sunderland. The whole court gave judgment in 
 support of the indictment, and punished Kinnersley by fine, imprison- 
 ment, etc., and sentenced Moore to stand in the pillory, suffer a 
 year's imprisonment, and to give security for his good behavior. 1 
 Stra. 193, 196. Indictment against Rispal, 3 Burr. 1320: The in- 
 dictment sets forth that Rispal and two others did wickedly and un- 
 law fully conspire among themselves falsely to accuse John Chilton 
 with having taken a quantity of human hair out of a bag, etc., for 
 the purpose of exacting and extorting money from the said John 
 Chilton. The court were of opinion that the indictment was well laid, 
 and that the gist of the offense is the unlawful conspiring to injure 
 Chilton by this false charge. 
 
 A combination among laborers or mechanics to raise their wages, 
 is a con al common Law, and indictable (8 Mod. 10), although 
 
 lawful for cacli separately to raise his wages. 
 
 I con i'l'i thi doctrine so firmly established by the decisions of 
 the courts of England, prior to the era of our independence, ihat_a 
 combination or confederacy to <1<> an unlawful act is a conspiracy in- 
 dictable and punishable al common law, thai I have deemed it un- 
 necessary to refer to all the cases relative to this question, and there-
 
 Sec. 2; sufficiency of the act. 207 
 
 fore have contented myself with citing some of those which appear to 
 me most apposite. 
 
 The opinion of Lord Ellenborough in Rex v. Turner and Others, 
 13 East, 230, does not impugn, but strongly sanctions and confirms, 
 this doctrine. He says the cases of conspiracy have gone far enough. 
 He should be sorry to push them still further. The charge in the in- 
 dictment was for committing a civil trespass. He also says all the 
 cases in conspiracy proceed on the ground that the object of the con- 
 spiracy is to be effected by some falsity. 
 
 I am of opinion that the judgment be reversed, and the demurred 
 overruled. 
 
 Judgment reversed. 
 
 REX v. BYKERDIKE. 
 (Lancaster Assizes, 1832. 1 Moo. & R. 179.) 
 
 First count of the indictment charged that R. Bykerdike, with 
 divers others, etc., did conspire, combine, confederate, and agree un- 
 lawfully to intimidate, prejudice, and oppress one John Qa rforth in 
 his trade and occupation as agent for a certain colliery, to wit, etc., 
 and to prevent the workmen of the said J. G. from continuing to work 
 in the said colliery. 
 
 Second count laid a conspiracy to oppress and injure Joseph Jones 
 and others, partners in a certain colliery, to wit, etc., and to prevent 
 the workmen in the employ of the said J. J. and others, his partners, 
 from continuing to work at the said colliery, and compel the said J. 
 J. and others, his partners, to discharge the said workmen in their 
 employ. 
 
 Jones was an owner of the Fairbottom Colliery. Garforth was 
 agent fortKe~ colliery. Seven colliers had been summoned before a 
 magistrate by Garforth for refusing to work. It appeared that this 
 was done at their own request, as they were afraid to work, except 
 under the appearance of being compelled to do so. The body of the 
 other men met, having taken certain oaths, and agreed upon a letter 
 addressed to Garforth, to the effect that all workmen in Garforth's 
 employ would "strike in fourteen days unless the seven men were dis- 
 charged from the colliery." The letter concluded: "By order of the 
 board of directors for the body of coal miners. Fairbottom Col- 
 liery." 1 
 
 Patteson, J., told the jury that a conspiracy to procure the dis- 
 charge of any of the workmen would support the indictment, which 
 did not necessarily lay the intent as to all the workmen, and, if it did, 
 that it was still a question whether the facts would not have proved 
 it as to all; further, that the statute never meant to empower work- 
 
 i Argument of counsel is omitted;
 
 20S THE CRIMINAL ACT. (Cll. 6 
 
 men to meet and combine for the purpose of dictating to the master 
 whom he should employ, and that this compulsion was clearly illegal. 
 The defendant was convicted. 2 
 
 COMMONWEALTH v. SHERIFF. 
 
 (Court of Quarter Sessions of Philadelphia, 1S81. 15 Phila. 393.) 
 
 Habeas corpus. 
 
 Allison, P. J. The defendants were charged, on oath of Michael 
 T. Benerman, with having unlawfully conspired to injure the firm 
 of Sherman & Co., by molesting, intimidating, and annoying said firm 
 in their business, and were required to give bail in the sum of $600 
 each, to answer said charge at the present October term of the quarter 
 sessions. 
 
 The defendants, representing a trades union association, called up- 
 on a member of the firm at their office or place of business, and gave 
 notice that the association had decided upon an increase of wages to 
 be paid to journeymen printers employed in the offices of this city, 
 and in case the increased rates were not paid by the said firm to the 
 persons in their employ there would be a strike on the part of their 
 employes. The demand for increase of compensation having been 
 refused, the defendants proceeded to the office or shop of the com- 
 plainants, where their journeymen were at work, and notified them 
 that, the advanced rate of compensation having been refused, there 
 would be a strike, or that a strike was ordered, and that after that 
 day they should cease to work for Sherman & Co. until their wages 
 had been advanced to the standard fixed by the union. All of the 
 workmen, with one exception, including the foreman of the office, 
 were members of the union, and according to the law of their organ- 
 ization were required to obey the rules and regulations of the body 
 of which the defendants were the duly appointed representatives. 
 Does this conduct on the part of defendants amount to an unlaw- 
 ful conspiracy, for which they may be indicted and placed on trial? 
 
 Prior to the act of June 14, 1872 (P. L. 1175), and the supplemental 
 act of April 20, 1870 (P. L. 45), the law, as then settled, would have 
 required (his question to be answered in the affirmative. A con- 
 spiracy of workmen to raise wages by combining to coerce oilier 
 persons to conform to rules adopted by such combination, regulating 
 the price of labor, rind carrying such rules into effect by acts and 
 declarations tending to control (be will and conduct of others, con- 
 stituted a criminal, and therefore an indictable, offense. 3 Wharton, 
 Cr. Law, : Bishop's Cr. Law, §$ 230, 331. Tin's is equally 
 
 true, wlietber the conspiracy was intended to coerce the free will 
 
 • 
 
 2 Accord: State v. Donaldson, 82 N. J. Law, LSI, 90 Am. Dec. G19 (18(57).
 
 Sec. 2) SUFFICIENCY OF THE ACT. 209 
 
 and freedom of action of workmen or employer. In 3 Russell on 
 Crimes, the law as there stated is : "A combination to obstruct others 
 in carrying on their business and forcing them to submit to a book of 
 prices, inducing workmen to leave their employer's service, the pur- 
 pose being to obstruct the prosecutors in their manufacture and in- 
 jure them in their business, and thus force their consent, woujd be a 
 violation of law, which would be indictable." In Commonwealth v. 
 Carlisle, Brightly's Rep. 40, Gibson, J., said : "A combination is 
 criminal whenever the act to be done has a necessary tendency to 
 prejudice the public or oppress individuals by unjustly subjecting them 
 to the power of the confederates. Where the purpose is injurious or 
 unlawful, the gist of the offense is the conspiracy." Morris Run 
 Coal Co. v. Coal Co., 68 Pa. 186, 8 Am. Rep. 159, and numerous 
 illustrations of the doctrine there cited by Agnew, C. J. 
 
 Admitting the law to have been clearly established, so that it would 
 have subjected the defendants to indictment for the combination and 
 acts done in pursuance of the conspiracy, as proved on the hearing in 
 this case, what is their standing now before or under the law of 
 Pennsylvania, as affected by the legislation of 1872 and 1876? 
 
 The act of 1872 (Purd. Dig. 351) declares that it shall be lawful 
 for workingmen, acting either as individuals or as members of any 
 club, society, or association, to refuse to work for any person when- 
 ever, among other causes recited in the act, to continue such work 
 would be contrary to the rules or regulations of such organization 
 to which they may belong, and that such refusal shall not subject them 
 to prosecution or indictment for conspiracy. This act sweeps away 
 in a few words nearly all of the law which had been long established 
 in England, and adopted in this country, touching organizations or 
 combinations of workingmen having for their object the regulation 
 of amounts to be paid to them for their work by combination in 
 clubs or societies. That which had been held to be contrary to law 
 is declared to be lawful, and that which before would have subjected 
 workingmen to criminal prosecution, the act says, may be done with- 
 out incurring the risk of indictment. It is, therefore, no longer un- 
 lawful to combine and organize and adopt regulations having for 
 their object the increase of wages or the consideration to be paid for 
 labor. The effect of such combination may be to prejudice the inO 
 terests of the community, and may tend to injure individuals in their/, 
 business by causing the employed to cease to work for an employer, 
 and thus compel him to submit to a book or standard of prices, which 
 had been fixed by workingmen who had combined and organized for 
 that purpose. The act contains, however, the material proviso that 
 whoever shall hinder persons who desire to labor for their employers 
 from so doing, or other persons from being employed as laborers, 
 shall still be subject to prosecution and punishment as for a criminal 
 conspiracy. What constituted such hindrance was not defined, and 
 it was for the purpose of removing all ambiguity connected with the 
 Mik.Cb.L.— 14
 
 210 THE CRIMINAL ACT. (Ch. 6 
 
 word "hinder" in the act of 1872 that the supplemental law of April 
 20, 18 "t>, was passed, which declares that the construction to be given 
 to the proviso contained in the act of 1872 shall be that the use of 
 lawful and peaceful means, having for their object a lawful purpose, 
 shall not be regarded as "in any way hindering'' persons who desire 
 to labor, and that the use of force, threat, or menace of harm to 
 persons or property shall alone be regarded as in any way hindering 
 persons who desire to labor for their employers from so doing, or 
 other persons from being employed as laborers. 
 
 Under this statement of the law of Pennsylvania, as it stands to- 
 day in full force, the only question for our consideration is, do the 
 acts of the defendants, representing and acting in behalf of a labor 
 society, club, or organization, subject them to indictment? Does 
 calling together upon the firm of Sherman & Co., demanding an in- 
 crease of wages for the journeymen printers employed by the firm, 
 with notice that a refusal would result in a strike of the workmen, 
 followed by the defendants going together to the workshop of the 
 prosecutors and notifying the journeymen that a strike was order- 
 ed, constitute the use of force, threat, or menace of harm to the 
 persons or property of the firm, or to the members of the firm of 
 Sherman & Co., or to their employes? Are these means otherwise 
 than lawful and peaceful, and had they for their object a lawful 
 purpose? We are unable to see wherein they offend against the 
 law. If laborers may now lawfully combine, and, as members of 
 such combination, refuse to work for an employer, when, in their 
 opinion, the wages paid to them are insufficient, and if they may 
 now lawfully refuse to work, when to do so would be contrary to 
 the rules, regulations, or by-laws of any association to which they 
 may belong, how can it be considered as amounting to force, threat, 
 or menace of harm for two or more persons, authorized to act for 
 such association, to say to an employer that a rule, by-law, or regula- 
 tion of the association required the payment of increased wages, and 
 that, on refusal to make such payment, their workmen were, by 
 virtue of their membership of a lawful society and its regulations, 
 required to stop work? It is true that striking, as it is called, or re- 
 cusing to work, might, and probably would, result in harm to the 
 business of Sherman & Co.; but that is the result of what the work- 
 men may now lawfully do in their associated capacity, and does not 
 constitute a threat or menace of harm in the sense in which these 
 terms are to be understood as they are used in the act of 1876. The 
 fact is not to be overlooked that it had too often been a matter of 
 just complaint that workmen re orted to actual force, to threats and 
 menace of injury to persons and property in the enforcement of a 
 demand for an advanced rate of wages. Upon this the law always 
 frowned. Such acts were always illegal. When done by agreement 
 between two or more persons, they amounted to overt acts, grow- 
 ing out of a criminal conspiracy, which tended to the injury of (lift
 
 Sec. 2) SUFFICIENCY OF THE ACT. 211 
 
 community and to the subversion of individual rights of persons and 
 property. This was the wrong referred to in the act of 1876, which 
 it was declared would subject the offenders to punishment in the 
 future, as it had in the past. Such acts were declared to be outside 
 of the protection contemplated by the legislation which we are now 
 considering, because such means are neither lawful nor peaceful, and 
 because they are calculated to improperly hinder persons who desire 
 to labor for their employers from so doing, and to prevent other per- 
 sons from being employed as laborers. 
 
 It was further urged on behalf of the commonwealth that the in- 
 trusion of the defendants into the shop or workroom of the prose- 
 cutors was in itself a trespass, and therefore illegal, and that the 
 means employed to carry into effect the purposes of the defendants 
 are not sanctioned by the act of 1876. But this proposition is not 
 borne out by the testimony in the cause; for it has not been shown 
 that visits like the one made by defendants — workmen of the same 
 craft going to shops where other workmen are employed — are not, 
 at least, with the implied permission of the employers. It is not pre- 
 tended in this case that defendants were forbidden to enter the shop, 
 or that they were ordered to depart after they had entered, or that 
 their conduct was not peaceable and orderly. The foreman having 
 charge of the shop was present, and knew of the presence of the de- 
 fendants and of the object of their visit. To this he did not object, 
 and, in so far as he represented the prosecutors, may be said to have 
 consented to, if he did not approve of, all that was said and done. 
 Reaching the conclusion that the defendants are not shown to have 
 done any act contrary to law, that no prima facie case of unlawful 
 combination or criminal conspiracy has been shown by the testimony, 
 they are hereby discharged. 
 
 COTE v. MURPHY. 
 
 (Supreme Court of Pennsylvania, 1894. 159 Pa. 420, 28 Atl. 190. 23 L. R. A. 
 
 135, 39 Am. St. Rep. CSG.) 
 
 Mr. Justice Dean. 1 The defendants were members of the Planing 
 Mill Association of Allegheny County and Builders' Exchange of 
 Pittsburgh. The different partnerships and individuals composing 
 these associations were in the business of contracting and building 
 and furnishing building material of all kinds. On the 1st of May, 
 1891, there was a strike of the carpenters, masons, and bricklayers in 
 the building trades, bringing about, to a large extent, a stoppage of 
 building. 
 
 The men demanded an eight-hour day, with no reduction in wages 
 theretofore paid, which the employers refused to grant. Then a strike 
 
 i The opinion only is printed. 
 
 fcf
 
 212 THE CRIMINAL ACT. (Ch. 6 
 
 by the unions of the different trades was declared. The plaintiff, at 
 the time, was doing business in the city of Pittsburgh as a dealer in 
 building materials. He was not a member of either the "Planing Mill 
 Association," or of the "Builders' Exchange." There were also con- 
 tractors and builders, who belonged to neither of these organizations, 
 who conceded the demands of the workmen. They sought to se- 
 cure building material from dealers wherever they could, and thus 
 go on with their contracts. If they succeeded in purchasing the nec- 
 essary material, the result would be that at least some of the strik- 
 ing workmen would have employment at a higher rate of wages than 
 the two associations were willing to pay. The tendency of this was 
 to strengthen the cause of the strikers, for those employed were able 
 to contribute to the support of their fellow workmen who were idle. 
 The two associations already named sought to enlist all concerned as 
 contractors and builders or as dealers in supplies, whether members 
 of the associations or not, in the furtherance of the one object, re- 
 sistance to the demands of the workmen. The plaintiff, and six other 
 individuals or firms engaged in the same business, refused to join them, 
 and undertook to continue sales of building material to those builders 
 who had conceded the eight-hour day. The Planing Mill Associa- 
 tion and Builders' Exchange tried to limit their ability to carry on 
 work at the advance, by inducing lumber dealers and others to refrain 
 from shipping, or selling them in quantities, the lumber and other 
 material necessary to carrying on the retail business. In several in- 
 stances their efforts were successful, and the plaintiff did not suc- 
 ceed in purchasing lumber from certain of the wholesale dealers in 
 Cleveland and Dubois, where he wanted to buy. The defendants 
 were active members of one or other, or both of the associations en- 
 gaged in the contest with the striking workmen. The strike continued 
 about two months. After it was at an end, the plaintiff brought suit 
 against defendants, averring an unlawful and successful conspiracy 
 to injure him in his business and to interfere with the course of trade 
 generally, to the injury of the public; that the conspiracy was car- 
 ried out by a refusal to sell to him building materials themselves, and 
 by threats and intimidation preventing other dealers from doing so. 
 !cr the instructions of the court upon the evidence, there was a 
 lict for plaintiff in the sum of $2,500 damages, which the court re- 
 duced to $1,500; then judgment, and from that defendants take this 
 appeal. 
 
 The plaintiff's case is not one which appeals very strongly to a 
 e of justice. The mechanics of Pittsburgh engaged in the dif- 
 ferent building ti on 1st of May, 1891, demanded that eight 
 hours should I"-- computed as a day in payment of their wages. Their 
 right to do this is clear. It is one of the indefeasible rights of a me- 
 chanic or laborer in this commonwealth to fix such value on his serv- 
 ices as he sees proper, and, under the Constitution, there is no power 
 lodged anywhere to compel him to work for less than he chooses to
 
 Sec. 2) SUFFICIENCY OF THE ACT. 213 
 
 accept. But in this case the workmen went further. They agreed 
 that no one of them would work for less than the demand, and by all 
 lawful means, such as reasoning and persuasion, they woulcT prev ent 
 other workmen from working for less. Their right to do this is also 
 clear. At common law this last was a conspiracy and indictable, bu 
 under the acts of 1869, 1872, 1876, and 1891 employes, acting to- 
 gether by agreement, may, with few exceptions, lawfully do all those 
 things which the common law declared a conspiracy. They are still 
 forbidden, in the prosecution of a strike," preventing any one of their 
 number who may desire to labor from doing so, by force or menace 
 of harm to person or property; but the strike here was conducted 
 throughout in an orderly, lawful manner. The employers, contract- 
 ors, and others engaged in building and furnishing supplies, members 
 of the two associations already mentioned, to which these defend- 
 ants belonged, refused to concede the demands of the workmen, and 
 there then followed a prolonged and bitter contest. The members of 
 the associations refused to furnish supplies to those engaged in the 
 construction of any building where the contractor had conceded the 
 eight-hour day. This, as individual dealers, they had a clear right to 
 . do. They could sell and deliver their material to whom they pleased. 
 But they also went further. They agreed among themselves that no 
 member of the association would furnish supplies to those who were 
 in favor of or had conceded the eight-hour day, and that they would dis- 
 suade other dealers, not members of the associations, from furnish- 
 ing building material to such contractors or retail dealers. To the ex- 
 tent of their power this agreement was carried out. This clearly was- 
 combination, and the acts of assembly referred to do not, in terms, 
 embrace employers. They only include within their express terms 
 workmen. Hence, it is argued by counsel for appellee, these defend- 
 ants are subject to all the common-law liability of conspirators in 
 their attempts to resist the demand for increased wages ; that is, there 
 can be a combination among workmen to advance wages, but there 
 can be no such combination of employers to resist the advance. That 
 which by statute is permitted to the one side, the common law still 
 denies to the other. If this position be well taken, we then have this 
 inequality: The plaintiff, who is aiding a combination, either direct- 
 ly or indirectly, intentionally or unintentionally, to advance wages, 
 sues for damages members of another combination who resist the ad- 
 vance. Nor is there any difference in the character of the acts or 
 means on both sides in furtherance of their purposes. The workmen 
 will not work themselves, and they use persuasion and reason with 
 their fellows to keep them from going to work until the demand is 
 conceded. The employers will not sell to contractors who concede 
 the demand, and they do their best to persuade others engaged in the 
 same business from doing: so. 
 
 Then the element of real damage to plaintiff is absent. By far the 
 larger number of dealers in the city and county were members of the 
 combination which refused to sell. Onlv the plaintiff and six other?
 
 214 THE CRIMINAL ACT. (Ch. 6 
 
 refused to enter the combination. The result was that these seven 
 had almost a monopoly of furnishing supplies to all builders who con- 
 ceded the advance. Plaintiff admits in his own testimony that thereby 
 his business and profits largely increased. In a few instances he paid 
 more to wholesale dealers and put in more time buying than he would 
 have done if the associations had not interfered with those who sold 
 him ; but it is not denied that, as a result of the combination, he was 
 individually a large gainer. True, he avers that, if defendants had 
 gone no further than to refuse to sell themselves, he would have made 
 a great deal more money — that is, he did not make as large a sum as 
 he would have made if they had not dissuaded others, not members 
 of the association, from selling to him; but that, by the fact of the 
 combination and strike, he was richer at the end than when they com- 
 menced, is not questioned. 
 
 We have, then, these facts, somewhat peculiar in the administra- 
 tion of justice: A plaintiff suing and recovering damages for an al- 
 leged unlawful act, of which he himself, in so far as he aided the 
 workmen's combination, is also guilty ; and both acts springing from 
 the same source, a contest between employers and employed as to 
 the price of daily wages; and then the further fact, that this contest, 
 instead of damaging him, resulted largely to his profit. 
 
 We assume, so far as concerns defendants, if their agreement was 
 unlawful, or, if lawful, it was carried out by unlawful acts, to the 
 damage of plaintiff, the judgment should stand. All the authorities 
 of this state go to show that, while the act of an individual may not 
 be unlawful, yet the same act, when committed by a combination of 
 two or more, may be unlawful, and therefore be actionable. A dictum 
 of Lord Denman, in R. v. Seward, 1 A. & E. 711, gives this definition 
 of a conspiracy : "It is either a combination to procure an unlawful 
 object, or to procure a lawful object by unlawful means." This leaves 
 still undetermined the meaning to be given the words "lawful" and 
 ''unlawful," in their connection in the antithesis. An agreement may 
 be unlawful in the sense that the law will not aid in its enforcement, 
 or recognize it as binding upon those who have made it, yet not unlaw- 
 ful in the sense that it will punish those who are parties to it, either 
 criminally or by a verdict in damages. Lord Denman is reported to 
 have said afterwards in R. v. Heck, 9 A. & E. 690, that his definition 
 was not very correct. See note to Wharton's Criminal Law, § "2^'U. 
 
 It is conceded, however, in the case in hand, any one of defendants, 
 
 acting for himself, had a right to refuse to sell to those favoring the 
 
 eight-hour day, and so, acting for himself, had the right to dissuade 
 
 Others from selling. If the act were unlawful at all. it was because 
 
 of the combination of a number. Gibson, J., in Com. v. Carlisle, 
 
 htly's R. 39, says: "Where the act is lawful for the individual, 
 
 n be the subject of conspiracy, when <\<>nv in concert, only where 
 
 there is a direct int< that injury shall result from it, or where 
 
 the object is to benefit the conspirators to the prejudice of the public*
 
 Sec. 2) SUFFICIENCY OF THE ACT. 21o 
 
 or the oppression of individuals, and where such prejudice or oppres- 
 sion is the natural and necessary consequence." 
 
 In the same case it is held: "A combination is criminal, wherever 
 the act to be done has a necessary tendency to prejudice the public, or 
 to oppress individuals by unjustly subjecting them to the power of the 
 confederacy, and giving effect to the purposes of the latter, whether 
 of extortion or mischief. According to this view of the law, a combi- 
 nation of employers to depress the wages of journeymen below what 
 they would be if there was no recurrence to artificial means on ei- 
 ther side is criminal." This case puts the law against the combination 
 in as strong terms, if not stronger, than any others of our own state. 
 The significant qualification of the general principle, as mentioned in 
 the last three lines, will be noticed: "If there was no recurrence to 
 artificial means on either side." The prejudice to the public is the use 
 of artificial means to affect prices whereby the public suffers. A com- 
 bination of stockbrokers to corner a stock, of farmers to raise the 
 price of grain, of manufacturers to raise the price of their product, of 
 employers to reduce the price of labor, of workmen to raise the price, 
 were at the date of that decision, at common law, all conspiracies. 
 The fixed theory of courts and legislators then was that the price of 
 everything ought to be, and in the absence of combination necessarily 
 would be, regulated by supply and demand. The first to deny the jus- 
 tice of this theory, and to break away from it, was labor, and this was 
 soon followed by the legislation already noticed, relieving workmen 
 from the penalties of what, for more than a century, had been de- 
 clared unlawful combinations or conspiracies. Wages, it was argued, 
 should be fixed by the fair proportion labor had contributed in produc- 
 tion. The market price, determined by supply and demand, might or 
 might not be fair wages, often was not, and as long as workmen were 
 not free by combination to insist on their right to fair wages, oppres- 
 sion by capital, or, which is the same thing, by their employers, fol- 
 lowed. It is not our business to pass on the soundness of the theories 
 which prompt the enactment of statutes. One thing, however, is 
 clear : The moment the Legislature relieved one and by far the larger 
 number of the citizens of the commonwealth from the common-law 
 prohibitions against combinations to raise the price of labor and by a 
 combination the price was raised, down went the foundation on which 
 common-law conspiracy was based as to that particular subject. Be- 
 fore any legislation on the question, it was held that a combination of 
 workmen to raise the price of labor, or of employers to depress it, 
 was unlawful, because such combination interfered with the price 
 which would otherwise be regulated by supply and demand. This 
 interference was in restraint of trade or business, and prejudicial to 
 the public at large. Such combination made an artificial price. 
 Workmen, by reason of the combination, were not willing to work 
 for what otherwise they would accept. Employers would not pay 
 what otherwise they would consider fair wages. Supply and demand
 
 216 THE CRIMINAL ACT. (Cll. 6 
 
 consist in the amount of labor for sale and the needs of the employ- 
 er who buys. If more men offer to sell labor than are needed, the 
 price goes down, and the employer buys cheap. If fewer than required 
 offer, the price goes up, and he buys dear. As every seller and buyer 
 is free to bargain for himself, the price is regulated solely by supply 
 and demand. On this reasoning was founded common-law conspiracy 
 in this class of cases. But in this case the workmen, without regard 
 to the supply of labor or the demand for it, agree upon what in their 
 judgment is a fair price, and then combine in a demand for payment 
 of that price; when refused, in pursuance of the combination, they quit 
 work, and agree not to work until the demand is conceded; further, 
 they agree by lawful means to prevent all others, not members of the 
 combination, from going to work until the employers agree to pay 
 the price fixed by the combination ; and this, as long as no force was 
 used, or menaces to person or property, they had a lawful right to do, 
 and so far as is known to us the price demanded by them may have been 
 a fair one. But it is nonsense to say that this was a price fixed by sup- 
 ply and demand. It was fixed by a combination of workmen on their 
 combined judgment as to its fairness; and, that the supply might 
 not lessen it, they combined to prevent all other workmen in the mar- 
 ket from accepting less. Then followed the combination of employers, 
 not to lower the wages theretofore paid, but to resist the demand of a 
 combination for an advance; not to resist an advance which would 
 naturally follow a limited supply in the market, for the supply, so far 
 as the workmen belonging to the combination was concerned, was by 
 combination wholly withdrawn, and as to workmen other than mem- 
 bers, to the extent of their power, they kept them out of the market. 
 By artificial means the market 'supply was almost wholly cut off. The 
 combination of the employers, then, was not to interfere with the 
 price of labor as determined by the common-law theory, but to defend 
 themselves against a demand made altogether regardless of the price 
 as regulated by the supply. The element of an unlawful combination 
 to restrain trade because of greed of profit to themselves, or of malice 
 toward plaintiff or others, is lacking, and this is the essential element 
 on which are founded all decisions as to common-law conspiracy in 
 this class of cases. And however unchanged may be the law as to 
 binations of employers to interfere with wages, where such combi- 
 nations take the initiative, they certainly do not depress the market 
 price when they combine to resist a combination to artificially advance 
 price. 
 "The reason of the law is the life of the law," and. as given in the 
 3 cited by appellee, irresistibly impels to the conclusion that the 
 combination here was nol unlawful; a conclusion which is clearly in- 
 dicated in Com. v. Carlisle, supra, that it would not he unlawful, if 
 there was first recurrence to artificial means by workmen to raise the 
 rket price. Here the firsl step provocative of a combination by the 
 employers was an attempt by lawful, artificial means on part of the
 
 Sec. 2) SUFFICIENCY OF THE ACT. 217 
 
 workmen to control the supply of labor, preparatory to a demand for 
 an advance. 
 
 Nor does the fact that the appellee was not a workman, or a mem- 
 ber of any of the unions of workmen, put him in any better attitude 
 than if he were. He undertook for his own profit to aid the cause of 
 the workmen. His right to do so was unquestionable. But, if the em- 
 ployers by a lawful combination could limit his ability so to do, they 
 did not make themselves answerable in damages to him for the conse- 
 quences of a lawful act. 
 
 The case of Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173, 8 
 Am. Rep. 159, is not in point. It was the attempt to enforce the collec- 
 tion of a draft given by one member of a combination formed to raise 
 the price of coal to another, in consideration of certain stipulations 
 in the agreement. It was held that the combination, being in restraint 
 of trade, was unlawful, and, as the draft was given in pursuance of 
 the unlawful contract, it also was tainted with the illegality, and there 
 could be no recovery. 
 
 But, if the agreement itself were not unlawful, were the methods to 
 carry it out unlawful ? If the employers' combination here had used il- 
 legal methods or means to prevent other dealers from selling supplies to 
 plaintiff, the conspiracy might still have been found to exist. The 
 threats referred to, although what are usually termed threats, were not 
 so in a legal sense. To have said they would inflict bodily harm on other 
 dealers or villify them in the newspapers, or bring on them social ostra- 
 cism, or similar declarations, these the law would have deemed threats, 
 for they may deter a man of ordinary courage from the prosecution of 
 his business in a way which accords with his own notions ; but to say, 
 and even that is inferential from the correspondence, that if they con- 
 tinued to sell to plaintiff the members of the association would not 
 buy from them, is not a threat. It does not interfere with the dealer's 
 free choice. It may have prompted him to a somewhat sordid calcu- 
 lation. He may have considered which custom was most profitable, 
 and have acted accordingly ; but this was not such coercion and threats 
 as constituted the acts of the combination unlawful. Rodgers v. Duff, 
 13 Moore, P. C. 209; Bowen v. Matheson, 14 Allen (Mass.) 499; 
 Bohn Mfg. Co. v. Hollis et al., 54 Minn. 223, 55 N. W. 1119, 21 L. R. 
 A. 337, 40 Am. St. Rep. 319. 
 
 On the main question the case last cited goes further than we are 
 called upon to go, as yet, in this state. It holds that what is not un- 
 lawful when done by an individual cannot be unlawful when done by 
 many, and therefore the combination not to deal with those who broke 
 the rules of the association was not a conspiracy. For this a number of 
 cases from other states, as well as from England, are cited. But the law 
 in this state has heretofore been determined otherwise from a very early 
 day by an unbroken line of decisions which here call for no qualifica- 
 tion; for, so far as concerns the facts of this case, the Legislature 
 has so changed the law as to render these decisions inapplicable. We
 
 218 THE CRIMINAL ACT. (Ch. 6 
 
 concede, however, that the decisions of other courts are by no means 
 uniform. Mr. Wright, in his work on the Law of Criminal Conspir- 
 acies and Agreements (London, 1873), says: "It is conceived that, 
 on a review of all the decisions, there is a great preponderance of au- 
 thority in favor of the proposition that, as a rule, an agreement or 
 combination is not criminal, unless it be for acts or omissions, whether 
 as ends or means, which would be criminal apart from agreement.'' 
 
 Logically, the same rule would apply, as was held in Bohn Mfg. Co. 
 v. Hollis, to combinations which, although not criminal, are alleged to 
 be unlawful. 
 
 But without regard to whether the general rule be settled by the 
 weight of authority, as claimed by the appellants, we hold here that 
 this combination was not unlawful, because: (1) It was not made to 
 lower the price of wages as regulated by the supply and demand, but 
 to resist an artificial price made by a combination which by statute was 
 not unlawful. (2) The methods adopted to further the objects of the 
 combination were not unlawful. 
 
 Another point has been most earnestly pressed upon our considera- 
 tion by counsel for appellants. It is argued that, under our Declara- 
 tion of Rights, either the acts of assembly of 1869, 1872, 1876, and 
 1891, exempting employes from the penalties of unlawful combina- 
 tion to fix the price of labor are void, because, by their terms, they em- 
 brace only a particular class of citizens of the commonwealth, or their 
 scope must be enlarged beyond the express terms of these acts, so as 
 to include within their protection all those interested in the same sub- 
 ject of legislation. It is argued that it is not within the power of the 
 Legislature to declare some citizens innocent of any offense against 
 the law for the very same act which, when committed by some others 
 in the same business, the law will still hold to be criminal ; that what 
 the statute declares is not conspiracy in one case cannot, under the 
 law, be conspiracy in the other; and therefore, in every contest of 
 this kind between workmen and employers, the statute, if not void. 
 must at least be held to operate equally to the exemption of all citi- 
 zens interested in the subject affected by the combination. If there 
 be nothing criminal in a combination to artificially raise wages, there 
 can be nothing criminal in an employers' combination to resist the ad- 
 vance or to artificially depress them. 
 
 This question is not in the case, in the view we have taken of the 
 facts. We are at all times averse to passing on questions the answers 
 to which are not necessary to a decision of the case immediately before 
 us ; much less are we inclined to discuss and decide questions involv- 
 ing the constitutional power of a co-ordinate branch of the govern- 
 ment For this reason we refrain from a consideration of the able 
 tit of counsel for appellant on Ibis point. 
 
 The refusal of the courl below to affirm appellant's seventh prayer 
 for instructions, that "under all the evidence the verdict must be for 
 defendants," was error, and, being here assigned foi error, the appeal 
 is sustained, and judgmenl rever ed.
 
 Sec. 2) SUFFICIENCY OF THE ACT. 219 
 
 STATE v. STEWART. 
 
 {Supreme Court of Vermont, 1887. 50 Vt. 273, 9 Atl. 550, 50 Am. Rep. 710.) 
 
 Indictment for a conspiracy to hinder and prevent the Ryegate 
 Granite Works, a corporation doing business at Ryegate, from em- 
 ploying certain granite cutters, and for hindering and deterring cer- 
 tain laborers from working for the said corporation. Heard, June 
 term, 1885, Ross, J., presiding, upon respondents' demurrer and mo- 
 tion to quash the indictment. The demurrer was overruled pro forma, 
 and the motion to quash denied, to which the respondents excepted. 1 
 
 Powers, J. Although authorities can be found that lay down 
 the rule that felonies and misdemeanors, or different felonies, can- 
 not be joined in the same indictment, still the rule in this and most of 
 the states is otherwise. 
 
 It is always and everywhere permissible for the pleader to set 
 forth the offense he seeks to prosecute in all the various ways neces- 
 sary to meet the possible phases of evidence that may appear at the 
 trial. If the counts cover the same transaction, though involving of- 
 fenses of different grade, the court has it in its power to preserve all 
 rights of defense intact. Commonwealth v. McLaughlin, 12 Cush. 
 (Mass.) 612; State v. Lincoln, 49 N. H. 464; State v. Smalley, 50 
 Vt. 736; State v. Thornton, 56 Vt. 35; Rex v. Ferguson, 2 Stark, 
 489. Moreover, the motion to quash is addressed to the discretion of 
 the court, and its refusal is not the subject of revision here. Common- 
 wealth v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596; Com- 
 monwealth v. Ryan, 9 Gray (Mass.) 137; 1 Wharton, Cr. Law, § 519. 
 
 The respondents' counsel argues that the first and second counts 
 do not cover the offense of criminal conspiracy at common law. But 
 we think, upon a careful examination of the English and American 
 cases cited in argument, and we suspect that none have been over- 
 looked on either side, that it is clear to a demonstration that a com- 
 bination of the character set forth in these counts was a conspiracy at 
 the common law, and, further, that the subject-matter of the offense 
 being the same in this country as in England, namely, an interference 
 with the property rights of third persons, and a restraint upon the 
 lawful prosecution of their industries, as well as an unlawful control 
 over the free use and employment by workmen of their own personal 
 skill and labor, at such times, for such prices, and for such persons 
 as they please, the common law of England is "applicable to our local 
 situation and circumstances" in this behalf, and is therefore the com- 
 mon law of Vermont. 
 
 In England and here it is lawful, and, it may be added, commend- 
 able, for any body of men to associate themselves together for the 
 purpose of bettering their condition in any respect, financial or social. 
 The very genius of free institutions invites them to higher levels and 
 
 i The indictment and the arguments of counsel are omitted.
 
 220 THE CRIMINAL ACT. (Cll. 6' 
 
 better fortunes. They may dictate their own wages, fraternize with 
 their own associates, choose their own employers, and serve man and 
 mammon according to the dictates of their own conscience. 
 
 But, while the law accords this liberty to one, it accords a like 
 liberty to every other one; and all are bound to so use and enjoy 
 their own liberties and privileges as not to interfere with those of 
 their neighbors. 
 
 All the legislation in England and America has been progressively 
 in the direction of according to laborers the enjoyment of equal rights 
 with others. 
 
 The early English statutes, beginning with the middle of the four- 
 teenth century, are to be read in the light of the civilization of that 
 day, and their provisions, to us of the nineteenth century harsh, il- 
 liberal, and tyrannical, were but the reflex of the prevalent notions of 
 class distinctions that shaped and guided the social and political polity 
 
 of those days. 
 
 From time to time, however, down to 1875, this legislation has been 
 liberalized and Christianized; and to-day in England, as here, work- 
 men stand upon the same broad level of equality before the law with 
 all other vocations, professions, or callings whatsoever, respecting the 
 disposition of their labor and the advancement of their associated in- 
 terests. 
 
 There, as here, it is unlawful for employers wrongfully to coerce, 
 intimidate, or hinder the free choice of workmen in the disposal of 
 their time and talents. There, as here, it is unlawful for workmen 
 wrongfully to coerce, intimidate, or hinder employers in the selection 
 of such workmen as they choose to employ. There, as here, no em- 
 ployer can say to a workman he must not work for another employer, 
 nor can a workman say to an employer he cannot employ the service 
 of another workman. 
 
 By the law of the land, these respondents have the most unqualified 
 right to work for whom they please, and at such prices as they please. 
 By the law of the land, 6'Rourke and Goodfellow have the same 
 right. By the same law, the Ryegate Granite Company has the right 
 to employ the respondents or O'Rourke on such terms as may be 
 mutually agreed upon, without let, hindrance, or dictation from any 
 man or body of men whatever. 
 
 Suppose the members of a bar association in Caledonia county 
 should combine and declare that the respondents should employ no 
 
 ttorney, nol a member of such association, to assisl them in their 
 Fense in this case, under the penalty of being dubbed a "scab," and 
 having his name paraded in the public press as unworthy of recogni- 
 tion among his brethren, and himself brOUghl into hatred, envy, and 
 
 contempt; would the re pondents look upon this as an innocent inter- 
 leddling with their rights under the law? The proposition has only 
 t be stated to di cl itto r inconsistency with every principle of 
 
 ju tice that permeates the law under which we live.
 
 Sec. 2) SUFFICIENCY OF THE ACT. 221 
 
 If such conspiracies are to be tolerated as innocent, then every fann- 
 er in Vermont, now resting in the confidence that he may employ such 
 assistance in carrying on his farm as he thinks he can afford to hire, 
 is exposed to the operation of some secret code of law, in the fram- 
 ing of which he had no voice, and upon the terms of which he has no 
 veto, and every manufacturer is handicapped by a system that por- 
 tends certain destruction to his industry. If our agricultural and 
 manufacturing industries are sleeping upon the fires of a volcano, lia- 
 ble to eruption at any moment, it is high time our people knew it. 
 
 But happily such is not the law, and among English-speaking peo- 
 ple never has been the law. The Reports, English and American, are 
 full of illustrations of the doctrine that a combination of two or more 
 persons to effect an illegal purpose, either by legal or illegal means, J 
 whether such purpose be illegal at common law or by statute, or to 
 effect a legal purpose by illegal means, whether such means be illegal J 
 at common law or by statute, is a common-law conspiracy. Such com-/ 
 binations are equally illegal, whether they promote objects or adopt ) 
 means that are per se indictable, or promote objects or adopt means I 
 that are per se oppressive, immoral, or wrongfully prejudicial to the i 
 rights of others. 
 
 If they seek to restrain trade, or tend to the destruction of the 
 material prosperity of the country, they work injury to the whole 
 public. 
 
 These propositions are the clear deduction of the cases cited in ar- 
 gument, and breathe a spirit of equality and justice that must commend 
 itself to every intelligent mind. 
 
 Counsel have cited to us no case in which it has been ruled that 
 this crime of conspiracy does not exist at the common law: We are 
 referred to Mr. Wright's clever monograph upon Criminal Conspira- 
 cies, wherein the author, though not denying that conspiracies to in- 
 jure industries and against the free exercise of one's calling accord- 
 ing to his own choice were held to be criminal at the common law, 
 still attempts to throw doubt upon the basis upon which the doctrine 
 rests. 
 
 But when, in 1 Hawkins' Pleas of the Crown, c. 27, § 2 (a book 
 of great authority), 2 Russell on Crimes, 674, it is laid down "that 
 all conspiracies whatever, wrongfully to prejudice a third person, are 
 highly criminal at common law," and in 2 Wharton's Criminal Law, 
 § 2322, it is said that "a combination is a conspiracy in law, whenever 
 the act to be done has a necessary tendency to prejudice the public 
 or oppress individuals, by unjustly subjecting them to the power of 
 the confederates, and giving effect to the purposes of the latter, wheth- 
 er of extortion or mischief," and the same proposition, in one form of 
 expression and another, is laid down in 2 Bishop's Criminal Law, § 
 172, and in Desty's Criminal Law, § 11, and in 3 Chitty's Criminal 
 Law, 1138, and in Archbold's Crim. Prac. & PI. 1830, and it was said
 
 222 THE CRIMINAL ACT. (Ch. 6 
 
 by Denman, C. J., in Queen v. Kenrick, 5 Q. B. 49 : "It was contended, 
 in the first place, that the third count was bad by reason of uncertain- 
 ty, as giving no notice of the offense charged. The whole law of con- 
 spiracy, as it has been administered at least for the last hundred years, 
 has been thus called in question; for we have sufficient proof that 
 during that period any combination to prejudice another unlawfully 
 has been considered as constituting the offense so called. The_offense 
 iasbeen_jieldto consist in the conspiracy, and_not injhej^ts^pamiail- 
 tecTfor carrving~~iL_i nto ^Jeffectl andtKe charge__ has been held to be 
 sufficiently mad e in g ejiej^l^errn s desc jjbjng__jji^uidawiuj_cmispiracy 
 to effect__a_bad4iurpose" — and!3aron Rolfe, in Reg. v. Selby, 5 Cox, 
 "Crim. Cas. 495, and Tindal, C. J., in Reg. v. Harris, 1 Car. & M. 
 661, and Crompton, J., in Hilton v. Eckersley, 6 E. &. B. 47, and 
 Grove, J., in Rex v. Mawbey, 6 T. R. 619, and Lord Mansfield, in 
 Rex v. Eccles, 1 Leach, Crown Cas. 274, and Hill, J., in Walsby 
 v. Anley, 3 E. & E. 516, and Campbell, C. J., in Reg. v. Rowlands, 
 17 Adol. & El. 670, and Baron Bramwell, in Reg. v. Druitt, 10 Cox, 
 Crim. Cas. 592, and Brett, J., in Reg. v. Bunn, 12 Cox, Crim. Cas. 
 316, and Al^lins^V. C, in Springhead Co. v. Riley, L. R. 6 Eq. 551, 
 and ColeridgerCTjiTin Mogul S. S. Co. v. McGregor, L. R. 15 Q. 
 B. Div. 476, and Shaw, C. J., in Commonwealth v. Hunt, 4 Mete. 
 ( Mass.) Ill, 128, 38 Am. Dec. 346, and Caton, C. J., in Smith v. 
 People, 25 111. 17, 76 Am. Dec. 780, and Gibson, C. J., in Common- 
 wealth v. Carlisle, Journal Jurisprudence, 225, and Chapman, C. J., 
 in Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287, have all added 
 their indorsement of the doctrine advanced as early as the work of 
 Hawkins, supra: it is manifest that we are compelled to forsake the 
 literature of doubt, and to cleave unto that of authority. See, also, 
 Rex v. Ferguson, 2 Starkie, N. P. 489; Rex v. Bykerdyke, 1 M. 
 & Rob. 179; People v. Fisher, 14 Wend. (N. Y.) 9; State v. Don- 
 aldson, 32 N. J. Law, 151, 90 Am. Dec. 649; Snow v. Wheeler, 
 113 Mass. 186; State v. Noves, 25 Vt. 415; State v. Burnham, 15 
 N. H. 396; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173, 
 8 Am. Rep. 159. 
 
 Vice Chancellor Malins, in the case cited, supra, states the law of 
 the subject in brief but intelligible words: "Every man is at liberty 
 to enter into a combination to keep up the price of wages; but, if 
 he enters into a combination for the object of interfering with the 
 perfect freedom of action of another man, it is an offense, not only 
 at common law, but under St. 6 Geo. IV, c. 129." 
 
 The principle upon which the cases, English and Vmerican, proceed 
 is that every man has the right to employ his talents, industry, and 
 capital as he pleases, free from the dictation <'f Others; and, if two or 
 more persons combine to coerce his choice in this behalf, it is a criminal 
 conspiracy. The labor and skill <>f the workman, be it of high or low 
 degree, the plant of tip- manufacturer, the equipment of the farmer,
 
 Sec. 2) SUFFICIENCY OF THE ACT. 223 
 
 the investments of commerce, are all in equal sense property. If men 
 by overt acts of violence destroy either, they are guilty of crime. The 
 anathemas of a secret organization of men, combined for the purpose 
 of-contrdlling the industry of others by a species of intimidation that 
 works upon the mind rather than the body, are quite as dangerous, 
 and generally altogether more effective, than acts of actual violence; 
 and, while such conspiracies may give to the individual directly affect- 
 ed by them a private right of action for damages, they at the same 
 time lay a basis for an indictment on the ground that the state itself 
 is directly concerned in the promotion of all legitimate industries and 
 the development of all its resources, and owes the duty of protection 
 to its citizens engaged in the exercise of their callings. The good 
 order, peace, and general prosperity of the state are directly involved 
 in the question. 
 
 In the case at bar the third and fourth counts set forth more par- 
 ticularly the methods adopted by the respondents to interfere with the 
 prosecution of its business by the Ryegate Granite Works. Thev 
 charge the respondents with an intent to prevent the prosecution of 
 the work of that company by threatening O'Rourke, Goodfellow, and 
 others, that the Ryegate Granite Works were "scab shops," and all 
 workmen therein were "scabs," and their names would be published 
 in the "scab" list in the Granite Cutter's Journal, and that they would 
 be shunned, and not allowed to work with any other granite cutters, 
 and would be disgraced in the craft, etc., by all of which O'Rourke. 
 Goodfellow, and others were frightened and driven away from said 
 shops. 
 
 The exposure of a legitimate business to the control of an associa- 
 tion that can order away its employes and frighten away others that 
 it may seek to employ, and thus be compelled to cease the further 
 prosecution of its work, is a condition of things utterly at war with 
 every principle of justice and every safeguard of protection that citi- 
 zens under our system of government are entitled to enjoy. The direct 
 tendency of such intimidation is to establish over labor and over all 
 industries, a control that is unknown to the law, and that is exerted 
 by a secret association of conspirators, that is actuated solely by per- 
 sonal considerations, and whose plans, carried into execution, usually 
 result in violence and the destruction of property. 
 
 That evils exist in the relations of capital and labor, and that work- I 
 men have grievances that oftentimes call for relief, are facts that ob- / 
 serving men cannot deny. With such questions we, as a court, have 
 no function to discharge further than to say that the remedy cannot 
 be found in the boycott. 
 
 We do not deem it necessary to extend this discussion — already 
 too long drawn out — in following seriatim the numerous objections 
 taken in the able and elaborate brief of the respondents to the differ- 
 ent counts of this indictment. The general scope of the views express- 
 ed covers the whole ground, we think; and the result is the judg-
 
 224 THE CRIMINAL ACT. (Ch. 6 
 
 ment of the county court, overruling the motion to quash, and overrul- 
 ing the demurrer, and adjudging the indictment to be sufficient, is 
 affirmed; and the cause is remanded, to be further proceeded with. 2 
 
 SECTION 3.— AUTHORIZED ACTS. 
 I. Acts in Furtherance of Public Justice. 
 
 
 This kind of occision of a man according to the laws of the kingdom 
 and in execution thereof ought not to be numbered in the rank of 
 crimes, for it is the execution of justice, without which there were 
 no living, and murders, burglaries, and all capital crimes would be as 
 frequent and common as petit trespasses and batteries. The taking 
 away of the life, therefore, of the malefactor according to law by 
 sentence of the judge, and by the sheriff or other minister of justice 
 pursuant to such sentence, is not only an act of necessity, but of duty, 
 not only excusable, but commendable, when the law requires it. 
 * * * The deliberate, uncompelled, extrajudicial killing of a per- 
 son attaint of treason, felony, or murder, or in a praemunire; tho' upon 
 the score of their being such, is murder. 
 
 Therefore it is necessary (1) that he that gives sentence of death 
 against a malefactor be authorized by lawful commission or charter, 
 or by prescription to have cognizance of the cause; (2) that he that 
 executes such sentence be authorized to make such execution, other- 
 wise it will be murder or manslaughter, or at least a great misprision 
 in the judge that sentenceth, or in the minister that executeth. 1 Hale, 
 P. C. 496. 
 
 2 Accord: Boycotting, State v. Glidden, 56 Conn. 40. 8 Atl. 800, 3 Am. 
 St. Rep. 23 (1887); ('rump v. Commonwealth, 8-1 Va. 027, G S. B. G20, 10 
 Am. St. Rep. 895 (1888). 
 
 if the Indictment is for conspiracy to commit a crime of which concert 
 is an essential element, such as adultery, the agreement to do the net can 
 not be separated from the ad Itself to form the foundation for a charge of 
 conspiracy. Shannon v. Commonwealth, 14 Pa. 226 (1850); Miles v. state. 
 58 Ala. 890 (1877). Cf. State v. Huegln, 110 Wis. ISO, 85 N. W. 1010, 62 
 L. R. A. 700 (1901). 
 
 To convict of conspiracy, it is not necessary that defendant was a party 
 to the conspiracy at its formation. He is guilty if, with knowledge of the 
 conspiracy, be aids in carrying It Into execution. People v. Mather, 4 
 Wend. (N. Y.i 229, 21 Am. Dec. 122 (1830). Since tho conspiracy is complete 
 when the unlawful agreement is made, a subsequent withdrawal before the 
 contemplated act is committed la bo defense to the charge of conspiracy. 
 Dill v. State, 80 Tex. (Jr. K. 240, 88 S. W. 126, 00 Am. St. Rep. 37 (1803).
 
 Sec. 3) AUTHORIZED ACTS. 225 
 
 LEONIN'S CASE. 
 
 (Worcestershire Eyre, 1221. Select Pleas of the Crown. Sel. Soc. PI. 133.) 
 
 Leonin, Phillip's son, and Jacob his servant slew John of Middle- 
 ton in the forest of Kinfare and fled and were dwelling in Stafford- 
 shire in the township of Kinfare. And therefore this must be discuss- 
 ed at Stafford. Let them be exacted and outlawed. Inquiry as to 
 their chattels must be made at Stafford. Englishry is presented. 
 
 Afterwards came John, Phillip's son, Robert of Stapleton and Adam 
 of Peissi and undertook to produce Leonin and Jacob before the jus- 
 tices at Stafford to abide judgment. So the sheriff is ordered that 
 the exacting and outlawing be respited until they shall have another 
 order. 
 
 At Lichfield came Leonin and Jacob and put themselves upon their 
 verdict as to when, where, and by whom the deed was done. The ju- 
 rors of the hundred of Seisdon say that in the time of the war John 
 came with many others into the king's forest to offend in the forest, 
 as was his wont, and was found seised of the whole body of a doe, and 
 the king's servants and foresters could not take him alive, and he 
 defended himself against our lord the king and cut off a forester's 
 finger, and thus it was that he was slain. And so it is considered that 
 [Leonin and Jacob] be quit thereof. 1 
 
 UNITED STATES v. RICE. 
 
 (United States Circuit Court for North Carolina, 1875. 1 Hughes, 560, Fed. 
 
 Cas. No. 16,153.) 
 
 On the 15th of last September, Andrew Woody, of Spring Creek, 
 Madison county, was killed by Noah H. Rice, a United States deputy 
 marshal, who was endeavoring to serve a capias on him for violation 
 of the internal revenue laws. From facts developed before the court 
 it appears that Woody had expressed a determination to resist any 
 process which might issue against him, and had threatened to kill 
 the defendant, Rice, if he attempted to arrest him. When this officer 
 came upon Woody, the latter was armed with a rifle. His demeanor 
 was hostile, and when commanded to surrender he so acted as to im- 
 press the officer with the belief that his intention was to shoot him, 
 and in self-defense he fired upon Woody with fatal effect. Rice came 
 to Asheville and surrendered himself to the authorities, was examined 
 by Commissioner Watts on application for bail, and committed to jail. 
 His case was finally removed to the United States court, on Tuesday, 
 May 11, 1875. He was placed upon trial for his life. The jury hav- 
 
 i See, also, Anon. Y. B. 30 & 31 Edw. I, 512 (1302). 
 Mik.Cb.L..— 15 

 
 I % - 
 
 226 THE CRIMINAL ACT. (Ch. 6 
 
 ing requested full instructions from the bench, they were given as fol- 
 lows by 
 
 Dick, J. As this is a case of considerable importance to the defend- 
 ant, and also to the due administration of justice, I have deemed it 
 proper to commit to writing my instructions to the jury upon the 
 questions of law involved. 1 
 
 It is conceded that the alleged homicide was committed by the de- 
 fendant, and he places his defense upon the ground that he was a reg- 
 ular constituted officer of the United States, and had in his hands at 
 the time of the homicide the process of law which authorized and com- 
 manded him to arrest the deceased for a crime against the United 
 States ; that the deceased resisted the execution of such process with a 
 deadly weapon in his hands, and had manifested a purpose to use such 
 deadly weapon in resistance; and that the homicide was necessarily 
 committed in the attempt to make an arrest. 
 
 This defense necessarily leads us to inquire what protection the 
 common law affords to ministerial officers, and how far they are au- 
 thorized to go in the performance of their public duties. 
 
 Social order and political government are dependent upon the ob- 
 servance of law by the citizen. The mandates of the law are executed 
 by officers provided for such purposes, and such officers are invested 
 by the law with the authority necessary to execute its mandates, and 
 it affords them all the protection possible in the rightful performance 
 of the duties imposed. This rule is absolutely necessary for the ad- 
 vancement of justice, and is founded in wisdom and equity and in the 
 principles of social and political order. The law must be supreme 
 within the sphere of its operation, or its influence would be nugatory, 
 and there would be no certain rule to regulate human conduct in society 
 and government, and all the rights and liberties of citizens would soon 
 be lost in a chaos of anarchy. 
 
 Mr. Justice Foster says: "Ministers of justice, while in the execu- 
 tion of their offices, are under the peculiar protection of the law." 
 Foster, 308. If an officer is killed while performing his duty, the law 
 deems such killing murder of malice prepense. 
 
 This protection is not confined to the precise time when the officer 
 is performing his official duty, but extends over him while going to, 
 remaining at, and returning from the place of action. Any opposition, 
 traction, or resistance intended to prevent an officer from doing his 
 official duty is an indictable offense at common law, and the punish- 
 ni! iit is regulated by the nature of the offense. 
 
 An officer is authorized to summons as many persons as may be 
 necessary to assist him in the performance of his legal duties, and 
 such persons are bound to obey such summons, and they are under the 
 same protection afforded to officers, as they arc for the time officers 
 of the law. The law imposes upon private persons the duty of sup- 
 
 i Part of the charge is omitted.
 
 Sec. 3) 
 
 AUTHORIZED ACTS. 
 
 227 
 
 pressing affrays, preventing felonies from being committed in their 
 presence, and arresting such offenders and bringing them to justice; 
 and such private persons, while performing their duties, are under 
 the protection of the law. We may confidently lay down the broad 
 general principle that, when any person is performing a public duty 
 required of him by law, he is under the protection of the law. An of- 
 ficer of the law who has legal process in his hands is bound to execute 
 it according to the mandate of the writ. If he is resisted in the per- 
 formance of this duty, he must overcome such resistance by the use 
 of such force as may be necessary for him to execute his duty. If 
 necessary, the law authorizes him to resort to extreme measures, and 
 if the resisting party is killed in the struggle the homicide is justifi- 
 able. Garrett's Case, Winston, 144. 2 
 
 If unnecessary and excessive force is used, after resistance has en- 
 tirely ceased and the defendant in the writ has manifested his willing- 
 ness to submit to the mandates of the law and be arrested, then, if 
 the said defendant is killed, the officer will be guilty of manslaughter ; 
 and if the blood had time to cool the killing would be murder. 2 
 Wharton, Crim. Law, 1030, 1031, and authorities referred to in note. 3 
 If, however, the defendant in the writ only ceases his resistance up- 
 on the officer desisting from his attempt to arrest, and still keeps him- 
 self in a condition to renew the resistance with a deadly weapon, if 
 the officer should renew the effort to arrest, and the officer cannot 
 make the arrest without great personal danger, he would be justified 
 in killing the defendant. The submission of the defendant in such a 
 case is not complete, and as long as he refuses to be arrested he is in 
 a state of resistance; and if he is armed with a deadly weapon, and 
 has manifested an intent to use it, and still keeps the weapon in his 
 possession convenient for an emergency and the officer has reasonable 
 grounds for believing that the weapon will be used if an arrest is at- 
 tempted, the officer is not required to risk his life in a rencounter, 
 or desist from an effort to perform his duty. When a person puts 
 himself in an armed and deadly resistance to the process of the law, 
 he becomes virtually an outlaw, and officers are not required to show 
 him the courtesy of a chivalrous antagonist and give him an open field 
 and fair fight. It is only when a criminal submits to the law that it 
 throws round him the mantle of protection and administers justice 
 with mercy. It is the duty of every offender charged with crime in 
 due process of law to quietly yield himself up to public justice. State 
 v. Bryant, 65 N. C. 327 ; State v. Garrett, Winston, 144. 
 
 ■ r ^Y<yi try Lr*siJh 
 
 2 Accord: U. S. v. Jailor, 2 Abb. 265. Fed. Cas. No. 15,463 (1867)- Smith v. 
 State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. Rep. 20 (1S94) ; State v. Gosncll 
 (C. C.) 74 Fed. 734 (1S90) ; Lynn v. People, 170 111. 527, 48 N. E. 964 (1897). 
 Contra, where arrest is for a misdemeanor: Stephens v. Commonwealth, 
 20 Ky. Law Rep. 544, 47 S. W. 229 (1898). 
 
 s Accord : Gosse's Case, Vent. 216 (1673) ; State v. Rose, 142 Mo. 418, 44 S. 
 W. 329 (1S97).
 
 228 THE CRIMINAL ACT. (Ch. 6 
 
 A known officer, in attempting to make an arrest by virtue of a 
 warrant, is not bound to exhibit his warrant and read it to a defend- 
 ant before he secures him, if he resists. If no resistance is offered, 
 the officer ought always, upon demand made, show his warrant to the 
 party arrested, or notify him of the substance of the warrant, so that 
 he may have no excuse for placing himself in opposition to the process 
 of the law. This is only a rule of precaution. A defendant is bound 
 to submit to a known officer — to yield himself immediately and peace- 
 ably into the custody of the officer before the law gives him the right 
 of having the warrant read and explained. When in resistance, the 
 law shows him no favor. A defendant, knowing the arresting party 
 to be an officer, is bound to submit to the arrest, reserving the right 
 of action against the officer in case the latter be in the wrong. When 
 a person acts in a public capacity as an officer, it will be presumed 
 that he was rightfully appointed. 1 Wharton, Cr. Law, §§ 1289, 2925; 
 Cooley's Case, 6 Gray (Mass.) 350. 
 
 One who is not a known officer ought to show his warrant and read 
 it, if required; but it would seem that this duty is not so imperative 
 as that a neglect of it would make him a trespasser ab initio, when 
 there is proof that the party subject to be arrested had notice of the 
 warrant, and was fully aware of its contents, and had made up his 
 mind to resist its execution at all hazards. Garrett's Case, supra. 
 
 The law, in its humanity and justice, will not allow unnecessary 
 jforce to be used in the execution of its process. If a defendant, with- 
 out any deadly weapon or manifestation of excessive violence, makes 
 resistance, an officer is not justified in willfully shooting him down; 
 but if a defendant has a deadly weapon, and has manifested a purpose 
 to use it if an arrest is attempted, the officer is not bound to wait for 
 him to have an opportunity of carrying bis purpose into effect. If 
 the warrant is for a misdemeanor, and a defendant attempts to avoid 
 an arrest by flight, the officer has no right to shoot him down to pre- 
 vent escape, nor even after an arrest has been made and defendant es- 
 capes from custody. Foster's Case, 1 L. C. C. 1ST. 4 
 
 The rule is different in cases of felony. Bryant's Case, supra. 5 
 
 If an officer has process in his hands, issuing from a court of com- 
 petent jurisdiction over the subject-matter, authorizing and command- 
 ing him to arrest a defendant, he is entitled to the protection which 
 the law affords officers acting under process, although the process in 
 his hands is informal and irregular. Tf the process is illegal and void 
 on its face, or is against the wrong person, or its execution is attempt- 
 
 « Accord: Reneau v. Btate, 2 Lea (Trim.) 720. 81 Am. Rep. 628 (1879); 
 Handley v. Btate 96 Ala. 48, n South. 322, 88 Am. St. Rep. 81 (1891); Btate 
 v. Smith, 127 Iowa, 584, LOS N. W. 944, 70 L. R, A. 246, 109 Am. St. Rep. 
 402 (1906). 
 
 ■ Accord: Oarr v. State, 48 Ark. 99 (1884). "This rule not only applies 
 to the felon himself, bul also to those who are seeking to rescue the prisoner." 
 Deemer, J., to State v. Smith, 127 Iowa, 584, LOS N. w. 944, 70 L. It. A. 
 246, LOO Am. St. Rep. 402 (1906).
 
 Sec. 3) AUTHORIZED ACTS. 229 
 
 ed out of the district in which it can alone be executed, then the officer 
 would not be under the protection of the law; but it would seem that, 
 if he kills a resisting party under such circumstances, he would only 
 be guilty of manslaughter, unless he had actual knowledge of his want 
 of authority, or acted from express malice. 
 
 I have stated to you many points of law which do not directly arise 
 in the case before us; but it is important that they should be known 
 and well understood in the country where, in recent years, so much 
 violence has been committed — violence in the name of law, and vio- 
 lence in the defiance of law. 
 
 The principles of law involved in this case having been explained 
 to you by the court, it is now your duty to ascertain the facts from 
 the testimony and apply them to the law as laid down by the court. 
 
 The jury, after a retirement of two hours, found a verdict of "not 
 guilty." 
 
 II, Acts in Furtherance of Domestic Authority. 
 BRADLEY v. HIS WIFE. 
 
 (King's Bench, 1663. 1 Keb. 637.) 
 
 3. 1 They refused to bind him to the peace at her suit, unless her 
 life be in danger, because by the law he hath power of castigation ; 
 and the Bishop of London had certified he used to beat her, but that 
 she used to provoke him; and that by reason of their wilfulness he 
 could not end their difference, according to the reference of the court 
 last term. 
 
 STATE v. OLIVER. 
 
 (Supreme Court of North Carolina, 1874. 70 N. C. 60.) 
 
 Settle, J. We may assume that the old doctrine, that a husband 
 had a right to whip his wife, provided he used a switch no larger than 
 his thumb, is not law in North Carolina. Indeed, the courts have ad- 
 vanced from that barbarism until they have reached the position that 
 the husband has no right to chastise his wife, under any circumstan- 
 ces. 2 
 
 Boit-from-motives of public policy, in order to preserve the sanctity 
 of the domestic circle, the courts will not listen to trivial complaints. 
 
 If no permanent injury has been inflicted, nor malice, cruelty, nor 
 
 i The first and second resolutions are omitted. 
 
 a Accord: People v. Winters, 2 Parker, Cr. R. (N. T.) 10 (1823) ; State 
 v. Buckley, 2 Har. (Del.) 552 (1S38) ; Commonwealth v. McAfee, 108 Mass. 
 458, 11 Am. Rep. 383 (1871).
 
 230 THE CRIMINAL ACT. (Ch. 6 
 
 dangerous violence shown by the husband, it is better to draw the 
 curtain, shut out the public gaze, and leave the parties to forget and 
 forgive. 
 
 No general rule can be applied, but each case must depend upon the 
 circumstances surrounding it. 
 
 Without adverting in detail to the facts established by the special 
 verdict in this case, we think that they show both malice and cruelty. 
 
 In fact, it is difficult to conceive how a man, who has promised up- 
 on the altar to love, comfort, honor, and keep a woman, can lay rude 
 and violent hands upon her without having malice and cruelty in his 
 heart. 
 
 Let it be certified that the judgment of the superior court is af- 
 firmed. 
 
 PER CURIAM. Judgment affirmed. 2 
 
 i) V. 
 
 *W C*rW^ t* fc- V / GREY ' S CASE 
 
 (Old Bailey, 1666. Kelyng, 64.) 
 
 John Grey being indicted for the murder of William Golding, the 
 jury found a special verdict to this effect, viz.: We find that the 
 day, year, and place in the indictment mentioned, John Grey, the pris- 
 oner, was a blacksmith, and that William Golding, the person killed, 
 was hisjervant, and that Grey, his master, commanded him to mend 
 certain stamps, being part belonging to his trade, which he neglected 
 to do ; and the said Grey, his master, after coming in asked him, the 
 said Golding, why he had not done it, and the said Grey told the said 
 Golding, that if he would not serve him, he would serve in Bridewel, 
 to which the said Golding replied that he had as good serve in Bride- 
 wel as serve the said Grey his master; whereupon the said Grey, 
 without any other provocation, struck the said Golding with a bar of 
 iron, which the said Grey then had in his hand, upon which he and 
 < '.olding were working at the anvil, and with the said blow he broke 
 his skull, of which he died; and if this be murder, etc. This case 
 was found specially by the desire of my Brother Wylde, and I showed 
 the special verdict to all my Brethren, Judges of the King's Bench, 
 and to my Lord Bridgman, Chief Justice of the Common Pleas. And 
 we were all of opinion that this was murder. For if a father, master, 
 or schoolmaster, will correct his child, servant, or scholar, they must 
 do it with such things as are fit for correction, and not with such 
 instruments as may probably kill them. For otherwise, under pre- 
 
 nce of correction, a parent might kill his child, or a master his serv- 
 
 2 Aerord: Bradley v. State, Walk. (MlM.) 156 (1824). 
 
 "it is sickly sensibility which holds that a man may not lay hands on 
 his wife, oven rudely, if necessary, to prevent the commission of some \in- 
 inwfui or criminal purpose." Armstrong, J., in Richards v. Richards, 1 
 
 <;raiir. Cms Vn > ."'.Sit (1S56 I
 
 vScC. 3) AUTHORIZED ACTS. 231 
 
 ant, or a schoolmaster his scholar, and a bar of iron is no instrument 
 for correction. It is all one as if he had run him through with a sword ; 
 and my Brother Morton said he remembered a case at Oxford As- 
 sizes before Justice Jones, then Judge of Assize, where a smith be- 
 ing chiding with his servant, upon some cross answer being given 
 by his servant, he having a piece of hot iron in his hand, run it into 
 his servant's belly, and it was judged murder, and the party executed. 
 And my Lord Bridgman said, that in his circuit there was a woman 
 indicted for murdering her child, and it appeared upon the evidence, 
 that she kicked her and stamped upon her belly, and he judged it 
 murder; and my Brother Twisden said, he ruled such a case formerly 
 in Gloucester Circuit, for a piece of iron or a sword, or a great cudgel, 
 with which a man probably may be slain, are not instruments of cor- 
 rection. And therefore when a master strikes his servant willingly 
 with such things as those are, if death ensue, the law shall judge it 
 malice prepensed. 
 
 But if a parent, master, or schoolmaster, correct his child, servant, 
 or scholar, with such things as are usual and fit for correction, and 
 they happen to die, Poulton de Pace, page 120, saith this is by misad- 
 venture, and cites for authority, Kelloway, 108, a, b, and 136, a. But 
 that book, which puts this case in Kelloway is 136, a, saith, that if a 
 man correct his servant, or lord his villain, and by force of that cor- 
 rection he dieth, although he did not intend to kill him, yet this is a 
 felony, because they ought to govern themselves in their correction 
 in such ways that such a misadventure might not happen. And I 
 suppose, because the word misadventure is there used, therefore 
 Poulton concludeth (it may be truly) that it is but misadventure. 
 
 BOYD v. STATE. ' 
 
 (Supreme Court of Alabama, 1889. 88 Ala. 169, 7 South. 268, 16 Am. St. 
 
 Rep. 31.) 
 
 Somerville, J. 1 The defendant, a schoolmaster, being indicted, 
 was convicted of an a^s^uJtjLnd_battery on one Lee Crowder, a pupil 
 in his school, who is shown to have been about 18 years of age. 
 The defense is that the alleged battery was a reasonable chastisement 
 inflicted by the master in just maintenance of discipline, and in 
 punishment of conduct on the part of the pupil which tended to the 
 subversion of good order in the school. 
 
 The case involves a consideration of the proper rule of law pre- 
 scribing the extent of the schoolmaster's authority to administer 
 corporal correction to a pupil. 
 
 The principle is commonly stated to be that the schoolmaster, like 
 the parent, and others in foro domestico, has the authority to moder- 
 
 » Part of this case is omitted
 
 232 THE CRIMINAL ACT. (Ch. 6 
 
 ately chastise pupils under his care, or, as stated by Chancellor Kent, 
 "the right of inflicting moderate correction, under the exercise of a 
 sound discretion." 2 Kent's Com. *203, *206. In other words, he 
 may administer reasonable correction, which must not "exceed the 
 bounds of due moderation, either in the measure of it, or in the in- 
 strument made use of for the purpose." If he go beyond this ex- 
 tent, he becomes criminally liable, and, if death ensues from the 
 brutal injuries inflicted, he may be liable, not only for assault and 
 battery, but to the penalties of manslaughter, or even murder, ac- 
 cording to the circumstances of the case. 1 Archbold's Cr. Prac. *218 ; 
 
 1 Bish. Cr. Law (7th Ed.) §§ 881, 882. 
 
 This power of correction, vested by law in parents, is founded on 
 their duty to maintain and educate their offspring. In support of 
 that authority, they must have "a right to the exercise of such dis- 
 cipline as may be requisite for the discharge of their sacred trust." 
 
 2 Kent's Com. *203. And this power, allowed by law to the parent 
 over the person of the child, "may be delegated to a tutor or instruc- 
 tor, the better to accomplish the purpose of education." Id. *205 ; 
 1 Black. Com. *507. 
 
 The better doctrine of the adjudged cases, therefore, is that the 
 teacher is, within reasonable bounds, the substitute for the parent, 
 exercising his delegated authority. He is vested with the power to 
 administer moderate correction with a proper instrument in cases 
 of misconduct, which ought to have some reference to the character 
 of the offense and the sex, age, size, and physical strength of the 
 pupil. When the teacher keeps within the circumscribed sphere of his 
 authority, the degree of correction must be left to his discretion, as 
 it is to that of the parent, under like circumstances. Within this 
 limit, he has the authority to determine the gravity or heinousncss 
 of the offense, and to mete out to the offender the punishment which 
 he thinks his conduct justly merits; and hence the parent or teacher 
 is often said, pro hac vice, to exercise "judicial functions." 2 
 
 All of the authorities agree that he will not be permitted to deal 
 brutally with his victim, so as to endanger life, limb, or health. He 
 will not be permitted to inflict "cruel and merciless punishment." 
 Schouler's Dom. Rel. (4th Ed.) § 244. He cannot lawfully disfigure 
 him, or perpetrate on his person any other permanent injury. As 
 said by Gaston, J., in State v. Pendcrgrass, 19 N. C. 365, 31 Am. Dec. 
 416, a case generally approved by the weight of American authority: 
 "It may be laid down as a general rule that teachers exceed the limit 
 
 i Accord: Btepfather, State v. Alford, 88 N. 0. 822 (1878); master of 
 apprentice, State v. Dickenson, 98 N. 0. 708, ". S. BJ. 687 (1887). A brother 
 who provide* a sister of IB years with lodging, clothing, and schooling may 
 inflict moderate correction, Snowden v. State, 12 Tex. A.pp. i* 1 "*. n Am. Rep. 
 
 667. Tlil> doctrine \v:is held in Donnelley v. Territory, •", Ariz. 291, 62 Pac. 
 .''.c.s (1898), not. to extend i«> the patriarch or prlesl <>r a community, even 
 though the punishment was Inflicted with the consent <>f the child's parents.
 
 Sec. 3) AUTHORIZED ACTS. 233 
 
 of their authority when they cause lasting mischief, but act within the 
 limits of it when they inflict temporary pain." 
 
 There are some well-considered authorities which hold teachers 
 and parents alike liable criminally if, in the infliction of chastisement, 
 they act clearly without the exercise of reasonable judgment and 
 discretion. The test which seems to be fixed by these cases is the 
 general judgment of reasonable men. Patterson v. Nutter, 78 Me. 
 509, 7 Atl. 273, 57 Am. Rep. 818. The more correct view, however, 
 and the one better sustained by authority, seems to be that when, in 
 the judgment of reasonable men, the punishment inflicted is immoderate 
 or excessive, and a jury would be authorized from the facts of the 
 case to infer that it was induced by legal malice or wickedness of 
 motive, the limit of lawful authority may be adjudged to be passed. 
 In determining this question, the nature of the instrument of correction 
 used may have a strong bearing on the inquiry as to motive or intention. 
 The latter view is indorsed by Mr. Freeman, in his note to the case 
 of State v. Pendergrass, 31 Am. Dec. 419, as the more correct. "The 
 qualification," he observes, "that the schoolmaster shall not act from 
 malice, will protect his pupils from outbursts of brutality, whilst, 
 on the other hand, he is protected from liability for mere errors of 
 judgment." Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156, and note 
 pp. 164-167; State v. Alford, 68 N. C. 322; State v. Harris, 63 N. 
 C. 1. 
 
 There was evidence in this case from which the inference of malice 
 could have been deduced as influencing the conduct of the defendant 
 in his chastisement of young Crowder, both as to his outbursts of 
 temper and in the use of improper instruments of correction. Taking, 
 as we must, every reasonable inference which the judge, acting as a 
 jury, could have drawn from the evidence, we take as true, among 
 others, the following facts: That after the severe chastisement ad- 
 ministered in the schoolroom the defendant followed Crowder into 
 the schoolyard, and struck him with "a limb or stick," and then "put 
 his hands in his pocket, as if to draw a knife" ; that, although Crowder 
 did not strike back, but only protested against and resisted casti- 
 gation, and, after apologizing for the objectionable language imputed 
 to him, asked permission to withdraw from the school, the defendant, 
 after promising not to strike him, "afterwards struck him in the 
 face three licks with his fist, and hit him several licks over the 
 head with the butt end of the switch." From these blows the eye of 
 the young man was "considerably swollen," and was "closed for 
 several days." The attending physician testified that there were 
 "marks on his head made by a stick, in his opinion." One witness 
 asserts that the defendant declared he "would conquer him (Crowder) 
 or kill him." All the witnesses for the state say that the defendant 
 was apparently very angry all the time, and was very much excited, 
 and after he got through whipping Crowder he remarked, in an ex- 
 cited, angry voice, in the presence of the school and others, that he
 
 234 THE CRIMINAL ACT. (Ch. 6 
 
 "could whip any man in China Grove beat." From this unseemly 
 conduct on the part of one whose duty it was to set a good example 
 of self-restraint and gentlemanly deportment to his pupils, there was 
 ample room for the inference of legal malice, in connection with un- 
 reasonable and immoderate correction. Nor was the limb of a tree, 
 of the size indicated by the evidence, nor a clinched fist applied 
 in bruising the pupil's eye, after the manner of a prize fighter, a 
 proper instrument of correction to be used on such an occasion. 
 
 The conviction must accordingly be sustained, without assuming 
 any jurisdiction to review the correctness of the judge's finding on 
 the facts. 
 
 Affirmed. 
 
 III. Acts in Prevention of Crime. 
 HOWELL'S CASE. 
 
 (Worcestershire Eyre, 1221. Select Pleas of the Crown. Sel. Soc. PI. 145.) 
 
 Howell, the Markman, a wandering robber, and his fellows as- 
 saulted a carter, and would have robbed him, but the carter slew 
 Howell and defended himself against the others and escaped. And 
 whereas it is testified that Howell was a robber, let the carter go 
 quit thereof. And note that he is in the parts of Jerusalem, but let 
 him come back safely, quit of that death. 
 
 
 
 STOREY v. STATE. 
 
 (Supreme Court of Alabama, 1882. 71 Ala. 329.) 
 
 Somerville, J. 1 The record contains some evidence remotely 
 tending to show that the prisoner was in pursuit of the deceased for 
 the purpose of recapturing a horse, which the deceased had cither 
 stolen, acquired by fraud, or else unlawfully converted to his own use. 
 
 If the property was merely converted, or taken possession of in 
 such manner as to constitute a civil trespass, without any criminal 
 it, it would not be lawful to recapture it by any exercise of force 
 which would amount even to a breach of the peace, much less a felo- 
 nious homicide. Street v. Sinclair, 71 Ala. 110; Burns v. Campbell, 
 Id. •-'"« 1. 
 
 Taking the hypothesis that there was a larceny of the horse, it 
 becomes important to inquire what would then be the rule. The lar- 
 ceny of a horse is a felony in this state, being specially made so by 
 statute, without regard to the value of the animal stolen. Code 1876, 
 
 i Part of tho opinion Is omitted.
 
 % <*mJt^l<*v»ri~i ^- WWM "*~ 
 
 Sec. 3) authorized acts. 235 
 
 § 4358. The fifth charge requested by the defendant is an assertion 
 of the proposition that if the horse was feloniously taken and carried 
 away by the deceased, and there was an apparent necessity for killing 
 deceased in order to recover the property and prevent the consum- 
 mation of the felony, the homicide would be justifiable. The question 
 is thus presented as to the circumstances under which one can kill 
 in order to prevent the perpetration of a larceny which is made a 
 felony by statute — a subject full of difficulties and conflicting expres- 
 sions of opinion from the very earliest history of our common-law 
 jurisprudence. The broad doctrine intimated by Lord Coke was that 
 a felon may be killed to prevent the commission of a felony without 
 any inevitable cause, or as a matter of mere choice with the slayer. 
 
 3 Inst. 56. If such a rule ever prevailed, it was at a very early day, 
 before the dawn of a milder civilization, with its wiser system of more 
 benignant laws ; for Blackstone states the principle to be that "where 
 a crime, in itself capital, is endeavored to be committed by force, it 
 is lawful to repel that force by the death of the party attempting." 
 
 4 Com. 181. The reason he assigns is that the law is too tender of 
 the public peace and too careful of the lives of the subjects to "suffer 
 with impunity any crime to be prevented by death, unless the same, 
 if committed, would also be punished by death." It must be admitted 
 that there was far more reason in this rule than the one intimated by 
 Lord Coke, although all felonies at common law were punishable by 
 death, and the person killing, in such cases, would seem to be but the 
 executioner of the law. Both of these views, however, have been re- 
 pudiated by the later authorities, each being to some extent materially 
 modified. All admit that the killing cannot be done from mere choice ; 
 and it is none the less certain that the felony need not be a capital 
 one to come within the scope of the rule. Gray v. Combs, 7 J. J. 
 Marsh. (Ky.) 478, 23 Am. Dec. 431; Cases on Self-Defense (Horr. 
 & Thomp.) 725, 867; Oliver v. State, 17 Ala. 587; Carroll v. State, 
 23 Ala. 28, 58 Am. Dec. 282. 
 
 We find it often stated, in general terms, both by text-writers and 
 in many well-considered cases, that one may, as Mr. Bishop expresses 
 it, "oppose another who is attempting to perpetrate any felony, to the 
 extinguishment, if need be, of the felon's existence." 1 Bish. Cr. 
 Law, §§ 849, 850 ; State v. Rutherford, 8 N. C. 457, 9 Am. Dec. 658. 
 It is observed by Mr. Bishop, who is an advocate of this theory, that 
 "the practical carrying out of the right thus conceded is in some cir- 
 cumstances dangerous, and wherever admitted it should be carefully 
 guarded." 1 Bish. Cr. Law, § 855. 
 
 After a careful consideration of the subject we are fully persuaded 
 that the rule as thus stated is neither sound in principle, nor is it sup- 
 ported by the weight of modern authority. The safer view is that 
 taken by Mr. Wharton, that the rule does not authorize the killing 
 of persons attempting secret felonies, not accompanied by force. 
 Wharton on Horn. § 539. Mr. Greenleaf confines it to "the preven-
 
 236 THE CRIMINAL ACT. (Ch. 6 
 
 tion of any atrocious crime attempted to be committed by force., such 
 as murder, robbery, house-breaking in the nighttime, rape, mayhem, 
 or any other act of felony against the person" (3 Greenl. Ev. 115) ; 
 and such seems to be the general expression of the common-law text- 
 writers (1 Russ. Cr. 665-670; 4 Black. Com. 178-180; Whart. Amer. 
 Cr. Law, 298-403; 1 East, P. C. 271; 1 Hale, P. C. 488; Foster, 
 274). It is said by the authors of Cases on Self-Defense, that a kill- 
 ing which "appears to be reasonably necessary to prevent a forcible 
 and atrocious felony against property is justifiable homicide." "This 
 rule," it is added, "the common-law writers do not extend to secret 
 felonies, or felonies not accompanied with force," although no modern 
 case can be found expressly so adjudging. They further add: "It 
 is pretty clear that the right to kill in defense of property does not 
 extend to cases of larceny, which is a crime of a secret character, al- 
 though the cases which illustrate this exception are generally cases 
 of theft of articles of small value." Cases on Self-Defense (Horr. & 
 Thomp.), 901, 902. This was settled in Reg. v. Murphy, 2 Crawf. 
 & Dix, C. C. 20, where the defendant was convicted of shooting one 
 detected in feloniously carrying away fallen timber which he had 
 stolen from the premises of the prosecutor; the shooting being done 
 very clearly to prevent the act, which was admitted to be a felony. 
 Doherty, C. J., said: "I cannot allow it to go abroad that it is law- 
 ful to fire upon a person committing a trespass and larceny; for that 
 would be punishing, perhaps with death, offenses for which the law 
 has provided milder penalties." This view is supported by the follow- 
 ing cases: State v. Vance, 17 Iowa, 144, McClelland v. Kay, 14 B. 
 Mon. (Ky.) 106, and others not necessary to be cited. See Cases on 
 Self-Defense, p. 901, note. 
 
 There is no decision of this court, within our knowledge, which 
 conflicts with these views. It is true the rule has been extended to 
 statutory felonies, as well as felonies at common law, which is doubt- 
 less the correct doctrine; but the cases adjudged have been open 
 crimes committed by force, and not those of a secret nature. Oliver's 
 Case, 17 Ala. 587; Carroll's Case, 23 Ala. 28, 58 Am. Dec. 282; Dill's 
 Case, 25 Ala. 15. 
 
 In Pond v. People, 8 Mich. 150, after indorsing the rule which we 
 have above stated, it was suggested by Campbell, J., that there might 
 possibly be some "exceptional cases" not within its influence, a prop- 
 osition from which we are not prepared to dissent. And again in 
 Gray v. Combs, 7 J. J. Marsh. (Ky.) 478, 483, 23 Am. Dec. 431. it 
 was said by Nicholas, J., that the right to kill in order to prevent the 
 perpetration of crime should depend "more upon the character of the 
 crime and the time and manner of its attempted perpetration than up- 
 on the degree of punishment attached by law." There is much rea- 
 son in this view, and a strong case might be presented of one's shoot- 
 ing a felon to prevent the asportation of a stolen horse in the night- 
 time, where no opportunity is afforded to recognize the thief or obtain
 
 Sec. 3) authorized acts. 237 
 
 speedy redress at law. Both the Roman and Athenian laws made this 
 distinction in favor of preventing the perpetration of theft by night, 
 allowing in each instance the thief to be killed when necessary, if 
 taken in the act. 4 Black. Com. 180, 181. 
 
 The alleged larceny, in the present case, if it occurred at all, 
 was in the open daylight, and the defendant is not shown to have been 
 unable to obtain his redress at law. Where opportunity is afforded 
 to secure the punishment of the offender by due course of law, the 
 case must be an urgent one which excuses a killing to prevent any 
 felony, much less one not of a forcible or atrocious nature. Whart. 
 Horn. §§ 536-538. "No man, under the protection of the law," says 
 Sir Michael Foster, "is to be the avenger of his own wrongs. If they 
 are of such a nature for which the law of society will give him an 
 adequate remedy, thither he ought to resort." Foster, 296. It is 
 everywhere settled that the law will not justify a homicide which is 
 perpetrated in resisting a mere civil trespass upon one's premises or 
 property, unaccompanied by force or felonious intent. Carroll's Case, 
 23 Ala. 28, 58 Am. Dec. 282. Clark's Man. Cr. Law, §§ 355-357; 
 Whart. on Horn. § 540. The reason is that the preservation of human 
 life is of more importance than the protection of property. The law 
 may afford ample indemnity for the loss of the one, while it utterly 
 fails to do so for the other. 
 
 The rule we have above declared is the safer one, because it better 
 comports with the public tranquility and the peace of society. The 
 establishment of any other would lead to disorderly breaches of the 
 peace of an aggravated nature, and therefore tend greatly to cheapen 
 human life. This is especially true in view of our legislative policy, 
 which has recently brought many crimes formerly classed and punish- 
 ed as petit larcenies within the class of statutory felonies. It seems 
 settled that no distinction can be made between statutory and common- 
 law felonies, whatever may be the acknowledged extent of the rule. 
 Oliver's Case, 17 Ala. 587; Cases on Self-Def. 901, 867; Bish. Stat. 
 Cr. § 139. The stealing of a hog, a sheep, or a goat is, under our 
 statute, a felony, without regard to the pecuniary value of the animal. 
 So would be the larceny of a single ear of corn, which is "a part of 
 any outstanding crop." Code 1876, § 4358; Acts 1880-81, p. 47. 
 It would be shocking to the good order of government to have it pro-' 
 claimed, with the sanction of the courts, that one may in the broad 
 daylight commit a willful homicide in order to prevent the larceny 
 of an ear of corn. In our judgment the fifth charge requested by the 
 defendant was properly refused. 
 
 It cannot be questioned, however, that if there was in truth a larceny 
 of the prisoner's horse, he or any other private person had a lawful 
 right to pursue the thief for the purpose of arresting him and of re- 
 capturing the stolen property. Code 1876, §§ 4668-4670; 1 Bish. 
 Cr. Proc. §§ 164, 165. He is not required in such case to inform 
 the party fleeing of his purpose to arrest him, as in ordinary cases.
 
 238 THE CRIMINAL ACT. (Cll. 6 
 
 Code 1876, § 4669. And he could, if resisted, repel force with force, 
 and need not give back or retreat. If under such circumstances the 
 party making resistance is unavoidably killed, the homicide would be 
 justifiable. 2 Bish. Cr. Law, § 647 ; 1 Russ. Cr. 665 ; State v. Roane, 
 13 N. C. 58. If the prisoner's purpose was honestly to make a pur- 
 suit, he would not for this reason be chargeable with the imputation 
 of having wrongfully brought on the difficulty; but the law would 
 not permit him to resort to the pretense of pursuit as a mere color- 
 able device beneath which to perpetrate crime. 
 
 There are some other questions raised in the record which we do 
 not think necessary to discuss. The judgment of the circuit court 
 must be reversed, and the cause remanded for a new trial. In the 
 meanwhile the prisoner will be retained in custody until discharged 
 by due process of law. 
 
 IV. Acts in Self-Defense. 
 
 ANONYMOUS. 
 (Northampton, Eyre. 1330. Fitzh. Abr., Corone, PI. 284.) i 
 
 S being indicted for the death of N, and pleading not guilty, the 
 A jury found that S and N quarreled on their way to the public house, 
 and in the course of the quarrel N struck S with an ash stick on the 
 head so that he fell, and S got up and ran away as far as he could 
 and N followed S with the stick in his hand to kill him. if he could, 
 and drove him to a wall situated between two houses which he could 
 in no wise pass ; and when S saw that N wanted to kill him with the 
 stick, and that he could not avoid death unless he defended himself. 
 he took a certain poleaxe and struck N with it on the head, of which 
 N immediately died, and the said S immediately after fled as far as 
 he could. Wherefore the jurors said that S killed N in self-defense, 
 and not by felony or of malice aforethought, and that he could not 
 otherwise escape from -death. Therefore S is remitted to prison to 
 wait for the mercy of the king in the custody of the sheriff. His 
 chattels xx. s., whereof the sheriff is to answer, and then S is to pur- 
 chase a pardon etc. 2 
 
 i The translation Is that given in 3 Stephen's Hist. Cr. L. 38. 
 
 zCompare Roberts' Case, Sel. P. O. (Sel. Soc.), pi. TO (1208), In which It 
 appears thai there is douM al this time as to what is to be done with one 
 who kills In sell defense. The Mirror (page 157) mentions as one of the abuses 
 
 "that B man who has committed bomlClde of necessity, or for the pence, or 
 In self-defen e, Is taken or detained until he has purchased Hie king's charter 
 ■ r pardon, just as though it were a case of misadventure." 
 
 ' 
 
 ■ 
 
 ■ 
 X
 
 QM-v^iwkMuir*' M' ^" " 4wf ) 11 3 A<k' f 0[ r 
 
 Sec. 3) AUTHORIZED ACTS. 239 
 
 FLOYD v. STATE. 
 (Supreme Court of Georgia, 1867. 36 Ga. 91, 91 Am. Dec. 760.) 
 
 Indictment for stabbing. Motion for new trial. Decided by Judge 
 Holt, Burke superior court, November term, 1860. 
 
 Floyd stood conversing with the two Messrs. Brinson. He had 
 open in his hand such a knife as farmers carry, and was perhaps 
 whittling or cleaning his finger nails. 
 
 Whilden approached and asked Floyd if he had been accusing 
 him of collecting money for his (Floyd's) slave and stealing it. Floyd 
 said he did. Immediately Whilden struck Floyd with his fist, and 
 Floyd stabbed him, and, pursuing Whilden, who walked backward, 
 continued stabbing him. 
 
 Whilden drew his knife. Floyd ran. Whilden caught him and 
 stabbed him. An interval occurred, while each was examining his 
 wounds. Whilden got an ax helve, ran after Floyd (who retreated), 
 and beat him. 1 
 
 Harris, J. The general rule in criminal law in reference to assaults 
 made on a person, and how they may be repelled defensively, is that 
 contained in the charge of Judge Holt to the jury which tried this in- 
 dictment: "That whether the stabbing by plaintiff in error amounted 
 to self-defense depended on the nature and violence of the assault 
 made on him." In this case the plaintiff in error received a blow with 
 the fist of the assailant. As it does not appear by the record that 
 there was great superiority in physical strength on the part of the 
 assailant over that possessed by Floyd, nor it appearing that Floyd 
 was in ill health at the time, nor other circumstance existing at the 
 time which produced relatively great inequality between them for sud- 
 den combat, we are not able to find any fact in the case which could 
 justify him in repelling the blow of the fist by the use of his knife. As 
 a general rule it may safely be asserted that the law will not excuse 
 or justify a man who repels a blow given him with the fist by stabbing 
 the assailant. 
 
 Judgment affirmed. 
 
 GOODALL v. STATE. 
 
 (Supreme Court of Oregon, 1861. 1 Or. 333, 80 Am. Dec. 396.) 
 
 Boice, J. 2 The next question in this case arises on the several in-/ 
 structions of the judge as to what would justify the taking of life in) 
 self-defense, and all there is on the subject in the instructions may be' 
 considered together. After instructing the jury in the language of the 
 
 i The charge of the trial judge is omitted. 
 
 2 Only so much of the opinion as relates to self-defense is printed.
 
 240 THE CRIMINAL ACT. (Ch. 6 
 
 statute, the court said: "To justify a killing in self-defense it was 
 necessary that an assault should have been committed by the person 
 killed 2 ; that it was not enough that the party killed had a pistol in his 
 hand, but that there must have been a presentation of it, or some dem- 
 onstration of shooting." The court also said that "the having a drawn 
 pistol in his hand by deceased would not be enough, although deceased 
 had threatened to take the life of the prisoner, and these threats had 
 
 v been communicated to him." 
 
 f I understand, by these instructions, that the court held the law 
 to be that an actual assault with the pistol was necessary to justify 
 the killing, which means that there must have been on the part of the 
 deceased an attempt to shoot the prisoner, and until such attempt 
 was made the prisoner would not have been justified in acting on the 
 defensive and in shooting the deceased, although deceased appeared 
 before him with a drawn pistol and had threatened his life. If such 
 be the law, then there is no such thing as available self-defense — when 
 the assailant makes his attack with a pistol or other kind of firearm ; 
 for the assault and discharge of the weapon are simultaneous, or so 
 nearly so, that resistance would be almost impossible. Suppose A, 
 who has threatened the life of B., appears to B. suddenly, at the house 
 of the latter, at an unusual place, armed with a gun, and in a threaten- 
 ing attitude, and B., induced by the previous threats and unusual ap- 
 pearance of his adversary, and believing his own life in imminent 
 danger, and having himself a pistol, shoots A. and kills him, before 
 A. actually makes an attempt to level his gun. Would this be mur- 
 der? I think not. Such a case, unchanged by other evidence than 
 the killing, would lack all indications of malicious intent, which is 
 necessary to constitute murder. 
 
 If B. under such circumstances, acting from appearances, and be- 
 lieving that he was in actual and imminent clanger of death or great 
 bodily harm, should kill A., I think he would be justified. By the com- 
 mon law one acting from appearances in such a case, and believing 
 the apparent danger imminent, would be justified, though it afterwards 
 turned out that there was no real danger, and that the gun of the as- 
 sailant was only loaded with powder. This is, certainly, as strong a 
 case for justification as when one, alarmed in the night by the cry of 
 thieves, rushes forth in the dark, and by mistake kills an innocent 
 person; and in such a case the slayer would be excused at common 
 law. Such was the dictum in the Levett Case, which has been ap- 
 proved by the English commentators. 1 East, P. C. 274; 1 Russell 
 on Crimes, 669. 
 
 In th'- ca e 1" fore us there was evidence tending to show that when 
 the prisoner first saw deceased, at the time the fatal shots were dis- 
 
 2 in Boy v. st;ii.-, (•,:> \,.t,. mo, no n. w. 228 (1008), it was held that a 
 person attacked or Formidably threatened by three persona may avail himself 
 nf the right "f self-defense by using commensurate force againsl the nearest 
 assailant, although it Is uol from him, bu1 from the others, thai barm is feared.
 
 Sec. 3) AUTHORIZED ACTS. 241 
 
 charged, deceased had a pistol in his hand and was standing on the 
 doorstep of the prisoner's private room, which was an unusual place 
 for one who had threatened the prisoner's life, and whom he consid- 
 ered his enemy. And I think the court should have instructed the 
 jury that if they believed, from the evidence in the case, that there was 
 reasonable ground for Goodall to believe his life in danger, or that 
 he was in danger of great bodily harm from the deceased, and that 
 such danger was imminent, and he did so believe, and, acting on such 
 belief, killed the deceased, he was excusable, and that it was not nec- 
 essary that he should wait until an assault was actually committed. 
 
 The whole doctrine of self-defense was most ably examined and 
 illustrated in the case of Thomas O. Selfridge, tried in the Supreme 
 Court of Massachusetts; and the doctrines of that case were adopted 
 in the state of New York in the case of Shorter v. People, 2 N. Y. 
 193, 51 Am. Dec. 286, where it is declared by Bronson, J., in speak- 
 ing of the same case, "that when, from the nature of the attack, there 
 is reasonable ground to believe that there is a design to destroy his 
 life, or commit any felony upon his person, the killing the assailant 
 will be excusable homicide, although it should afterwards appear that 
 no felony was intended.'' "To this doctrine," says the learned judge, 
 "I fully subscribe. A different rule would lay too heavy a burden on 
 poor humanity." He further says that the authority of the Selfridge 
 Case was followed by the revisors in framing the statutes of New 
 York touching this question. And our statute is a copy of the New 
 York statute, and, if the doctrine is properly applicable there, then it 
 is applicable here also. 3 
 
 As to what will constitute reasonable grounds of belief in such 
 cases, sufficient to justify taking life, must depend, to a considerable 
 extent, on the circumstances of each particular case. And the rea- 
 sonableness of the appearances under which a party claims to justify 
 may very properly be left to a jury, under the instructions of the court. 
 And I think it is going too far to lay down the general rule that an 
 actual assault must be committed ; for such a rule would take away, 
 or at least render almost unavailable, the right of self-defense when 
 firearms are used. 
 
 It is also assigned as error that the court instructed the jury "that, 
 killing being admitted by the accused, it devolved on him to prove that 
 he was justifiable." I think this instruction in conformity with the 
 common law ; but it is not necessary to examine the common-law au- 
 •.horities on this subject, for our statute, in the fourth section of the 
 third chapter, provides: "There shall be some other evidence of malice 
 than the mere proof of killing, to constitute murder in the first or 
 second degree." This, I think, is conclusive on this subject; for it 
 
 s Accord: Murray v. Commonwealth, 79 Pa. 311 (1875) ; People v. Flahave, 
 58 Cal. 249 (1881) ; State v. Jones, 29 S. C. 201. 7 S. E. 296 (1888) ; Keith 
 v. State, 97 Ala. 32, 11 South. 914 (1892); Enri<?ht v. People. 155 111. 32, 39 
 N. E. 561 (1895) ; Godwin v. State, 73 Miss. 873, 19 South. 712 (1S96). 
 
 Mik.Cr.L.— 16
 
 
 242 THE CRIMINAL ACT. (Ch. 6 
 
 was the evident intention of the Legislature, by this statute, to impose 
 on the prosecution some further burden than the mere proof of the 
 killing to establish the malice, which, under our statute, is not to be 
 presumed. from the mere proof of the killing, and I think the instruc- 
 tion of the court was error. 
 
 There is another ground of error assigned, which is that the court 
 erred in permitting the declarations of Potts to be given in evidence, 
 made to his son prior to the killing, and declaring the reason why- 
 he was going to the house of Aldrich, where he was killed. I think 
 this evidence was improperly admitted, and that the only declarations 
 of the deceased which are competent are dying declarations, or those 
 which are a part of the res gestae. 
 
 Judgment is reversed. 4 
 
 ROWE v. UNITED STATES. 
 
 'Supreme Court of the United States, 189G. 164 U. S. 546, 17 Sup. Ct. 172, 
 
 41 L. Ed. 547.) 
 
 Mr. Justice Harlan, after stating the case as above reported, de- 
 livered the opinion of the court. 8 
 
 We think that these portions of the charge (to which the accused 
 duly excepted) were well calculated to mislead the jury! They ex- 
 pressed an erroneous view of the law of self-defense. The duty of 
 the jury was to consider the case in the light of all the facts. The 
 evidence on behalf of the government tended to show that the ac- 
 cused sought a difficulty with some one; that on behalf of the ac- 
 cused would not justify any such conclusion, but rather that he had 
 the reputation of being a peaceable and law-abiding man. But the 
 evidence on both sides was to the effect that the deceased used lan- 
 guage of an offensive character for the purpose of provoking a diffi- 
 culty with the accused, or of subjecting him to the indignity of a 
 personal insult. The offensive words did not, it is true, legally justi- 
 fy the accused in what he did — the evidence of the government tend- 
 ing to show that "he kicked at deceased, hitting him lightly on the 
 lower part of the leg"; that on the part of the accused tending to 
 show that he "kicked at" the deceased and "probably struck him 
 lightly." According to the evidence of the defense, the accused 
 then "stepped hark, and leaned up against the counter," indicating 
 thereby, it may be, that he neither desired nor intended to pursue 
 the matter further. If the jury believed the evidence on behalf of the 
 defense, they mighl reasonably have inferred from the actions of the 
 accused thai he did not intend to make a violent or dangerous per- 
 
 4 Compare Lander v. State, 12 Tex. 462 (1864); Bohannon v. enmmon- 
 wealtb, 8 Bnah (Ky.) 481, 8 km. Rep. 474 (1871); Stoneman v. Common- 
 wealtta, 2. r > Grat (Va.) 887 (1874); Stnte v. Evans, 66 Mo. 574 (1877). 
 
 I Part of this rase is omltb 'I
 
 
 Sec. 3) AUTHORIZED ACTS. 243 
 
 sonal assault upon the deceased, but only, by kicking at him or kick- 
 ing him lightly, to express his indignation at the offensive language 
 of the deceased. It should have been submitted to the jury whether 
 the act of the accused in stepping back and leaning against the coun- 
 ter, not in an attitude for personal conflict, was intended to be, and 
 should have been reasonably interpreted as being, a withdrawal by 
 the accused in good faith from further controversy with the deceased. 
 
 If the accused did in fact withdraw from the combat, and intended 
 so to do, and if his conduct should have been reasonably so interpret- 
 ed by the deceased, then the assault of the latter with a deadly weapon, 
 with the intent to take the life of the accused or to do him great bod- 
 ily harm, entitled the latter to the benefit of the principle announced 
 in Beard v. United States, 158 U. S. 550, 564, 15 Sup. Ct. 962, 39 
 L. Ed. 1086, in which case it was said : "The defendant was _whexe. — 
 he had a right to be when the deceased advanced upon him in a 
 threatening manner and with a deadly weapon ; and if the accuseci__ 
 did not provoke the assault, and had at the time reasonable grounds 
 to believe, and in good faith believed, that the deceased intended To\ 
 take his life or to do him great bodily harm, he was not obliged to 
 retreat, nor to consider whether he could safely retreat, but was eiP 
 titled to stand his ground and meet any attack made upon him witlTa 
 deadly weapon, in such a way and with such a force as, under all tfi£__ 
 circumstances, he at the moment honestly believed, and had reason^_ 
 able grounds to believe, was necessary to save his own life or to pro- \ 
 tect himself from great bodily injury." 'x 
 
 The charge, as above quoted, is liable to other objections. The 
 court said that both the accused and the deceased had a right to be 
 in the hotel, and that the law of retreat in a case like that is different 
 from what it would be if they had been on the outside. Stillj__the_ 
 court said that, under the circumstances, both parties were under a 
 duty to use all reasonable means to avoid a collision that woul d le ad____ 
 to a deadly conflict, such as keeping out of the affray, or by not go- 
 ing into it, or "by stepping to one side" ; and if the accused could 
 have saved his life, or protected himself against great bodily harm, 
 by inflicting a less dangerous wound than he did upon his assailant, 
 or "if he could have paralyzed that arm," without doing more serious 
 injury, the law commanded him to do so. In other words, accord- 
 ing to the theory of the charge, although the deceased sprang at the 
 accused, with knife in hand, for the purpose of cutting him to pieces, 
 yet if the accused could have stepped aside, or paralyzed the arm of 
 his assailant, his killing the latter was not in the exercise of the right 
 of self-defense. The accused was where he had the right to be, and 
 the law did not require him to step aside when his assailant was 
 rapidly advancing upon him with a deadly weapon. The danger in 
 which the accused was, or believed himself to be, at the moment he 
 fired, is to some extent indicated by the fact, proved by the govern- 
 ment, that immediately after he disabled his assailant (who had twe
 
 
 
 244 THE CRIMINAL ACT. (Ch. 6 
 
 knives upon his person) he said that he (the accused) was himself 
 mortally wounded and wished a physician to be called. The accused 
 was entitled, so far as his right to resist the attack was concerned, to 
 remain where he was, and to do whatever was necessary, or what he 
 had reasonable grounds to believe at the time was necessary, to save 
 his life or to protect himself from great bodily harm ; and under the 
 circumstances it was error to make the case dep end in w hole or in 
 part upon the inquiry whether the accused could, by stepping aside, 
 have avoided the attack, or could have so carefully aimed his pistol 
 as to paralyze the arm of his assailant without more seriously wound- 
 ing him. 
 
 Without referring to other errors alleged to have been committed, 
 the judgment below is reversed, and the case is remanded for a new 
 trial. 
 
 Reversed. 
 
 Mr. Justice Brown and Mr. Justice Peckham dissented. 
 
 STATE v. GARDNER. 
 
 (Supreme Court of Minnesota, 1905. 9G Minn. 318, 104 N. W. 971, 2 L. R. 
 
 A. [N. S.] 49.) 
 
 Jaggard, J., 1 delivered the opinion of the court. 
 
 The assignments of error raise many questions as to the correct- 
 ness of the charge of the court. The court charged, inter alia: "But 
 to justify the taking of human life in self-defense it must appear from 
 all the evidence that the defendant not. only really and in good faith 
 endeavored to avoid an encounter and to escape from his assailant 
 before the fatal shot was fired. * * * The right to defend him- 
 self by taking the life of his assailant would not arise until the de- 
 fendant had at least attempted to avoid the necessity of such an act; 
 but in this connection I also charge you that when he is assailed or 
 threatened he is not necessarily bound to retreat, and whether, under 
 the circumstances of this case, the defendant was justified in doing 
 what he did, is a matter for you to determine, and not for the court to 
 de< il'." We are of the opinion that this charge was erroneous in it- 
 self I Perkins v. State, 78 Wis. 551, 47 N. W. 827; Shell v. State, 
 88 Ala. 14, 7 South. 40), and was not applicable to the facts proved. 
 The common-law doctrine of "retreat to the wall" is thus referred to 
 in a frequently quoted paragraph from Coke (3 Inst. 55) : "Some 
 be voluntary, and yet being done upon an inevitable cause are no 
 felony; as if A. be assaulted by B., and they fight together, and be- 
 fore any mortal blow given, A. giveth back until he comcth unto a 
 hedge, wall, or other strait, beyond which he cannot pass, and then, in 
 
 i Part of the opinion is omitted.
 
 Sec. 3) AUTHORIZED ACTS. .245 
 
 his own defense and for safeguard of his own life, killeth the other; 
 this is voluntary, and yet no felony." The rule on this subject has 
 tended in some American jurisdictions to be enforced with strictness; 
 in others, to be largely modified, in accordance with changed condi- 
 tions, and, indeed, to be positively relaxed. See State v. Matthews, 
 148 Mo. 185, 71 Am. St. Rep. 598, 49 S. W. 10S5 ; Runyan v. State. 
 57 Ind. 80, 84, 26 Am. Rep. 52. In a leading case (Erwin v. State, 
 29 Ohio St. 186, 23 Am. Rep. 733), after a review of the common- 
 law authorities, in consequence of this confusion in the later cases, 
 the court, inter alia, said: "The question then, is simply this: Does 
 the law hold a man who is violently and feloniously assaulted respon- 
 sible for having brought such necessity upon himself, on the sole 
 ground that he failed to fly from his assailant when he might have 
 safely done so? The law, out of tenderness for human life and the 
 frailties of human nature, will not permit the taking of it to repel a 
 mere trespass, or even to save life where the assault is provoked ; but 
 a true man, who is without fault, is not obliged to fly from an as- 
 sailant, who by violence or surprise maliciously seeks to take his 
 life or do him enormous bodily harm." The Supreme Court of the 
 United States approved of this rule and of Runyan v. State, supra, 
 in 1895, in Beard v. United States, 158 U. S. 550, 39 L. Ed. 1086, 
 15 Sup. Ct. 962. 
 
 In Rowe v. United States, 164 U. S. 546, 41 L. Ed. 547, 17 Sup. Ct. 
 172, the defendant, a Cherokee Indian, had an altercation with the 
 deceased at a hotel. After a quarrel at the supper table the accused 
 swore at the deceased and kicked him. The accused then leaned 
 up against the counter, as if, according to his own testimony, he had 
 abandoned the controversy. Immediately the deceased sprang at 
 him with a knife, cutting him. Thereupon the accused shot and kill- 
 ed his assailant. The trial court charged in a carefully qualified 
 way as to the duty of retreat. Mr. Justice Harlan, inter alia, said: 
 "The accused was entitled, so far as his right to resist the attack was 
 concerned, to remain where he was, and to do whatever was necessa- 
 ry, or what he had reasonable grounds to believe at the time was nec- 
 essary, to save his life or to protect himself from great bodily harm ; 
 and, under the circumstances, it was error to make the case depend, 
 in whole or in part, upon the inquiry whether the accused could, by 
 stepping aside, have avoided the attack, or could have so carefully 
 aimed his pistol as to paralyze the arm of his assailant, without more 
 seriously wounding him." This accords with the general law on the 
 subject. Harbour v. State, 140 Ala. 103, 37 South. 330; People vs 
 Newcomer, 118 Cal. 263, 50 Pac. 405; State v. Cushing, 14 Wash. 
 527, 53 Am. St. Rep. 883, 45 Pac. 145 ; Babcock v. People, 13 Colo. 
 515, 22 Pac. 817; Brown v. Commonwealth, 86 Va. 466, 10 S. E. 
 745; State v. Cain, 20 W. Va. 679; State v. Evans, 33 W. Va. 417, 
 10 S. E. 792; Commonwealth v. Selfridge (1806; Mass.) Horr. & 
 T. Cas 1; Pond v. People, 8 Mich. 150; People v. Macard, 73 Mich.
 
 24:6 THE CRIMINAL ACT. (Ch. 6 
 
 15, 40 N. W. 784; State v. Bartlett, 170 M6. 658, 59 L. R. A. 756, 
 71 S. W. 148; Willis v. State, 43 Neb. 102, 61 N. W. 254; 25 Am. 
 & Eng. Enc. Law (2d Ed.) p. 272, note 2. 
 
 The rule of law in this state is not inconsistent with this conception 
 of the duty to retreat so far as is involved in the case at bar. 
 
 The doctrine of "retreat to the wall" had its origin before the gen- 
 eral introduction of guns. Justice demands that its application have 
 due regard to the present general use and to the type of firearms. It 
 would be good sense for the law to require, in many cases, an at- 
 tempt to escape from a hand to hand encounter with fists, clubs, and 
 even knives, as a condition of justification for killing in self-defense; 
 while it would be rank folly to so require when experienced men, arm- 
 ed with repeating rifles, face each other in an open space, removed 
 from shelter, with intent to kill or to do great bodily harm. What 
 might be a reasonable chance for escape in the one situation might in 
 the other be certain death. Self-defense has not, by statute or by 
 judicial opinion, been distorted, by an unreasonable requirement of the 
 duty to retreat, into self-destruction. 
 
 In the case at bar one of the theories of the state was that the de- 
 fendant shot Garrison while he was at work leaning over the poles. 
 In this view the charge as to escape was not involved, and the sub- 
 ject should not have been referred to. It became relevant only in 
 the consideration of the defendant's narrative of the tragedy. Ac- 
 cording to that narrative, the accused knew of the threats made by 
 Garrison to kill him. Garrison was only 30 feet away from his rifle, 
 leaning against the house or a log. Defendant had more than 100 
 paces to travel before he could reach the poplars surrounding Garri- 
 
 »n's curtilage. An attempted retreat finally must have resulted in 
 rxposing him to a duel with a dead shot like Garrison. It would not 
 have been reasonable to have required him to have undertaken to 
 reach and take Garrison's gun. Garrison, the larger man, would, as 
 he said, have broken him in two before he could have secured it and 
 protected himself. It was apparently as dangerous for him to re- 
 treat as to stand his ground. Duncan v. State, 49 Ark. 543, 547, 
 548, 6 S. W. 164. To use the expression of Chief Justice Gilfillan, 
 
 f erred to, if the jury believed the defendant's narrative, he had no 
 "practicable means to avoid threatened harm by an attempl to escape 
 or retreat. He had no reasonable way open to retreat without bi- 
 asing his peril." Harbour v. State, Supra. He had "come to a 
 
 rait." Coke, Inst, supra. The fact that Gardner carried his gun did 
 not justify giving the instruction. His contention was that this was 
 i in accordance with a natural and the general custom of the wild and 
 ~rnnsettled wilderness in which he lived. Moreover, as was held in 
 People v. Macard, supra, a person knowing his life to be threaten- 
 ed and believing himself to be in danger of death or great bodily 
 
 harm, is nol obliged to remain at home in order to avoid an assault, 
 but may arm himself sufficiently to repel anticipated attack and pur-
 
 Sec. 3) AUTHORIZED ACTS. 247 
 
 sue his legitimate avocation; and if, without fault, he is compelled to 
 take life to save himself, he may use any weapon he may have secured 
 for that purpose, and the homicide is excusable. And see Bohannon v. 
 Commonwealth, 8 Bush (Ky.) 481, 8 Am. Rep. 474. It was accord- 
 ingly reversible error, in any view of the case, for the trial court to 
 have charged upon the subject of escape or retreat. 
 
 The judgment and order appealed from are reversed, and, in accord- 
 ance with section 7391, Gen. St. 1894, a new trial is directed. 
 
 PEOPLE v. BUTTON. 
 
 (Supreme Court of California, 1895. 10G Cal. 628, 39 Pac. 1073, 28 L. R. A. 
 
 591, 46 Am. St. Rep. 259.) 
 
 Garoutte, J. 1 The appellant was charged with the crime of mur- 
 der, and convicted of manslaughter. He now appeals from the judg- 
 ment and order denying his motion for a new trial. 
 
 For the perfect understanding of the principle of law involved in 
 this appeal it becomes necessary to state in a general way the facts 
 leading up to the homicide. As to the facts thus summarized there is 
 no material contradiction. The deceased, the defendant, and several 
 other parties were camped in the mountains. They had been drinking, 
 and, except a boy, were all under the influence of liquor more or less — 
 the defendant to some extent, and the deceased to a great extent. The 
 deceased was lying on the ground, with his head resting upon a rock, 
 when a dispute arose between him and the defendant, and the defend- 
 ant thereupon kicked or stamped him in the face. The assault was a 
 vicious one, and the injuries of deceased occasioned thereby most 
 serious. One eye was probably destroyed, and some bones of the 
 face broken. An expert testified that these injuries were so serious 
 as likely to produce in the injured man a dazed condition of mind im- 
 pairing the reasoning faculties, judgment, and powers of perception. 
 Immediately subsequent to this assault the defendant went some dis- 
 tance from the camp, secured his horse, returned, and saddled it, with 
 the avowed intention of leaving the camp to avoid further trouble. 
 The time thus occupied in securing his horse and preparing for de- 
 parture may be estimated at from 5 to 15 minutes. The deceased's 
 conduct and situation during the absence of defendant is not made 
 plain by the evidence, but he was probably still lying where assaulted. 
 At this period of time, the deceased advanced upon defendant with a 
 knife, which was taken from him by a bystander, whereupon he seiz- 
 ed his gun and attempted to shoot the defendant, and then was him- 
 self shot by the defendant and immediately died. There is also some 
 further evidence that deceased ordered his doe: to attack the defend- 
 
 't> 
 
 i Part of the opinion is omitted.
 
 iwfr r n <*-■ 
 
 '.-j r 
 
 
 
 
 
 248 THE CRIMINAL ACT. (Cll. 6 
 
 ant, and that defendant shot at the dog; but this evidence does not 
 appear to be material to the question now under consideration. 
 
 Upon this state of facts the court charged the jury as to the law of 
 the case, and declared to them in various forms the principle of law 
 which is fairly embodied in the following instruction: "One who has 
 sought a combat for the purpose of taking advantage of another may 
 afterward endeavor to decline any further struggle, and, if he really 
 and in good faith does so before killing the person with whom he 
 sought the combat for such purpose, he may justify the killing on the 
 same ground as he might if he had not originally sought such combat 
 for such purpose, provided that you also believe that his endeavor was 
 of such a character, so indicated as to have reasonably assured a rea- 
 sonable man that he was endeavoring in good faith to decline further 
 combat, unless you further believe that in the same combat in which 
 the fatal shot was fired, and prior to the defendant endeavoring to 
 cease further attack or quarrrel, the deceased received at the hands of 
 the defendant such injuries as deprived him of his reason or his 
 capacity to receive impressions regarding defendant's design and en- 
 deavor to cease further combat." 
 
 Knowledge of the withdrawal of the assailant in good faith from 
 the combat must be brought home to the assailed. He must be noti- 
 fied in some way that danger no longer threatens him and that all 
 fear of further harm is groundless. Yet, in considering this ques- 
 tion the assailed must be deemed a man of ordinary understanding. 
 He must be gauged and tested by the common rule — a reasonable man. 
 His acts and conduct must be weighed and measured in the light of 
 that test, for such is the test applied wherever the right of self-defense 
 is made an issue. His naturally demented condition will not excuse 
 him from seeing that his assailant has withdrawn from the attack in 
 good faith. Neither his passion nor his cowardice will be allowed to 
 blind him to the fact that his assailant is running away and all dan- 
 ger is over. If the subsequent acts of the attacking party be such as 
 to indicate to a reasonable man that he in good faith has withdrawn 
 from the combat, they must be held to so indicate to the party attack- 
 ed. Again, the party attacked must also act in good faith. He must 
 act in good faith toward the law, and allow the law to punish the 
 offender. He must not continue the combat for the purpose of wreak- 
 ing venj , for then he is no better than his adversary. The law 
 will not allow him to say, "I was not aware that my assailant had 
 withdrawn from the combat in good faith," if a reasonable man so 
 placed would have been aware of such withdrawal. If the party as- 
 sailed ha- eyes to see he must sec, and if he has ears to hear he must 
 hear. I te has no right to close his eyes or deaden his ears. 
 
 This brings us directly to the consideration of (he point in the 
 case raised by the charge <>f the court to the jury. While the de- 
 ed had eves to sec and ears In hear, he had no mind to compre- 
 hend, for his mind was t.i! en from him by the defendant at the firs) 
 assault. Throughout this whole affray, it must be conceded that the
 
 SCC. 3) AUTHORIZED ACTS. 24I> 
 
 deceased was guilty of no wrong-, no violation of the law. When he 
 attempted to kill the defendant he thought he was acting in self-de- 
 fense, and according to his lights he was acting in self-defense. To 
 be sure, those lights, supplied by a vacant mind, were dim and un- 
 satisfactory, yet they were all the deceased had at the time, and not 
 only were furnished by the defendant himself, but the defendant, in 
 furnishing them, forcibly and unlawfully deprived the deceased of 
 others which were perfect and complete. But where does the defend- 
 ant stand? It cannot be said that he was guilty of no wrong, no vio- 
 lation of the law. It was he who made the vicious attack. It was he 
 who was guilty of an unprovoked and murderous assault. It was he 
 who unlawfully brought upon himself the necessity for killing the de- 
 ceased. It cannot be possible that in a combat of this character no 
 crime has been committed against the law. Yet the deceased has 
 committed no offense. Neither can the defendant be prosecuted for 
 an assault to commit murder, for the assault resulted in the commis- 
 sion of a homicide as a part of the affray. For these reasons we con- 
 sider that the defendant cannot be held guiltless. 
 
 Some of the earlier writers hold that one who gives the first blow 
 cannot be permitted to kill the other, even after retreating to the wall, 
 for the reason that the necessity to kill was brought upon himself. 1 
 Hawkins' Pleas of the Crown, 87. While the humane doctrine, and 
 especially the modern doctrine, is more liberal to the assailant, and 
 allows him an opportunity to withdraw from the combat, if it is done 
 in good faith, yet it would seem that under the circumstances here 
 presented the more rigid doctrine should be applied. The defend- 
 ant not only brought upon himself the necessity for the killing, but, 
 in addition thereto, brought upon himself the necessity of killing a 
 man wholly innocent in the eyes of the law; not only wholly inno- 
 cent as being a person naturally non compos, but wholly innocent by 
 being placed in this unfortunate condition of mind by the act of the 
 defendant himself. We conclude, therefore, that the instruction con- 
 tains a sound principle of law. The defendant was the first wrong- 
 doer. He was the only wrongdoer. He brought on the necessity for 
 the killing, and cannot be allowed to plead that necessity against the 
 deceased, who at the time was non compos by reason of defendant's 
 assault. The citations we have taken from Hale, the Ohio case, and 
 the Nevada case, all declare that the assailant must notify the assailed 
 of his withdrawal from the combat in good faith before he will be 
 justified in taking life. Here the defendant did not so notify the de- 
 ceased. He could not notify him, for by his own unlawful act he 
 had placed it out of his power to give the deceased such notice. Un- 
 der these circumstances he left no room in his case for the plea of 
 self-defense. 
 
 For the foregoing reasons, the judgment and order are reversed, 
 and the cause remanded for a new trial. 
 
 Beatty, C. J., and Harrison, McFarland, and Van Fleet, JJ., 
 concurred.
 
 -50 THE CRIMINAL ACT. (Ch. 6 
 
 MIERS v. STATE. 
 
 (Court of Criminal Appeals of Texas, 1895. 34 Tex. Cr. R. 161, 29 S. W. 
 
 1074, 53 Am. St. Rep. 705.) 
 
 Hurt, P. J. 1 That the arrest was illegal is not questioned. The 
 court so instructed the jury. Being an illegal arrest, what were the 
 rights of the accused under the circumstances? Being without capias 
 in this case, the deceased, a constable, had no right to arrest the 
 appellant, and in making the arrest was a trespasser, and the appellant 
 had the right to resist by force, using no more than was necessary 
 to resist the unlawful acts of the officer. An officer who acts without 
 proper authority, and the person doing the same act who is not an 
 officer, stand on the same footing; and any third person may lawfully 
 interfere to prevent an illegal arrest, doing no more than is necessary 
 for that purpose. West v. Cabell, 153 U. S. 78, 14 Sup. Ct. 752, 
 38 L. Ed. 643; Commonwealth v. Crotty, 10 Allen (Mass.) 404, 405, 
 87 Am. Dec. 669. If deceased, Burnett, had no right to arrest appellant, 
 and if in so doing he was a trespasser, had he the right to retain him 
 in custody? Does the fact that appellant yielded, without resistance, 
 or without protesting against the trespass, make the arrest legal? 
 Does this fact deprive the man falsely imprisoned of the right to as- 
 sert his rights and regain his liberty, or convert in some mysterious 
 manner the trespass into a lawful act? The affirmative of these ques- 
 tions has no support in principle or reason. Being wrongfully and il- 
 legally deprived of his liberty, appellant had the same right to regain it, 
 and right to use the same means, force, or resistance, as he had in pre- 
 venting an illegal arrest. Being falsely imprisoned, he had the right 
 to his liberty, and, for the purpose of obtaining it, could use all force 
 necessary for that purpose, taking care to use no more than was 
 required. What degree of violence is necessary always depends 
 upon that used or attempted by his adversary. To illustrate: A. is 
 illegally arrested, and attempts^ to regain his liberty. His adversary 
 proposes to prevent this by the use of deadly weapons. A. may 
 resort to such weapons. A. flees from such arrest The officer pre- 
 sents, in a shooting position, his gun, demanding of him to halt. A. 
 can shoot, if it reasonably appears to him that the officer will shoot. 
 But if A. is unlawfully arrested, and, being in no danger of violence 
 from the officer, resorts immediately to deadly weapons or great vio- 
 (that which is unnecessary to secure his liberty), he would not 
 be justified or excused. He would be guilty (if he should slay the 
 officer) of murder in the first degree, if he, anticipating the arrest, 
 lould prepare himself with a deadly weapon and deliberately and 
 llmly form the intention to kill the officer. Rex v. Patience, 7 Car 
 & P. 775; Reg. v. Allen, 17 Law Times (N. S.) 222. But, express 
 
 i pjirt of the opinion is omitted.
 
 0Uv^ yt, ^o tUok^ ^x\ <wA \*\ \&- 
 
 Sec. 3) AUTHORIZED ACTS. 251 
 
 malice apart, if A. should use at once, without first resorting to milder 
 means, greater force or violence than was necessary to obtain his 
 liberty, and should kill the officer, he would be guilty of manslaughter. 
 The illegal arrest being a great provocation, the killing would be 
 attributed to the passion arising therefrom. West v. Cabell, supra, 
 and authorities there cited. In every case in which the defendant 
 is held guilty of manslaughter, he used more or greater violence or 
 force than was necessary to prevent the arrest or regain his liberty. 
 If the accused used no more force than was necessary, he would be 
 guilty of no offense. Let us suppose that the party slain (be he officer 
 or not) was authorized to make the arrest and detain the accused. 
 If he exercises his authority in a wanton and unnecessary manner, he 
 becomes a trespasser, and if by his acts he creates in the mind of the 
 accused a reasonable apprehension or fear of death or great bodily 
 harm the homicide would be excusable. State v. Oliver, 2 Houst. 
 (Del.) 605, 606. If the officer has no authority to arrest, in attempt- 
 ing or making the arrest, he becomes a trespasser, and stands on no 
 better ground than a third party — than if he were not an officer. 
 The arrest being illegal, he has no right to detain the prisoner, and 
 hence no authority to prevent an escape, and in preventing an escape 
 he would still be a trespasser, and stand to the prisoner on the same 
 ground as a private citizen. 
 
 Appellant was illegally arrested, and attempted to regain his liberty. 
 The deceased, who was a trespasser, threw his Winchester upon him, 
 covering him with it. Appellant charged his gun while deceased was 
 covering him, and, he still retreating, deceased, with his gun still in 
 a shooting position, demanded of appellant to halt, when they both 
 shot, shooting at the same time ; each receiving wounds, and that of 
 deceased's proving mortal. And what is the law applicable to this 
 case? The court should have instructed the jury that the arrest was 
 illegal, and that deceased was a trespasser in making the arrest and 
 detaining the prisoner; that the appellant had the right to regain his 
 liberty, and that deceased had no right to prevent him; and that if 
 deceased, to prevent an escape, threw his gun upon him, commanding 
 him to halt, and that appellant, believing that his life was in danger, 
 or that he was in danger of serious bodily injury, shot and killed the 
 deceased, to acquit him. * * * 
 
 Reversed and remanded. 2 
 
 Henderson, J., concurs. Davidson, J., absent. 
 
 a Compare State v. Cantieny, 34 Minn. 1, 24 N. W. 458 (18S5).
 
 252 THE CRIMINAL ACT. (Ch. 6 
 
 V. Acts in Defense of Others. 
 
 SNEIX v. STATE. 
 
 (Court of Appeals of Texas, 1S90. 29 Tex. App. 236, 15 S. W. 722, 25 Am. 
 
 St. Rep. 723.) 
 
 Willson, J. 1 We are of the opinion that the evidence fairly pre- 
 sents the issue of self-defense as to this defendant. It shows that 
 defendant's brother was in an angry and violent struggle with the 
 deceased ; that deceased during the struggle attempted to possess him- 
 self of a club — a deadly weapon — with the apparent intention of using 
 it upon defendant's brother; and it was at this juncture that the de- 
 fendant interposed, secured the club, and struck or attempted to 
 strike the deceased with the same. Up to this act of his it does not 
 appear from the evidence that he engaged in any way in the difficulty 
 between his brother and the deceased. It does not appear that he 
 knew that his brother was using or intending to use a knife in the 
 conflict. It does not appear that he knew or had reason to believe 
 that his brother intended to kill the deceased or to inflict upon him 
 serious bodily injury. On the contrary, the evidence tends to show 
 that the appearances indicated to him that his brother and the deceased 
 were merely engaged in a contest with their fists, neither using or at- 
 tempting to use a deadly weapon. 
 
 Such being the state of the case, when the deceased attempted to 
 possess himself of the club with the apparent purpose of using the 
 same upon his brother, the defendant was justified in interfering in 
 defense of his brother and in securing the club, and even in striking or 
 attempting to strike the deceased with it, if necessary to prevent the 
 deceased from getting and using it. 2 It is not the intent which act- 
 uated the defendant's brother, but the intent with which the defend- 
 ant acted, which constitutes the criterion in passing upon the issue 
 of guilt in this case. "According to his own act and intent does the 
 law measure him, and hold him guilty of murder, or of manslaughter, 
 or entirely justifiable, as the facts may warrant." And the intent of 
 his brother is immaterial, unless it be shown that the defendant knew 
 or might reasonably have known such intent. Guffee v. State. 8 
 Tex. App. 187; Sterling v. State, 15 Tex. App. 210; Dyson v. State, 
 14 Tex. \pp. ■!■". 1 ; Foster v. State, 8 Tex. App. 248 ; Kemp v. State, 
 11 Tex. App. HI; North v. State, 12 Tex. App. 111. 
 
 In his charge to the jury the learned trial judge did not submit t lie 
 issue of self-defense. No instruction whatever was given to the jury 
 
 i Part <>f this case Is omitted. 
 
 cord: Protection <<\ servant, Hathaway v. stnfp. .°,l' Fla. B6, 13 South. 
 592 (1893); protection <>r wife against criminal assault, Baylor v. Common- 
 wealth, !ii Kv. 184, 80 s. w. :;:mi (1895); protection of sisin- against abduc- 
 tion, Bedford v. State, ::''- Tex. Cr. u. 477, 88 s. w. 210 (1896).
 
 
 Sec. 3) AUTHORIZED ACTS. 253 
 
 relating to self-defense, and because of the omission to submit said 
 issue and to properly instruct the jury in relation thereto the charge 
 of the court is fundamentally defective and insufficient (Bell v. State, 
 17 Tex. App. 538; Meuly v. State, 26 Tex. App. 274, 9 S. W. 563, 
 8 Am. St. Rep. 477), and for this reason the judgment is reversed, 
 and the cause is remanded. 
 Reversed and remanded. 
 
 STATE v. GREER. 
 (Supreme Court of West Virginia, 1883. 22 W. Va. 800.) 
 
 Johnson, P. 1 Instructions Nos. 5 and 6 are as follows: 
 
 "(5) If the jury believe from the evidence that John M. Greer, 
 the brother of the prisoner, was in fault, and by his fault brought 
 about the assault by the deceased upon him, said John M. Greer, then 
 said John M. Greer was bound to retreat as far as he could, unless 
 prevented by the fierceness of the attack threatened by the deceased, 
 before James A. Greer, the prisoner, was justifiable in taking the life 
 of said Robert G. Maguire in order to save the life of John M. Greer, 
 or to protect him from great bodily harm. 
 
 "(6) If the jury believe from the evidence that John M. Greer, the 
 brother of the prisoner, provoked the deceased to make an assault 
 upon him, the said John M. Greer, then said John M. Greer was 
 bound to retreat as far as possible, consistent with his own safety 
 at the time, before the prisoner, James A. Greer, was justifiable in 
 killing the deceased to save the life of said John M. Greer, or to pro- 
 tect him, said John M. Greer, from great bodily harm." 
 
 The right of self-defense may be exercised in behalf of a brother, 
 or of a stranger. Deitz's Criminal Law, § 126a, and cases cited. 
 What one may lawfully do in defense of himself, when threatened 
 with death or great bodily harm, he may do in behalf of a brother; 
 but, if the brother was in fault in provoking an assault, that brother 
 must retreat as far as he safely can, before his brother would be 
 justified in taking the life of his assailant in his defense of the brother. 
 But if the brother was so drunk as not to be mentally able to know his 
 duty to retreat, or was physically unable to retreat, a brother is not 
 bound to stand by and see him killed or suffer great bodily harm, 
 because he does not under such circumstances retreat. It is only the 
 faultless who are exempt from the necessity of retreating while act- 
 ing in self-defense. Cain's Case, supra. Those in fault must retreat, 
 if able to do so. If from the fierceness of the attack or for other 
 reasons they are unable to retreat, they will be excused by the law 
 for not doing so. As a general legal proposition the fifth and sixth 
 instruction propounded the law correctly ; but in view of the evidence 
 
 i Part of the opinion is omitted.
 
 • J I -* II • » I 
 
 254 THE CRIMINAL ACT. (Cll. 6 
 
 in this case, if the defense had asked it, the instruction should have 
 been modified by inserting the following words: "Unless the jury be- 
 lieve from the evidence that the said John M. Greer was so drunk as 
 to be mentally incapable of knowing that it was his duty to retreat, 
 or physically unable to retreat." 
 
 MORRISON v. COMMONWEALTH. 
 (Court of Appeals of Kentucky, 1903. 24 Ky. Law Rep. 2493, 74 S. W. 277.) 
 
 Hobson, J. 1 The case comes to this : Did Morrison, when he 
 saw Alex Dean committing an assault on his sister, and pushing or 
 striking her against the house, have a right to intervene between the 
 brother and sister for her protection from a simple battery? In 1 
 Bishop on Criminal Law, § 877, it is said: "The doctrine here is that 
 whatever one may do for himself he may do for another. The com- 
 mon case, indeed, is where a father, son, brother, husband, servant, 
 or the like, protects by the stronger arm the feebler. But a guest 
 in the house may defend the house, or the neighbors of the occupant 
 may assemble for its defense; and. on the whole, though distinctions 
 have been taken and doubts expressed, the better view plainly is that 
 one may do for another whatever the other may do for himself." This 
 statement of the law, as applied to simple batteries and breaches of 
 the peace, is broader than it is usually put in the authorities. Thus, 
 in 3 Bl. Com. 3, it is said : "The defense of one's self, or the mutual 
 and reciprocal defense of such as stand in relations of husband and 
 wife, parent and child, master and servant. In these cases, if the 
 party himself, or any of these, his relations, be forcibly attacked in 
 his person or property, it is lawful for him to repel force by force; and 
 the breach of the peace which happens is chargeable upon him only 
 who began the affray." In a note to this "it is added: "When a per- 
 son does not stand in either of these relations, he cannot justify an 
 interference on behalf of the party injured, but merely as an indiffer- 
 ent person to preserve the peace." See, to the same effect, 2 Am. & 
 Eng. Enc. Law, p. 981 ; 2 Roberson, Criminal Law, § 543. 
 
 When a felony is apparently about to be committed, as where there 
 is apparent danger of loss of life by the person assailed, or of great 
 bodily harm to him, a different rule prevails, and there any third per- 
 son may lawfully intervene for his protection, using such means for 
 his defense as the person assaulted himself may lawfully use. But 
 where the assault is not felonious, and the person intervenin not 
 
 stand in any of the relations to the one assaulted excepted ou1 of the 
 common-law rule, then he who intervenes can only act for the preser- 
 vation of the He cannol come into the difficulty for the pur- 
 pose of taking the place of the person assailed and continuing the 
 
 1 J'nrt of the opinion Is omitted.
 
 Sec. 3) AUTHORIZED ACTS. 255 
 
 fight. This is the common-law rule, as we understand the authori- 
 ties, and we cannot depart from it or extend it. 
 
 It is conceded on all hands that Morrison ran down on tiptoe to 
 where Alex Dean and his sister were, some 90 feet away. If, when 
 he got there, he at once stabbed Dean in the back, as stated by the 
 witnesses for the commonwealth, he was the aggressor. The instruc- 
 tion of the court, which submitted to the jury the question whether 
 Morrison believed, or had reasonable grounds to believe, himself in 
 danger of death or great bodily harm at the hands of Dean, when he 
 stabbed him, was more favorable to Morrison than the law warranted, 
 as the court did not submit to the jury the question whether Morrison 
 was the aggressor. Morrison knew that the illicit relations between 
 him and Ida Dean were the foundation of the animosity of Alex Dean 
 to him. He also knew that this was the cause of the quarrel between 
 the brother and sister. With this knowledge he ran on tiptoe down 
 to where they were, armed with a dirk; and if, as he says, he caught 
 Alex Dean by the shoulder and shoved them apart, saying to him, 
 "You can't beat her where I am," his interference was not as an 
 indifferent person to preserve the peace, for his first act was to com- 
 mit a battery on Alex Dean by taking him by the shoulder, and this 
 was followed up by a declaration which he could but know, under 
 all the circumstances, would make Alex Dean regard him as an assail- 
 ant. To hold that he intervened, under the evidence, as an indifferent 
 person to preserve the peace, would be to give no real effect to the 
 common-law rule allowing greater rights to parent and child, husband 
 and wife, master and servant, or the like, than to other persons in 
 cases of simple batteries or breaches of the peace. According to his 
 own testimony, the manner of his approach, his conduct on reaching 
 Alex Dean, and his declaration to him, under the circumstances, were 
 not those of one bent on peace, but of one proposing to champion the 
 woman and fight her battles for her. He was, therefore, the aggres- 
 sor, and the court did not err in refusing to admit the proof as to the 
 bad character of Alex Dean or his previous threats ; and this evidence, 
 if admitted, could not have been of material service to the defendant 
 under the view of the law which we have indicated, for the jury might 
 have inferred that, when he interfered with knowledge of the previous 
 threats and the character of Dean, he anticipated the result that en- 
 sued. The verdict of the jury finding him guilty of manslaughter, 
 and fixing his punishment at 11 years in the penitentiary, seems to 
 have been due to their accepting the version of the transaction as 
 given by the witnesses for the commonwealth, and their believing that 
 Morrison acted in sudden heat on seeing the woman assailed by her 
 brother. — 
 
 Judgment affirmed. 
 
 Nunn, J., dissents.
 
 256 THE CRIMINAL ACT. (Ch. 6 
 
 VI. Acts in Defense of Property. 
 HINCHCLIFFE'S CASE. 
 
 (York Assizes, 1S23. 1 Lew. 161.) 
 
 Prisoner was indicted for manslaughter. It appeared that a man 
 and his servant had insisted upon placing corn in the prisoner's barn, 
 which she refused to allow. They exerted force. A scuffle took place, 
 in which the prisoner received a blow on the breast, whereupon she 
 threw a stone at the deceased (the master), who, falling down, was 
 taken up dead. 
 
 Per Holroyd, J. "The case fails on two 
 that the death was caused by Tfie"l5t0w^ar 
 that the deceased received it in an attempt to invade her barn against 
 her will. She had a right to defend her barn, and to employ such force 
 as was reasonably necessary for that purpose, and she is not answer- 
 able for any unfortunate accident that may have happened in so doing." 
 Under his lordship's direction, the prisoner was acquitted, and forth- 
 with discharged. 
 
 <-~»/> ,,.»~, -„.-.— & ..--, 
 
 vo accounts. v it is not proved 
 
 ind; if it had been, it appears 
 
 ^J^. U^ flo U- fC/- STATE v. MORGAN. 
 
 (Supreme Court of North Carolina, 1842. 25 N. C. 186, 38 Am. Doe. 714.) 
 
 Gaston, J. 1 Assuming, then, that the constable had wrongfully 
 taken the gun, and that the defendant had a right to require its re- 
 turn, and that exertion of force, nothing short of that which was be- 
 gun on the part of the defendant, would have availed to compel its 
 return, in our opinion the assault is not justified. It was made with a 
 deadly weapon, which, if used, would have probably occasioned death, 
 and made without any previous resistance on the part of the officer. 
 It was, therefore, an assault with intent to kill. If this intent were law- 
 ful, the assault with that intent was lawful. If this intent were un- 
 lawful, an assault with that intent cannot stand justified. Now, when 
 
 it is said that a man may rightfully use as much force as is necessary 
 
 Jj>r the protection of his person or property, it should be recollected 
 that this rule is subject to this most important modification: jjuu; he 
 
 •v^sli.ill not, except in extreme cases, endanger human life or do great 
 bodily harm. It is not every right of person, and sjjjl legs of property, 
 that can lawfully be a erted, or every wrong thai may rightfully be 
 redn ed, by extreme remedies. There is a recklessness, a wanton 
 di regard of humanity and social duty, in taking or endeavoring to take 
 
 the life of a fellow being, in order to save one's self fr<>m a compara- 
 tively slight wrung, whi< h i tltially wicked, and which the law ab- 
 
 
 
 I I 'art of this case Is omitted.
 
 Sec. 3) AUTHORIZED ACTS. 257 
 
 hors. You may not kill, because you cannot otherwise effect your ob- 
 ject, although the object sought to be effected is right. You can only 
 kill to save life or limb, or prevent a great crime, or to accomplish a 
 necessary public duty. Thus an' officer, acting under a legal process, 
 has a right to arrest the person against whom it is directed, and retake 
 him, if he break custody; and for such purpose he may and ought to 
 use necessary force. Yet, if the process be in a civil case, or for a mis- 
 demeanor only, and the officer, although he cannot otherwise arrest or 
 retake his prisoner, intentionally kills him, it is murder. 1 Hale, 481 ; 
 Foster, 271 ; 1 East, P. C. c. 5. §§ 306, 307. The purpose is indeed 
 rightful, but it is not one of such paramount necessity as to justify 
 a resort to such desperate means. So it is clear that if one man delib- 
 erately kills another to prevent a mere trespass on his property, wheth- 
 er that trespass could or could not be otherwise prevented, he is guilty 
 of murder. If, indeed, he had at first used moderate force, and this 
 had been returned with such violence that his own life was endangered, 
 arfd then he killed from necessity, it would have been excusable homi- 
 cide; not because he could take life to save property, but he might 
 take the life of the assailant to save his own. If these principles be 
 right, and we think they cannot be contested, it would follow that, if 
 unfortunately the rage of the defendant in this case had not been 
 pacified, and the fatal blow had fallen and death ensued, it would have 
 been a clear case of murder. If so, then the assault made was an as- 
 sault with intent to commit murder. A justifiable assault with intent 
 to commit murder is a legal solecism. 
 
 This opinion must be certified to the superior court of Henderson, 
 with instructions to render judgment for the state upon the special 
 verdict. 
 
 Per Curiam. Ordered accordingly.* 
 
 VII. Acts in Defense of Dwelling. A* W» \ ^> * 
 
 If anybody in a case of Hamsoken, which is the invasion of a house 
 against the peace of the king, defends himself in his own house, and 
 the invader is killed, he shall remain unpersecuted and unavenged, if 
 he, whom he invaded, could not otherwise defend himself, for it is 
 said he is not worthy to enjoy peace, who is not willing to keep it. 
 
 Bracton, f. 144 b. 
 
 2 Accord: Reg. v. Sullivan, 1 Car. & M. 118 (1841); People v. Horton, 4 
 
 Mich. G7 (185G) ; State v. Shippey, 10 Minn. 223 (Gil. ITS), SS Am. Dec 70 
 
 (18G5) ; Davison v. People, 90 111. 221 (1878) ; Wallace v. U. S., 162 U. S 406, 
 
 16 Sup. Ct. 859, 40 L. Ed. 1039 (1805). Cf. People v. Payne, 8 Cal. 341 (1857). 
 
 Mik.Ce.L.— 17
 
 258 THE CRIMINAL ACT. (Ch. 6 
 
 COOK'S CASE. 
 (King's Bench, 1639. 3 Croke, 537.) 
 
 Cook was indicted for the murder of Marshal. Upon his arraign- 
 ment, he pleaded not guilty; and it was found, that the said Marshal 
 was a bailiff to the sheriff of Somerset, and had several warrants up- 
 on several capias ad satisfaciendum against the said Cook and his 
 father, directed to him and other bailiffs ; and that they, by virtue or 
 colour thereof, entered into the said Cook's stable and outhouse, and 
 hid themselves there all night ; and at eight of the clock the next morn- 
 ing came to Cook's dwelling-house, and called him to open his doors 
 and suffer them to enter, because they had such warrants upon such 
 writs, at the suit of such persons, to arrest him, and willed him to 
 obey them. But the said Cook commanded them to depart, telling 
 them, they should not enter. And thereupon they brake a window, 
 and afterwards came to the door of the said house, and offered to 
 force that open, and brake one of the hinges thereof. Whereupon the 
 said Cook discharged his musquet at the said Marshal, and stroke him, 
 of which stroke the day following he died. The doubt was, whether 
 upon all this matter he be guilty of murder or manslaughter? 
 
 And it was now argued by Rolle, for Cook, that it was not murder ; 
 for although a bailiff were slain, yet it was by his own procurement 
 in doing an unlawful act, viz. : in breaking the window and door, and 
 attempting to enter and serve process, which is not lawful for a per- 
 sonal duty, unless in the king's case ; and for that purpose he cited 
 5 Co. 91, b, 92; Seamain's Case, 13 Edw. IV. 
 
 And after argument at the bar, all the Justices seriatim delivered 
 their opinions, that it was not murder, but manslaughter only; for 
 though he killed a bailiff, yet he killed him not in duly executing pro- 
 cess: for it is not murder, unless there be malitia praecogitata, or 
 malitia implicita; as to murder one suddenly, or in resistance of an of- 
 ficer doing his office; but that last ought to be where he is duly ex- 
 ecuting his office, by serving the process of law, wherein he is assisted 
 cum potestate regis et legis: but here this bailiff was slain in doing 
 an unlawful act, in seeking to break open the house to execute pro- 
 cess for subject, which he ought not to do by the law ; and although 
 be might have entered if the door had been opened and arrested the 
 party, and it had been lawful, yet lie ought not to break open (he house, 
 for that is not warranted by law and especially lying there in the night, 
 and in the morning breaking the window and offering to force llie 
 r, which is not sufferable; for under colour tbercof one may enter 
 who hath not any such authority; and every one is to defend his own 
 house. Yet they all held, that it was manslaughtgrj for lie might 
 have resisted him without killing him; and when he saw him and shot 
 voluntarily at him, it was manslaughter.* 
 
 1 Part of tills case is omll ted.
 
 Sec. 3) AUTHORIZED ACTS. 259 
 
 FORD'S CASE. 
 
 (King's Bench, 1G27-31. Kelyng, 51.) 
 
 My brother Archer, upon discourse, told me he well remembered the 
 case of Mr. Ford, a Gent, in Gray's Inn, who in the time when Sir 
 Nich. Hyde was Chief Justice, was indicted of murder in the King's 
 Bench, and, upon the evidence, the case was that Mr. Ford, with other 
 company, was in the Vine Tavern in Holborn, in a room, and some 
 other company, bringing with them some women of ill fame, would 
 needs have the room where Mr. Ford was, and turn him out, to which 
 Mr. Ford answered, that if they had civilly desired it, they might 
 have had it, but he would not be turned out by force, a nd thereup on"' 
 t hey drew t hei r swords on Mr. Ford and his company, and Mr. Ford 
 drew his sword, killed one of them, and it was adjudged justifiable. 1 
 
 CARROLL v. STATE. 
 
 (Supreme Court of Alabama, 1853. 23 Ala. 28, 58 Am. Dec. 282.) 
 
 Goldthwaite, J. 2 We will first consider the questions presented by 
 the refusal of the court to give the charge requested. * * * 
 
 A mere civil trespass upon a man's house, unaccompanied with such 
 force as to make it a breach of the peace, would not be a provocation 
 which would reduce the killing to manslaughter, if it was done under 
 circumstances from which the law would imply malice, as with a 
 deadly weapon. For trespasses with force it may be murder or man- 
 slaughter, according to the circumstances. The owner may resist the 
 entry, but he has no right to kill, unless it be rendered necessary to 
 prevent a felonious destruction of his property, or to defend himself 
 against loss of life or great bodily harm. If he kills when there is not 
 a reasonable ground of apprehension of imminent danger to his person 
 or property, it is manslaughter, and if done with malice, express or 
 implied, it is then murder. 
 
 The rule as to the extent of protection to the dwelling being ascer- 
 tained, there is but little difficulty in its application to the facts as stat- 
 ed upon the record. It is conceded most fully that, if the evidence 
 shows an assault upon the house or the person under circumstances 
 which would create a reasonable apprehension — that is, a just appre- 
 hension in the mind of a reasonable man — of the design to commit a 
 felony with force, or to inflict a personal injury which might result 
 
 i Seq. qu., Foster, 274. 
 
 Accord: Defense of possession of office building by one joint tenant against 
 another, Jones v. State, 76 Ala. 8 (18S4). 
 Compare Dakin's Case, 1 Lewin, C. C. 16G (1828). 
 * Part of this case is omitted.
 
 260 THE CRIMINAL ACT. (Cll. 6 
 
 in loss of life or great bodily harm, the danger of the design being 
 carried into execution being imminent and present, the person in whose 
 mind such an apprehension is induced, and over whose person or 
 property such danger is impending, may lawfully act upon appear- 
 ances and kill the assailant. The law in such a case would not require 
 that the danger should be real, that the peril should actually exist; 
 but it does require that the appearances should be such as would ex- 
 cite a reasonable apprehension of such peril, and if such appearances 
 do not exist the killing would be either murder or manslaughter. 
 
 Assuming, therefore, that the deceased came to his death by the 
 act of the prisoner, and by the use of a deadly weapon, and in the 
 aspect of the case as presented by the charge requested, the question 
 is simply whether the act was done under the necessity, real or appar- 
 ent, which the law requires. If it was not, it follows necessarily that the 
 prisoner was guilty either of murder or manslaughter; and, if there was 
 any evidence which tended to show that such necessity existed, the 
 charge requested should have been given. Without referring to the 
 evidence in detail, it is sufficient to observe that the bill of exceptions 
 shows that none was offered of any act of violence on the part of the 
 deceased, either in making the entry into the house, or after it had been 
 made, unless the entry itself, after he had been warned not to enter, 
 might be regarded as an act of violence. When the law speaks of a 
 forcible trespass, it means such a trespass as would amount to a breach 
 of the peace. Entering the house after a warning had been given 
 would have aggravated the trespass; but, if done without force, it 
 would not have been a breach of the peace. The whole evidence, 
 therefore, consisted of the previous threats made by the deceased and 
 the trespass committed by him. The threats, however, did not change 
 the character of the trespass and convert it into a trespass with force. 
 We have seen that, although a forcible trespass upon the dwelling- 
 house may in some cases authorize the killing of the assailant, vet it is 
 not every invasion even of this character upon a man's dwelling which 
 will reduce the killing to manslaughter. The charge requested refer- 
 red solely to the right of the prisoner to protect the possession of his 
 house, and the circumstances, therefore, must tend to prove a reason- 
 able appr< hension on his part of the existence of such a state of facts 
 as would relieve him from the crime of murder. Taken in connection 
 with the evidence, then, the charge asserted the proposition that, where 
 the evidence established only a trespass without force, it tended to cre- 
 ate a reasonable apprehension, not only that it was committed with 
 force, but under such circumstances as would be sufficient to reduce 
 the killing to manslaughter. We think there was no error in the re- 
 ll of this char 
 
 There is no error in the record, and the judgment is affirmed.
 
 Sec. 3) AUTHORIZED ACTS. 2G1 
 
 STATE v. TAYLOR. 
 
 (Supreme Court of North Caroliua, 1880. 82 N. C. 554.) 
 
 Indictment for an affray, tried at fall term, 1879, of Wake superior 
 court, before Avery, J. 1 
 
 Ashe, J. One witness, Bryan Smith, testified that the first he saw 
 was Williams at the door of Taylor's house "cutting or reaching into 
 the door, and Taylor came out striking at Williams with a whip- 
 staff, while Williams was cutting at Taylor with a razor; that Wil- 
 liams walked backwards, cutting with his razor, some 10 or 15 feet 
 from Taylor's door, and Taylor continued to advance upon him with 
 his whip-staff." When a trespasser or unwelcomed visitor invades 
 the premises of another, the latter has the right to remove him, and 
 the law requires that he should first request him to leave, and, if he 
 •does not do so, that he should lay his hands gently upon him; and, 
 if he resists, he may use sufficient force to remove him, taking care, 
 however, to use no more force than is necessary to accomplish that 
 object. But if the intruder defiantly stands his ground, armed with 
 a deadly weapon, the doctrine of "molliter manus" does not apply, 
 and the owner may at once resort to physical force ; and it is a ques- 
 tion for the jury to decide whether he used more force than was ne- 
 cessary. State v. Davis, 80 N. C. 351, 30 Am. Rep. 86. 
 
 As Williams was at the door of the defendant's house, reaching in 
 the door and cutting with a razor, and the defendant was striking at 
 him with a staff, we think the jury might have been warranted in 
 coming to the conclusion that it was the purpose of the defendant to 
 expel him from his house, as he had the right to do ; and then it would 
 have been a material inquiry for the jury whether the defendant had 
 used more force than was necessary. In this view of the case, it was 
 proper for the jury to ask the court for instructions as to the amount 
 of force that might lawfully be used by the defendant, Taylor, in order 
 to expel Williams from his house ; and we are of the opinion it was 
 the duty of the court to give the instructions, and in its failure to do 
 so there was error. 
 
 Let this be certified to the superior court of Wake county, that a 
 venire de novo may be awarded to the defendant. 
 
 Error. Venire de novo. 2 
 
 i Part of the opinion is omitted. 
 
 2 "There was. however, asked for accused an Instruction to the effect 'that 
 defendant was not required to escape or retreat, but had a right to stand his 
 ground and use such force as was necessary to eject the deceased from his 
 premises, even to taking his life.' That instruction should not have been 
 given, because it implied the right of accused to use necessary force, even to 
 taking life, in order to eject deceased from his premises, who had been invited 
 there, and was then his guest." Lewis, J., in Eversole v. Commonwealth, 17 
 Kv. Law Rep. 12. r )9, 34 S. W. 231 (1896). Accord: State v. Mcintosh, 40 S. C. 
 349, 18 S. E. 1033 (1893).
 
 262 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 
 CHAPTER VII. 
 COMBINATIONS OF PERSONS IN CRIME. 
 
 SECTION 1.— PRINCIPAL IN THE FIRST DEGREE. 
 
 By what hath been formerly delivered, principals are in two kinds, 
 principals in the first degree, which actually commit the offense ; prin- 
 cipals in the second degree, which are present, aiding, and abetting 
 of the fact to be done. 
 
 So that regularly, no man can be a principal in felony, unless he 
 be present, unless it can be in case of wilful poisoning, wherein he that 
 layeth or infuseth poison with the intent to poison any person, and 
 the person intended, or any other, take it in the absence of him that 
 layeth it, yet he is a principal. * * * 
 
 A lets out a wild beast, or employs a madman to kill others, whereby 
 any is killed, A is principal in this case, tho' absent, because the in- 
 strument cannot be a principal. Dalt. Cap. 108. 
 
 Hale, P. C. c. 55. 
 
 REGINA v. MANLEY. 
 
 (Somerset Assizes, 1844. 1 Cox, C. C 104.) 
 
 Indictment for larceny. 
 
 The facts, as proved by the prosecution, were that the prisoner was 
 an apprentice of the prosecutor; that he had induced the son of the 
 prosecutor, a child of the age of nine years, to take money from his 
 father's till, and give to him. On cross-examination, it further appear- 
 ed that the child had done the like for other boys. 
 
 Cox, for the prisoner, submitted that the evidence did not sustain 
 the indictment. The prisoner was charged with stealing money as 
 principal. The evidence showed him to be either an accessory or a 
 receiver. If an offense be committed through the medium of an in- 
 nocent agent, the employer, though absent when the act was done, is 
 answerable as a principal. R. v. Giles, 1 Moody, C. C. lfiG; Reg. v. 
 Michael, 2 Moody, C. C. 120, 9 Car. & P. 356. Bui if the instrument 
 be aware of the consequences of his act, he is the principal in the first 
 ree; and the employer, if he he absent when the fact is committed, 
 is an accessory before the fact. R. v. Stewart, R. & R. 363. In this 
 case the evidence had shown beyond doubt thai the child was of the 
 of discretion and fully aware of the consequences of his act. 
 
 Td |Uwa*A t
 
 -Or^^^ n*Ut*^f p^ W*7 
 
 Sec. 1) PRINCIPAL IN THE FIRST DEGREE. 203 
 
 Wightman, J. What do you mean by an innocent agent, if this 
 child be not one? 
 
 Cox: An agent who, from age, defect of understanding, ignorance 
 of the fact, or other cause, cannot be particeps criminis. 
 
 Wightman, J. But though an act done through the medium of 
 an innocent agent makes the prisoner a principal, how do you show 
 that he is not a principal, where the act is done through the medium 
 of a responsible agent? 
 
 Cox: Bec ause^ if the agent be responsible, he becomes,, principal ; 
 and to constitute a principal he must be the actor or actual perpetrator 
 of the fact, or cognizant of the crime, and near enough to render as- 
 sistance. Though there be a previous concerted plan, those not pres- 
 ent or near enough to aid at the time when the offense is committed 
 are not principals, but accessories before the act. See cases cited Arch. 
 (9th Ed.) p. 4. 
 
 Wightman, J. It is a question for the jury, if the child was an 
 innocent agent. 
 
 Wightman, J. (to the jury). Apart from the consideration of 
 the guilt or innocence of the prisoner generally, if you believe the 
 story told by the child, you will have to determine whether the child-) 
 was an innocent agent in this transaction — that is, whether he knew \J 
 that he was doing wrong, or was acting altogether unconsciously of J 
 guilt, and entirely at the dictation of the prisoner; for, if you sh ould 
 be of opinion that he was not an innocent agent, you cannot find the 
 prisoner guilty as a principal under this indictment. 
 
 Verdict — Not guilty. 1 
 
 REX v. DADE. p,^^ 
 
 (Court for Crown Cases Reserved, 1831. 1 Mood. 307.) 
 
 The prisoners, except Dade, who had made his escape, were tried 
 before Mr. Justice Littledale, at the last Spring Assizes for the county 
 palatine of Lancaster in the year 1831. 
 
 First count was against Jonathan Dade (otherwise Day), Kirk- 
 wood, and Stansfield for forging a promissory note whose tenor fol- 
 lows: 
 
 "No. 3,534. Wirksworth and Ashburn, £5. 
 
 "I promise to pay the bearer on demand five pounds, here or al 
 Messrs. Smith, Payne & Smith, bankers, London, value received. 
 
 "Worksworth, 12th December, 1829. 
 
 "No. 3,534. 
 "For Richard Arkwright & Co. 
 
 "Charles Arkwright. 
 "Entered, William Peat, £5." 
 
 lAccord : Rex v. Giles, 1 Moody, Cr. Cas. 166 (1827) ; Berry v. State, 10 Ga, 
 511 (1851). 
 
 Wsfcfy <s wfof w\*ty ) (M MP *v 4^ ft* It
 
 ^tJU -At ft 
 
 2G4 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 —with intent to defraud Richard Arkwright and others, and against 
 Collins, Campbell, and Liddy for aiding, abetting, counseling and pro- 
 curing the said Dade, Kirkwood, and Stansfield to commit said felony 
 and forgery. Second. Same as first, with intent to defraud Samuel 
 Smith and others. Third. Same against Dade only for offering, utter- 
 ing, disposing of, and putting off said forged note, with intent to de- 
 fraud said Richard Arkwright and others. Fourth. The like, with in- 
 tent to defraud said Samuel Smith and others. Fifth. The like, with in- 
 tent to defraud George Sykes. 
 
 In the month of August last Collins and Campbell were desirous 
 that forged notes of the Wirksworth bank should be prepared, and it 
 was agreed by them that a person of the name of Wilson, who was 
 examined as a witness for the crown, should find the "bottoms," which 
 is a slang term used by persons who deal in forged notes to denote 
 paper for making the notes. In the course of that month Wilson told 
 Stansfield there were some people wanting bottoms for making Ark- 
 wright's notes. 
 
 Stansfield agreed to make the bottoms ; 200 were mentioned as be- 
 ing the number wanted. 
 
 Bottoms were afterward delivered by Stansfield to Wilson, and Wil- 
 son gave him credit for 350, at 4s. apiece, which came to £70; but 
 Stansfield in fact delivered 358 to Wilson. A discussion then took 
 place about the paper being such as was wanted, and Stansfield said 
 he thought they would do when they were completed; that. 350 
 
 would go. 
 
 Stansfield after this had interviews with Dade and Campbell, and 
 they each, at different times, complained of the paper. Campbell got 
 a genuine Wirksworth note, and Wilson sent it to Liddy. After this 
 Wilson gave the bottoms to Campbell to take to Liverpool. 
 
 About a week after, Wilson sent the pattern note to Liddy. He 
 (Wilson) saw Kirkwood, and inquired if he was the engraver from 
 Liverpool. Kirkwood asked about Liddy and Campbell, and at last 
 acknowledged that he was the engraver, and what his errand was 
 with Wilson ; that it was the Wirksworth notes. He said he had re- 
 ceived the £5 note and the bottoms from Liddy; and he said, if Wil- 
 son had a mind, he should have the plates, as he was dissatisfied with 
 Liddy and another person whom he mentioned. Some difference oc- 
 curred between them, Kirkwood and Campbell, and Kirkwood told 
 Wilson he would only deal with him, Wilson. 
 
 Wilson had told Dade that there would be such notes, and he would 
 have to fill them up; and 1 )ade said he would do so. After this Wil- 
 son went to Liverpool, and saw Kirkwood, who showed him the plate, 
 and said that was the thing thai the job was to be done with. 
 
 The next day Wilson, Kirkwood, and Campbell were together, and 
 agreed aboul the price of the notes; that Kirkwood should have £40 
 
 - 100 notes. Wilson took L50, and paid Kirkwood £60 for them. 
 
 The following day Kirkwood brought 350, and delivered them to
 
 hoM-** oyuX^ 
 
 SCC. 1) PRINCIPAL IN THE FIRST DEGREE. 2G5 
 
 Wilson, in the neighborhood of Liverpool, and Wilson delivered them 
 to Campbell. 
 
 Wilson and Campbell then went to Selford, to Dade's house, and 
 delivered the notes to Mrs. Dade. 
 
 The next day Dade saw the notes and approved of them; and he 
 was to fill them up by a pattern which Wilson had got from Collins, 
 to let Dade have ; and Dade finished the notes off. Dade promised not 
 to deliver any of them till he saw Wilson again. Collins and Camp- 
 bell were desirous to have some of them when they were ready. This 
 was on the 4,th of September. The note in question was proved f? b e 
 a forg ery. v It was proved to be one of Stansfield's make, -/'The en- 
 graving ^ was proved to be a n impression from th e pla^ w hirhirT^r 
 wood showed to ^ Wilson. " 
 
 The filling up of the note was proved to be in Dade's writing. It 
 did not appear that Stansfield, either before or at the time he delivered 
 the bottom to Wilson, knew that either Dade or Kirkwood had or were 
 to have anything to do with the transaction; neither did it appear, 
 that Kirkwood, when he delivered the impression of the plate to Wil-j 
 son, knew that either Dade or Stansfield had or were to have any-i 
 thing to do with the transaction. 
 
 The counsel for the crown referred to the case of Rex v. Bingley 
 and Others, Russell and Ryan, 446. 
 
 The jury found Kirkwood, Stansfield, Collins, and Campbell guilty; 
 Liddy not guilty. 
 
 But the learned judge doubted whether the present case went 
 the length of that, and whether the conviction, as far as related to 
 Kirkwood and Stansfield, was proper; and then, if it was wrong as 
 to them, the conviction of Collins and Campbell, who were charged 
 as accessories before the fact, would fall to the ground also, inas- 
 much as Dade was not upon his trial. 
 
 The learned judge respited the judgment till the next assizes, 
 that the opinion of the judges might be taken. 
 
 This case was considered at a meeting of all the judges, except 
 Garrow, B., and Patteson, J., in Trinity term, 1831; and 
 they were unanimously of opinion that Kirkwood was a principal, 
 and that the conviction was right. 1 
 
 REGINA v. JEFFRIES. 
 
 (Central Criminal Court, 1848. 3 Cox, C. C. 85.) 
 
 The prisoners were indicted for la rcen y in a dwelling house. It 
 appeared that Jeffries was clerk to OTTe Whittock, the prosecutor, 
 who was a coal dealer. The prosecutor's money chest was kept in 
 
 i Compare Rex v. Manners, 7 Car. & P. 801 (1837); Reg. v. Charles, 17 Cox, 
 C. C. 499 (1892). 
 
 < 

 
 266 COMBINATIONS OF PERSONS IN CRIME. (Cll. 7 
 
 a room adjoining the office, and of the door of this room the prisoner 
 Jeffries had a key. On the night of the larceny he was proved to 
 have unlocked the door and then gone away. About 20 minutes 
 afterwards the prisoner Bryant came to the room and removed the 
 money chest. It was attempted to be shown, on the part of the prisoner 
 Jeffries, that he was three-quarters of a mile from the prosecutor's 
 premises at the time Bryant was there. 
 
 Cresswell, J., told the jury that where one person opens the door 
 of a house which contains the articles stolen, and then goes away, 
 and another in his absence, but acting in concert with him, enters 
 the house and commits the larceny, the one who opens the door is 
 not guilty as a principal in the act. 
 
 Greaves, for the prosecution, submitted that Jeffries was guilty 
 of a joint larceny, although he was not actually present at the time 
 of the removal by Bryant. In the case of burglary, where the break- 
 ing is in one night and the entry the next night, a person present at 
 the breaking, though not present at the entering, is in law guilty 
 of the whole offense. Rex v. Jordan, 7 C. & P. 432. 
 
 Cresswell, J., said he would consult Mr. Justice Patteson, 
 sitting in the Nisi Prius Court. On his return, he said Mr. Justice 
 Patteson agreed with him, and entertained no doubt on the point ; 
 and accordingly 
 
 Cresswell, J., directed the jury, if they believed that Jeffries 
 was not present assisting Bryant at the time of the removal of the 
 chest, to acquit him. 
 
 SECTION 2.— PRINCIPAL IN THE SECOND DEGREE. 
 
 GRIFFITH'S CASE. 
 
 (Reporter's Note, 1553. 1 Plow. 97.) 
 
 Note (Reader) that the said case in 40 Ass. pi. 25, proves that 
 the law anciently was, that those who were present and abetting 
 were not Principals, but Accessories, as the Lord Bromley said before, 
 for the book is, that four were appealed as Principals, and the others 
 of Presence, Force, and Aid. And also in Mich. 10 Edw. Ill, 42, 
 it appears that one William de C. was appealed for that he was aiding, 
 present, and commanding one T., who on a certain Day killed W. 
 dc R., Husband of the Wife; and because the Principal was not at- 
 tainted by 'it, nor in other manner, the defendant was let to 
 Mainpr ize, and afterward the Principal was attainted by Exigent, 
 and then W. was put to answer. * * * But of laic time the Law 
 has been held contrary in this point, for now they are taken to be 
 Principals by all th< <>f the law * * * and in the Years
 
 Sec. 2) PRINCIPAL IN THE SECOND DEGREE. 207 
 
 of Henry IV, the Reader may see the law often adjudged accordingly, 
 viz., that those who are present and abetting to do the Act are 
 Principals, as well as he that does it. And it seems the Law was 
 so changed in the Time of the said King Henry IV, when the former 
 course was reproved and corrected in this point. 
 
 BANSON v. OSSLEY. 
 
 (King's Bench, 1686-87. 3 Mod. 121.) 
 
 An appeal of murder was tried in Cambridgeshire against three 
 persons, and the count was, that Ossley assaulted the husband of 
 the appellant and wounded him, in Huntingdonshire, of which wound 
 he languished and died in Cambridgeshire, and that L,ippon and Mar- 
 tin were assisting. 
 
 The jury found a special verdict, in which the fact appeared to 
 be, that Lippon gave the wound, and that Martin and Ossley were 
 assisting. 
 
 The first exception to this verdict was, That the count and the 
 matter therein alleged must be certain, and so likewise must the 
 verdict, otherwise no judgment can be given; but here the verdict 
 finding that another person gave the stroke, and not that person 
 against whom the appellant had declared, it is directly against her 
 own showing. 1 
 
 The Court answered to the first exception, that it was of no 
 force, and that the same objection may be made to an indictment, 
 where in an indictment if one gives the stroke and another is abet- 
 ting, they are both principally and equally guilty; and an indictment 
 ought to be as certain as a count in an appeal. 3 
 
 THORNTON v. STATE. 
 
 (Supreme Court of Georgia, 1903. 19 Ga. 437, 46 S. E. 640.) 
 
 Fish, P. J. 3 If Thornton had given his pistol to Amos, with in- 
 structions or advice to kill Sam Gordon with it, and Amos had done 
 so when Thornton was present, and nothing more had appeared, then 
 Thornton would have been guilty as principal in the second degree. 
 The evidence for the state shows, however, that when Thornton loaned 
 his pistol to Amos he told, or advised, him to kill Gordon with it, if 
 he should again rob Amos at cards. His advice or instruction to 
 
 i The second exception is omitted. 
 
 2 Accord: Doan v. State, 26 Ind. 495 (18GG) ; Commonwealth v. Kern. 1 
 Brewst. (Pa.) 350 (1807) ; State v. Hess, 65 N. J. Law, 544, 47 Atl. 806 (1900). 
 s Part of the opinion is omitted.
 
 -^^ /J <mw«( &/ ^^ ^ ^ K 1 " ' i> "^ 
 
 2G8 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 kill Gordon was, therefore, conditional, or dependent upon the event 
 that Gordon should again rob Amos at cards. Even granting that 
 there was enough in the evidence to authorize the jury to infer that 
 Amos and Gordon had, subsequently to the loan of the pistol, engaged 
 in playing cards, we think there is nothing in the evidence from which 
 the jury could fairly infer that Gordon had robbed Amos in such a 
 game, or that the killing was in consequence of such robbery. Of 
 course, we do not use the words "robbed" and "robbery" here in 
 their limited legal sense, but as including cheating in a game of cards 
 played for money. The evidence shows that Amos stated to Gordon 
 that he owed him a dime. This Gordon denied, but paid it, saying at 
 the time that he would make some of them shoot him ; whereupon 
 Amos immediately shot and killed him. From these facts we do not 
 think it can be successfully contended that the evidence shows that, 
 at the time of the homicide, there was in the mind of Thornton the 
 same criminal intent and felonious design that was in the mind of 
 Amos. The common intent and purpose in the minds of both, at the 
 time that Thornton furnished Amos with the pistol, was that Amos 
 should kill Gordon if the latter should again rob him at cards. 
 There is nothing in the evidence to show, or to authorize the jury in 
 finding, that Thornton ever had any other criminal intent. If Amos, 
 after procuring the pistol from Thornton, had casually met Gordon 
 and immediately shot him, without any provocation whatever, cer- 
 tainly Thornton would not have been guilty of murder as a principal 
 in the second degree, although he had been present on the occasion 
 of the homicide, if he did nothing then to aid or abet the commission 
 of the crime. 2 It follows from what we have said that the court should 
 have granted a new trial, upon the ground that there was no evidence 
 to support the verdict. 
 
 Judgment reversed. All the Justices concur, except Simmons, 
 C. J., absent. 
 
 ■Accord: Connaughty v. State, 1 Wis. 159, GO Am. Dec. 370 (1853); People 
 v. Aii Ping, 27 Cal. 489 (1865); Plummer v. Commonwealth, 1 Bush (Ky.) 76 
 (1866); Clem v. State, 33 Ind. 418 (1S70) ; State v. Cox, <;."» Mo. 29 (1S77); 
 v. Coney, S Q. B. Div. 534 (1882); White v. People, 139 111. 113. 28 N. 
 K. 1083, 32 Am. St. Rep. IDC (1891); State v. Wolf, 112 Iowa, 458, 84 N. W. 536 
 (1900). 
 
 Compare McCarty v. State, 26 Miss. 209 (1853); Leslie y. State, 42 Tex. 
 Or. R. 65, 57 S. W. 659 (1900). In Ramon v. State (Tex. Cr. App.) 68 S. W. 
 987 (1902), it whs hold that the fact that defendant, knowing that O. was 
 about to kin .]<'<'o;isivd. held the son ,,r the deceased from going t<> ins father's 
 assistance) would not make defendant a principal In the second degree to 
 tii«' homicide. 
 
 "The words 'or approving of have no place in legal phraseology to explain 
 
 the meaning of the words to 'aid' and 'abet.' The fact Itself is Incapable of 
 
 proof. Mental operations, not accompanied with any action or language, are 
 
 nd the reach of testimony." Napton, J., in State v. Cox, 65 Mo. 29 (1877).
 
 Sec. 2) PRINCIPAL IN TIIE SECOND DEGREE. 2G9 
 
 i 
 
 STATE v. POYNIER. 
 (Supreme Court of Louisiana, 18S4. 3G La. Ann. 572.) 
 
 Manning, J. Poynier, with four others, was prosecuted for larceny 
 of 32 bales of cotton, the property of the Texas & Pacific Railway, and, 
 upon conviction, was sentenced to four years' imprisonment at hard 
 labor. He alone is before us on this appeal. 
 
 By request of the prisoner's counsel, the judge charged that "per- 
 sons not sufficiently near to give assistance are not principals. That 
 they were sufficiently near must be proven by the state beyond a rea- 
 sonable doubt. If a man be at such distance from the place where the 
 offense was committed that he could not assist in it if required, he 
 cannot be deemed a principal." And then immediately added: "Where 
 a person keeps away from the place where the crime is committed for 
 the purpose of facilitating the commission of the offense, even if he 
 be not sufficiently near to give assistance if required, he is to be con- 
 sidered as constructively present." 
 
 _This_a.ddendunx-of- the judge was excepted to by the prisoner, and f 
 presents the question for our review. In his reasons for the charge, I! 
 inserted in the bill of exceptions, the judge says : "The accused was 
 a foreman of the Texas & Pacific Railway at their freight depot in 
 this city. I charged the jury that if the evidence established a com- 
 bination on the part of the accused and others to steal the 32 bales 
 of cotton, and that Poynier, with the view of assisting the actual per- 
 petrators of the larceny, kept out of the way, he was guilty as prin- 
 cipal." 
 
 The counsel for the prosecution lays stress on the circumstance 
 that this last enunciation was not excepted to. How could it be? It 
 was not a charge to the jury, but an amplification of the charge pre- 
 viously given, and not appearing until the bill was ready to be signed, 
 and appearing only in it. The jury never heard or read it. The charge 
 to them is the matter for our consideration. 
 
 The distinction between principals and accessories before the fact / 
 is in most cases a distinction without a difference, and often requires 
 nice and subtle verbal refinements to express it. In some of our 
 states it has been abolished by statute; in others, judicial decisions 
 have attenuated it until it is perceptible only by a close mental effort. 
 The fact is, it is not a creature of statutory law, but wholly of judi- 
 cial construction, the origin of which is so vague and indeterminate 
 that the text-writers have not found out where to place it. It is sup- 
 posed to have originated at a time when criminal lawyers puzzled 
 their wits and taxed their ingenuity to invent metaphysical shades 
 of distinction, such, for instance, as that between principals and ac- 
 cessories at the fact, which once existed, but is now exploded. The 
 distinction between principals and accessories before the fact is fast 
 following its kindred technical refinement.
 
 270 COMBINATIONS OF PERSONS IN CRIME. (Ch. T 
 
 The general rule of law is that what one does through another's 
 agency is to be regarded as done by himself. In the punishment, 
 neither the common nor statutory law makes any distinction between 
 a principal and an accessory before the fact, nor is there any differ- 
 ence in the structure of the indictment. In morals there are often- 
 times circumstances wherein we attach greater blame to the accessory 
 than to his principal, as where a husband commands his wife to do 
 for his benefit a criminal act which she would not do without his com- 
 mand. 1 Bishop, Crim. Law, § 673. 
 
 A man whose sole will procures the commission of a criminal act 
 is principal, without regard to the physical agencies he employs, and 
 whether he is present or absent when the act is done. Where there 
 is a principal — and there can be no crime without one — no other per- 
 son will be considered a principal with him, unless in a position to 
 render personal assistance of some kind. The test to determine 
 whether he is principal rather than accessory is whether he is so 
 situated as to make his personal help available — not actual physical 
 help necessarily, but help of any kind ; not help rendered in or by 
 actual presence, but constructive presence as well. Id. § 653. Thus, 
 if he watched near or at a distance to prevent his companions being 
 surprised, or stationed himself to give the alarm to favor their es- 
 cape, or was in such situation as to come to their assistance, so that 
 the knowledge of his watching or position or situation inspired or 
 was calculated to inspire his companions with additional confidence, 
 and enable them quicker or safer or more effectually to commit their 
 crime, then he is a principal. 1 Whart. Am. Cr. Law, § 116. 
 
 One need not be either an eyewitness of the criminal act or within 
 hearing of it, to make him a principal. If he had knowledge of it. 
 and watches so as to assist in any manner, it is enough. Doan v. 
 State, 26 Ind. 495. Or if he do any act in execution of the common 
 design, or to aid those who are immediately engaged to escape. Wix- 
 son v. People, 5 Parker, Cr. R. (N. Y.) 119. Each person consenting 
 to the commission of an offense, and doing any one act which is an in- 
 gredient in the crime, or immediately connected with or leading 
 to its commission, is a principal. U. S. v. Wilson, Baldw. 78, 102; 
 U. S. v. Libby, 1 Woodb. & M. 221. 
 
 Therefore, if a person, with knowledge that the commission of the 
 crime lias been determined on, gets away and keeps away from the 
 spot for the purpose of facilitating the commission of it, he is a prin- 
 cipal, although he is not present or near enough to give assistance 
 physically and manually to his companions. And this is but a para- 
 phrase of the judge's charge. Reg. v. Flatman, 12 L. Crown Cas. Re- 
 
 It was for the jury to find the fact whether the defendant had 
 formed a combination to steal the cotton, and whether he had kept 
 out of the way to assist his confederates. They found the fact, and
 
 the 
 ;ible 
 
 Sec. 2) PRINCIPAL IN THE SECOND DEGREE. 271 
 
 applied the law as the judge gave it to them, and a conviction thus 
 had is legal. 
 
 There is a bill to the admission of Poynier's confession which is 
 without merit. The confession was voluntary, and therefore admis- 
 sible. State v. Alphonse, 34 La. Ann. 9. 
 
 The third bill is to a question of the state's attorney in cross-ex- 
 amination. The defendant asked a witness : "Are you the person who 
 is charged with having knowingly received the stolen cotton spoken 
 of in this case?" And again: "Did you buy 32 bales of cotton, or any 
 cotton, from the accused, Poynier?" Upon cross-examination he was 
 asked: "How do you account for the tags which had been attached 
 to the cotton which was found in your pickery?" The objection was 
 that the cross-examination must be confined to the facts and circum- 
 stances which were the subject of the examination in chief. 
 
 The answer is that the question is sufficiently connected with the 
 matter that had been brought out before to justify its admission un- 
 der our ruling in State v. Stuart, 35 La. Ann. 1015. 
 
 Judgment affirmed. 
 
 Todd, J. (dissenting). The common law recognizes two kinds of // 
 principals to a crime — principals in the first and second degree. 
 
 A principal in the first degree is the actual perpetrator of 
 deed, either in person or through an innocent medium or irresponsi 
 agent. Wharton, Cr. Law (4th Ed.) § 112; 1 Hale, 233, 615; Bish- 
 op, Cr. Law (5th Ed.) §§ 648, 651; 1 Arch. Cr. Pr. & PI. (7th Ed.) 
 58. 
 
 Principals in the second degree are those who are present, aiding, 
 and abetting at the commission of the fact. 1 Hale, 438, 439 ; Foster, 
 349, 350; Wharton, Cr. Law (4th Ed.) 116; Bishop (5th Ed.) § 649. 
 
 This presence is either actual or constructive. Thus it is a con- 
 structive presence if a party watches for his companions, the actual 
 perpetrators, to prevent surprise or favor their escape, or give assist- 
 ance, and is near enough to afford it, if required. Wharton (4th Ed.) 
 §§ 116, 124; Hale, 438; 1 Arch. pp. 58, 59; Bishop, § 653. 
 
 If a person is present aiding and abetting in some act making^ 
 part of the offense, although absent when the crime is completed by 
 his confederates, he is a principal with respect to the whole of it. 
 Arch. Pr. & PI. pp. 61, 66; Reg. v. Jordan O'Sullivan, 7 C. & P. 432' 
 
 These leading authorities shed all necessary light on the question 
 as to who are to be held as principals in a crime, whether in the first 
 or second degree. The doctrine upheld by these authorities still 
 governs in this state, except that the distinction or difference between 
 principals in the first and second degree can scarce be said to be any 
 longer recognized. 
 
 In the instant case the trial judge, after charging the jury in ex- 
 act accord with the principles adverted to above, further charged, 
 substantially, that although a party may be absent from the place 
 where the crime is committed, and such a distance therefrom as not
 
 272 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 to be able to render any assistance if required, yet, if his absence is 
 for the purpose of facilitating the commission of the offense, he is 
 a principal, and is constructively present aiding and abetting. 
 
 The question recurs: Does the proposition conveyed in this charge 
 fall within, or is it covered by the doctrine established by, the au- 
 thorities cited, or is it justified and sanctioned by any known rule or 
 principle of law ? 
 
 After an exhaustive examination of all authorities on the subject, 
 and the minutest consideration, I am constrained to answer this ques- 
 tion in the negative. So far from being supported by authority or 
 precedent, I think it opposed to the controlling principles referred to, 
 and really inconsistent with the first part of the charge given to the 
 \ jury, and the law therein so clearly enunciated. 
 
 If it should prevail, it would effectually, in my opinion, destroy 
 the distinction so firmly established between principals and acces- 
 sories before the fact. 
 
 To constitute a party a principal in the crime in any degree, he must 
 be a co-operator therein at the time of its commission. 
 
 Thus it is laid down by Archbold that going towards or in the di- 
 rection of a place where a larceny is committed for the purpose of 
 assisting in carrying off the property, and assisting accordingly, but 
 at such a distance as not to be able to assist in the commission of the 
 fact, at the time of the felonious taking and carrying away, did not 
 make the party a principal in the larceny. Archbold, Cr. PI. & Pr. 
 p. GG. 
 
 And in the case presenting a strong analogy to the instant one, tthere 
 an employe in a house, in pursuance of an arrangement rnadc. with 
 a confederate, admitted this confederate into the house, where he re- 
 mained till the next day, when he stole the money from a cashbox in 
 the house, during the absence of the employe therefrom, it was held 
 that the latter was not a principal in the crime, but an accessory be- 
 fore the fact. Keg. v. Jackwill and Perkins, 1 Car. & M. 215. 
 
 Reference is made in the brief of the Attorney General to two cases 
 as supporting the principle announced in the charge we are consider- 
 ing. These are Reg. v. Flatman, 42 L. T. (Eng.) 159, and Scales v. 
 State, 7 Tex. A pp. 361. 
 
 The first of those cases turned on the effect to be ascribed to the 
 delivery by the wife of the husband's goods to an adulterer and did 
 not involve the general principles governing the point or question un- 
 der review. 
 
 And the other case was decided under a special statute of the 
 state of Ti . which changed materially the common law on the sub- 
 
 ct of principals and accessories. See Peck, Dig. art. ISO!) et scq; 
 Pen, Code, art. 21 i et seq. 
 
 I am thus brought to the conclusion that there was an error in 
 complained of, and of gravity sufficient to vitiate the ver- 
 dict of the jury, and the sentence based thereon. 
 
 I therefore dissent from the opinion of the majority.
 
 Sec. 2) miNCiPAL in the second degree. 273 
 
 MERCERSMITH v. STATE. 
 
 (Court of Appeals of Texas, 1S80. 8 Tex. App. 211.) 
 
 White, P. J. 1 In our opinion this cause must be reversed, be- 
 cause the court failed to submit the law applicable to the vital issues 
 necessarily raised by the evidence elicited on the trial. Substan- 
 tially stated, the facts in brief are that one George Purtell and the 
 defendant were found by deceased inside his house sometime about 
 11 o'clock at night. Deceased and his wife and stepdaughter were 
 returning from prayer meeting, when, near his house, they heard 
 the cries and screams of the three children, who had been left at home 
 during their absence. Deceased hurried on to see what the matter 
 was, when, stepping inside his door, he was immediately fired upon 
 by Purtell. After the second shot, deceased fled, and Purtell pur- 
 sued him into the yard and fired a third shot, or fourth, according 
 to some of the witnesses, which penetrated about the knee joint, 
 severing the femoral artery, and from which wound he died some 
 14 days afterwards. 
 
 At the time of the shooting this appellant was lying upon a pallet 
 upon which the three children slept, and had the eldest, a young girl 
 between 10 and 12 years of age, in his arms, with her clothes up, 
 and, as she says, was choking her. She and the other children were 
 crying and hallooing. The door of the house had been broken down 
 and torn from its hinges by Purtell and defendant when they effected 
 their entrance into the house, and immediately after the entry defend- 
 ant laid down upon the pallet with the children, whilst Purtell remain- 
 ed standing near the doorway. But a very few seconds could have 
 elapsed from their entry until the appearance of Henderson, the de- 
 ceased, and the shooting as above detailed. There was evidence tend- 
 ing to show that these parties had been at the house before to see 
 the girls (the one defendant had in his arms when discovered, and 
 the stepdaughter who had gone to prayer meeting) ; the intimation 
 being clear that their object on these previous visits was carnal in- 
 tercourse. Whether such carnal intercourse had taken place previous- 
 ly is not made manifest. Other evidence tended to show that this 
 defendant was quite drunk; but after the shooting he got up and 
 joined Purtell, when they both mounted their horses and went off to- 
 gether. 
 
 In a charge characterized by great precision for its declaration 
 of the principles of law relative to murder of the first and second 
 degrees, the court further instructed the jury fully with regard to 
 the general principles of law as enunciated in the Code with regard 
 to joint or principal offenders engaged in a common purpose and 
 actuated by a common design in the accomplishment of an unlaw- 
 
 > Tho opinion only is printed. 
 Mik.Cr.L.— 18
 
 vi - ttv f^~v/r b ^wrn \ cv* 'f**o tw >^*T) V 
 
 ? 
 
 
 *-fcf/ 
 
 
 "vi p/~7 "if jpi tw r/ 
 
 274 
 
 COMBINATIONS OF PERSONS IN CRIME. 
 
 (Ch. 7 
 
 
 ful act, and their reciprocal liability for the acts of each other. Pen. 
 Code, arts, 74-76, 78. But the charge failed to draw the distinction 
 which the law makes between cases of combination and conspiracy 
 to do an unlawful act and the liability of one and all for the acts and 
 deeds of all when the common purpose might be to do an act not in 
 itself unlawful, and in the execution of which one of the parties en- 
 gaged committed a felony. 
 
 In the case at bar there would be a marked distinction as to the 
 liability of the parties when tested by what was the common pur- 
 pose which united them together at the time Purtell alone engaged 
 in the shooting which resulted in the homicide. 
 
 If the common purpose was to commit an unlawful act — as, for in- 
 stance, burglary — which would be evidenced by the fact that they 
 broke down the door and forcibly entered the house at night, or that 
 they broke down the door and forcibly entered the house to commit 
 rape (Pen. Code, art. 704), then, manifestly, the original purpose 
 ,and common design being to commit a felony, any act done by ei- 
 ther one of the parties whilst engaged in the unlawful act would be 
 imputed and attach its criminality to the other, and make each liable 
 jointly for whatever either may have done in the general purview 
 of the common design during the execution of the original unlawful 
 enterprise. 2 But if the common undertaking was in itself not un- 
 lawful — as, for instance, if the parties entered the house, but in the 
 entry did not intend to commit burglary or any other felony or un- 
 lawful act, but their object was alone to have carnal intercourse 
 with the girls, with whom they had before such intercourse, and 
 whilst the defendant was in the act of accomplishing this object his 
 companion, Purtell, without his knowledge or consent, shot and killed 
 Henderson — in such event, even though the shooting might have 
 been done to enable both to evade discovery and effect their escape 
 from the house, the defendant would not be liable for the homicide. 
 
 It is the lawfulness or criminality of the purpose and common 
 design which gives scope and character to acts committed in con- 
 nection with its perpetration. To constitute principals in an offense, 
 the purpose must be unlawful. "For if the original intention was 
 lawful and prosecuted by lawful means, and opposition is made by 
 others, and one of the opposing party is killed in the struggle, in 
 that case the person actually killing may be guilty of murder or man- 
 slaughter, as circumstances may vary the case, but the other persons 
 who are present, and who do not actually aid and abet, are not guil- 
 ty as principals; for they assembled for another purpose, which was 
 
 1 Acconl: IvVx v . l'liinminr, KHvmr. 100 (1701); II. S. v. Ross, 1 Gall. 
 (U. s.i 624, i -i Cas. No. 16,106 (1818); State v. Maloy, 44 lowa, 104 (ISTC.) ; 
 Weston v. Commonwealth, in Pa. 261, 2 am. 101 (1886); Gibson v. State, 89 
 Alu. 121. 8 South. 08, L8 \m. St. Rep. 06 (1880); English v. State, 84 Tex. 
 Cr. R, 190, 30 S. \v. 288 (1806); State v. Gannon, 40 S. O. 550, 27 S. E. 526 
 (1897).
 
 Sec. 2) PRINCIPAL IN THE SECOND DEGREE. 275 
 
 lawful, and consequently the guilt of the person actually killing can- 
 not by any fiction of law be carried against them beyond their original 
 intention." Fost. 354; 2 Hawk. P. C. c. 29, § 9; 2 Archb. Cr. Pr. 
 & PI. (6th Ed.) 251-257, and note. 
 
 But Mr. Wharton says: 'ltshioiild__be__observed, however, that, 
 while the parties are respqnsiblcTfor collateral acts growing out of 
 the general design, they are not for independent acts growing out 
 of- the particular malice of individuals. Thus, if one of the party of 
 his own head turn aside to commit a felony foreign to the original 
 design, his companions do not participate in his guilt." Whart. on 
 Horn. § 202. 3 Yet, "where two persons go out for the common 
 purpose of robbing a third person, and one of them, in pursuit of such 
 common purpose, kill such third person under such circumstances 
 as to make it murder in him who does the act, then it is murder in 
 the other." Id. § 338; Ruloff v. People, 45 N. Y. 213; Green v. 
 State, 13 Mo. 382; 1 Bishop's Cr. Law (4th Ed.) § 435; Hanna 
 v. People, 86 111. 243. 
 
 Nor is it necessary that the common guilty purpose of resisting 
 to the death any person who should endeavor to apprehend them 
 must have been formed when the parties went out with the common 
 design of committing the unlawful act, to render all principals in a 
 murder by one of them perpetrated whilst making such resistance. 
 Ruloff v. People, 45 N. Y. 213; State v. Nash, 7 Iowa, 350; Moody 
 v. State, 6 Cold. (Tenn.) 299. 
 
 In the case of People v. Knapp, 26 Mich. 112, it was held "that 
 where parties combine to commit an offense, and a homicide is com- 
 mitted by part of them in an attempt to escape, one who did not 
 consent and was not privy in fact to the homicide cannot be held 
 responsible by reason of the original combination. There can be 
 no responsibility against one who is not himself engaged in the acts 
 of his associates, unless it is within the scope of the combination to 
 which he was a party, and thus authorized as his joint act." 
 
 It is unnecessary that we should discuss the other questions in 
 the case. 
 
 The judgment of the court below will be reversed, in order that 
 upon another trial the court may submit the principles of law ap- 
 plicable to the issues as we have presented them in the foregoing 
 opinion. 
 
 Reversed and remanded. 
 
 3 Accord: Scott v. State, 46 Tex. Cr. R. 53G, 81 S. W. 294, 108 Am. St. Rep. 
 1032 (1904).
 
 -7G COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 STATE v. ALLEN. 
 
 (Supreme Court of Errors of Connecticut, 1879. 47 Conn. 121.) 
 
 Indictment for murder in the Superior Court for Hartford county. 
 The prisoner was indicted with Harry Hamlin and John H. Davis 
 for the murder of Welles Shipman, a watchman at the state prison; 
 the murder having been committed in an attempt of the defendant 
 and Hamlin, who were convicts, to escape from the prison. The 
 jury found a verdict of murder in the first degree. The defendant 
 thereupon moved for a new trial for error in the rulings and charge 
 of the court, and also filed a motion in error. 1 
 
 Beardseey, J. The motion for a new trial shows that upon 
 the trial it was claimed by the state that the accused and one Henry 
 Hamlin, both of whom were lawfully confined in the state prison, 
 conspired to escape from such confinement, and to use all means 
 which might become necessary to effect such escape, even to the 
 taking of the life of any one who might oppose them, should it be- 
 come necessary to do so in order to overcome such opposition; that 
 in pursuance of such combination they provided themselves with 
 two loaded revolver pistols, one a seven-shooter, and the other a four- 
 shooter, and with handcuffs and a gag, and on the evening of Septem- 
 ber 1, 1877, escaped from their cells and secreted themselves in the 
 hall of the prison, where they were discovered by Welles Shipman, 
 an armed night watchman of the prison, and that thereupon they both 
 fired at Shipman, who was wounded by one of the shots, and died 
 from such wound on the next day ; and that after Shipman was 
 wounded he ran towards the alarm bell, pursued by the accused and 
 Hamlin, who overtook him, when he sank insensible upon the cor- 
 ridor, and was then handcuffed and gagged by them ; that Allen 
 then went to his cell about 150 feet distant, leaving Hamlin with 
 Shipman, where he was discovered and fired at by the guard of the 
 prison; and that thereupon Hamlin went to the cell of Allen, and 
 that both then broke into the attic and were taken the next morning. 
 The state claimed that Shipman was shot before he was handcuffed. 
 
 It was claimed by the defense that, if there was any conspiracy 
 between the accused and Hamlin, it was merely to bribe an officer 
 of the prison to permit them to escape, and that whatever was done 
 after Shipman discovered the accused and Hamlin was not in pur- 
 suance of any plan or conspiracy, and that immediately after Ship- 
 man was handcuffed and qagt^ed Allen abandoned the enterprise 
 and went to his cell, and that Shipman was afterwards shot by Ham- 
 lin alone. 
 
 The court charged the jury as follows: "If the jury shall find 
 that Hamlin and Allen, al some time previous to the homicide, made 
 
 up their minds in concert to break the slate prison and escape thcrc- 
 i The «tnt£iueut is abridged, and part of the opinion Is' omitted.
 
 fj ')%jjj^ 
 
 SeC. 2) PRINCIPAL IN THE SECOND DEGREE. 277 
 
 from at all hazard, and knowing that the enterprise would be a dan- 
 gerous one and expose them to be killed by the armed night watch- 
 man of the prison, should they be discovered in making the attempt, 
 willfully, deliberately, and premeditatedly determined to arm them- 
 selves with deadly weapons, and kill whatever watchman should op- 
 pose them in their attempt, and if the jury should further find that 
 in pursuance of such design they armed themselves with loaded re- 
 volvers to carry their original purpose into execution, and while en- 
 gaged in efforts to escape from the prison were discovered by the 
 watchman, Shipman, the deceased, and in the scuffle which ensued 
 he was willfully killed by Hamlin or Allen while they were acting 
 in concert and in pursuance of their original purpose so to do in just 
 such an emergency as they now found themselves in, then Hamlin 
 and Allen are both guilty of murder in the first degree. And in the 
 opinion of the court Allen would be guilty of murder in the first degree, 
 if, in the state of things just described, he in fact abandoned, just 
 before the fatal shot was fired by Hamlin, all further attempt to 
 escape from the prison, and the infliction of further violence upon 
 the person of Shipman, without informing Hamlin by word or deed 
 that he had so done, and Hamlin, ignorant of the fact, shortly after 
 fired the fatal shot in pursuance of and in accordance with the pur- 
 pose of the parties down to the time of the abandonment." 
 
 We do not think that the objection made by the defense to this 
 part of the charge is well founded. Under such circumstances, Al- 
 len's so-called abandonment would be but an operation of the mind — 
 a secret change of purpose. Doing nothing by word or deed to in- 
 form his co-conspirator of such change of purpose, the reasonable 
 inference would be that he did not intend to inform him of it, and 
 thus he would be intentionally encouraging and stimulating him to 
 the commission of the homicide by his supposed co-operation with 
 him. Such intent not to inform Hamlin of his change of purpose 
 would, under the circumstances, be decisive of his guilt. \ 
 
 But the charge proceeds: "In other words, if during the fatal "jS ,> 
 encounter with deadly weapons, in the state of things just described, jl 
 Allen suddenly abandoned Hamlin, abandoned the enterprise, and 
 went to his cell without saying a word to Hamlin to the effect that he 
 had abandoned the enterprise, and Hamlin, supposing that he was 
 still acting with him and that he had gone to his cell for an instru- 
 ment to carry on the encounter, fired the fatal shot, his abandonment 
 under such circumstances would be of no importance. A man can-" 
 not abandon another under such circumstances and escape the con- 
 sequences of the aid he has rendered up to the time of the abandon- 
 ment." 
 
 A majority of the court think that the jury may have been misled 
 by this part of the charge, and that therefore, especially in view 
 of the grave issues involved in this case, a new trial should be granted. 
 
 If Allen did in fact before the homicide withdraw from the con- 

 
 -78 COMBINATIONS OF PERSONS IN CRIME. (Cll. 7 
 
 piracy, abandon the attempt to escape, and with the knowledge of 
 Hamlin leave and go to his cell, Hamlin's misconstruction of his 
 purpose in leaving did not necessarily make his conduct of no im- 
 portance. 
 
 Until the fatal shot there was the "locus penitentise." To avail 
 himself of it Allen must indeed have informed Hamlin of his change 
 of purpose, but such information might be by words or acts ; and 
 if, with the intention of notifying Hamlin of his withdrawal from the 
 conspiracy, he did acts which should have been effectual for that pur- 
 pose, but which did not produce upon the mind of Hamlin the effect 
 which he intended and which they naturally should have produced, 
 such acts were proper for the jury to consider in determining the 
 relation of Allen to the crime which was afterwards committed. 
 
 Allen's act of leaving and going to his cell, if he did so, had some 
 significance in connection with the question of intention and notice, 
 and was therefore proper for the consideration of the jury. How 
 much weight was to be given to it would depend upon circumstances, 
 such as the situation of the parties and the opportunity for verbal 
 or other notice. 
 
 The same observations are perhaps applicable to the charge of the 
 court in answer to the sixth request for instructions. While it is 
 clear that the request as made should not have been complied with, 
 the charge that was given may be open to the implication that some 
 notice of Allen's abandonment of the conspiracy must have been 
 given by him to Hamlin beyond that afforded by his act of leaving. 
 
 The answers of the court to the other requests for instructions 
 seem to us, in view of the claims of the counsel and the admitted 
 facts in the case, to be correct and sufficiently explicit. 
 
 A new trial is advised. 
 
 Granger, Sanford, and Hovey, J J., concurred. Loomis, J., dis- 
 sented. 
 
 SECTION 3.— ACCESSORY BEFORE THE FACT. 
 
 Accessories, again, are of two kinds — accessories before the fact 
 committed, and accessories after. 
 
 An accessory before is he that, bring absent at the time of the 
 felony committed, doth yet procure, counsel, command or abet an- 
 other to commit a felony, and it is an offense greater than the acces- 
 sory after; and therefore in many cases clergy is taken way from 
 accessories before, which yet is not taken away from accessories after, 
 as in petit treason, minder, robbery, and willful burning by St. 4 
 & 5 P. M. c. 4. Hale, P. C. c. 55.
 
 Sec. 3) ACCESSORY BEFORE THE FACT. 27!) 
 
 This kind of accessory after the fact is where a person, knowing 
 the felony to be committed by another, receives, relieves, comforts, 
 or assists the felon. This, as hath been said, holds place only in 
 felonies, and in those felonies where, by the law, judgment of death 
 ought regularly to ensue, and therefore there is no accessory in petit 
 larceny, homicide per infortunium, or homicide se defendendo. 15 
 Edw. Ill, Coron. 116. Hale, P. C. c. 56. 
 
 REX v. KELLY. 
 
 (Coxirt for Crown Cases Reserved, 1820. Russ. & R., 421.) 
 
 The prisoner was tried and convicted before Mr. Justice Bayley 
 at the Summer Assizes for Carlisle, in the year 1820, of stealing two 
 horses. 
 
 It appeared in evidence that the prisoner and one Whinroe went to 
 steal the horses. Whinroe left the prisoner when they got within half 
 a mile of the place where the horses were. Whinroe stole the horses, 
 and brought them to the place where the prisoner was waiting for 
 him, and then the prisoner and Whinroe rode away with them. 
 
 The learned judge thought the owner's possession was not destroy- 
 ed by Whinroe's theft, and that the prisoner's joining in riding awav 
 with the horses might be considered as a new larceny; but, upon ad- 
 verting to the case of Rex v. King, before the judges in Easter Term. 
 1817, he thought his first opinion wrong, and reserved the case for 
 the consideration of the judges. 
 
 Tn Michaelmas Term, 1820, the judges met and considered this 
 case. They held the conviction wrong, being of opinion that the pris- 
 oner was an accessory only, and not a principal, because he was not 
 present at the original taking. 
 
 (W 
 
 Parke, J., in REX v. COOPER, 5 Car. & P., 535 (1833) : With 
 respect to an accessory before the fact, it is not necessary that there 
 should be any direct communication between the accessory and the 
 principal. It is enough if the accessory direct an intermediate agent 
 to procure another to commit the felony; and it will be sufficient,, 
 even though the accessory does not name the person to be procured, 
 but merely directs the agent to employ some person.
 
 280 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 REGINA v. TRACY. 
 (Queen's Bench, 1703. 6 Mod. 30.) 
 
 Tracy, a justice of the peace for Middlesex, was indicted, for that 
 he, together with Taylor and Jeoffries, by pretense of a certain war- 
 rant in writing, supposed to be signed and sealed by Sir Simon Lovell, 
 recorder of London, did arrest J. Muriel, and brought him before 
 J. Chamberlain, a justice of the peace for Middlesex, although the 
 warrant was not directed to any of them, and although it was forged 
 and counterfeited to Tracy's knowledge; and that Tracy, when Mu- 
 riel was before the justice of the peace, persuaded him to refuse to 
 bail him, though the fault being a misdemeanor was in its nature 
 bailable; and that when J. Muriel was committed by the justice, Tracy 
 and the other two, at the persuasions and instance of Tracy, extorted, 
 divers sums of money from him. 
 
 The jury acquitted the defendant of the forgery, and of knowing 
 that the warrant was forged, and found him guilty of all of the rest. 
 
 Wells and Parker now moved in arrest of judgment. 
 
 Fifthly. 1 As to some part of the charge, they charge him as ac- 
 cessory, when, it being trespass, they are all principals, and it ought 
 to be charged as such. 
 
 Holt, Chief Justice. As to the fifth objection, that he is not jn 
 some things charged as a principal. It is to be known, that a fact 
 which would make one accessory in felony, in treason, and in trespass, 
 I makes him a principal ; and sure one may lay the matter either way, 
 viz., making him principal or laying it special, as it will appear upon 
 evidence. In treason all are principals; and if upon the statute of 
 25 Edw. Ill, c. 2, one conspires the death of the queen, and is com- 
 mitted to prison for the same, and one procures him to escape, or 
 harbors him after such time as he knows him charged with treason, 
 or to have committed treason, you may indict him upon the special 
 matter, that A committed treason, that B knew of it and received him ; 
 and yet this is not one of the treasons mentioned by that statute, but 
 it is so by necessary consequence of law. As if a thing be made a 
 felony, all accessories before and after are felons in consequence; and 
 if mi offense which is felony be made treason, they that would have 
 been accessories before shall now be principals. 2 
 
 i Only so uracil <>f tins case as relates to accessories is printed. 
 
 •Accord: Misdemeanor, Commonwealth v. Gllh'spio, 7 Snx'. & R. (Pa.) 469, 
 lo Am. Kit. ■I7."> (1822); Reg. v. Moliuid. '1 Moo. 'J7<; (1812); Lowenstela v. 
 People M Barb. (N. v.) 200 (1868); State v. Dewer, 65 N. O. 572 (1871); 
 Wagner v. State, 48 Ni b. i. <;i x. w. x.~ (is-.ii) : miss v. U. S., 10. r > i«Vd. 508. 44 
 0. 0. a. 824 (1900); treason, Throgmorton's Case, 1 Dyer, 98b (1553). But 
 see u. S. v. Burr, 4 Crancb (U. S.) 469 (1807).
 
 Sec. 3) ACCESSORY BEFOKE THE FACT. 2S I 
 
 SAUNDERS' CASE. 
 
 (Warwick Assizes, 1571. 2 Plow. 473.) 
 
 Reporter's N ote. — It seems to me reasonable that he who advises 
 or commands an unlawful thing to be done shall be adjudged ac- 
 cessary to all that follows from that same thing, but not from 
 any other distinct thing. As if I command a man to rob such a one, 
 and he attempts to rob him, and the other defends himself, and a 
 combat ensues between them, and the person attempted to be robbed 
 is killed, I shall be accessary to this murder, because when he at- 
 tempted to rob him, he pursued my command, and then when he pur- 
 sued my command, and in the execution thereof another thing hap- 
 pened, I ought in reason to be deemed a party therein, because my 
 command was the cause of it. So if I command one to beat another, 
 and he beats him so that he dies thereof, I shall be accessary to this 
 murder, for it is a consequence of my command, which was the origi- 
 nal foundation thereof, and which naturally tended to endanger the 
 life of the other. So if I command one to burn the house of J. S. 
 feloniously in the night, and he does so, and the fire thereof burns 
 another house, I shall be accessary to the burning of the other house, 
 so that altho' I am afterwards pardoned for being accessary to the 
 burning of the house of J. S. yet shall I be hanged for the burning of 
 the other house, for inasmuch as the burning of the second house fol- 
 lowed from my command, and I am clearly accessary to the burning 
 of the first house, I ought also in reason to be adjudged accessary to *a, 
 all that followed from the burning of the first house. But if I com- Ar 
 manded him to burn the house of such a one, whom he well knows, 
 and he burns the house of another, there I shall not be accessary to 
 this, because it is another distinct thing to which I gave no assent nor 
 command, but wholly different from my command. As if I command 
 one to steal a horse, and he steals an ox, or if I command him to steal 
 a white horse and he steals a yellow horse, this differs directly from my 
 command, and my consent cannot be carried over to it, for there is not 
 the least connection or affinity between this act and my command. 
 And so if I command a person to rob such a goldsmith of his plate 
 in such a place as he is going to Sturbridgefair, and he breaks open 
 his house in Cheapside, and he steals his plate from thence, I shall 
 not be accessary to this burglary, because it is a felony of another 
 kind from that which I commanded. But if I command one to kill 
 another by poison, and he kills him with a sword, or if I command one 
 to kill another in the fields and he kills him in the city or church, or 
 I command him to kill him such a day, and he kills him another 
 day, there I shall be accessary to the murder, because the death is the 
 principal matter, which has followed from my command, and the 
 place, instrument, time, and the like, are but the manner and form 
 how the death of the party shall be effected, and not the substance of 
 
 XX
 
 282 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 the matter, and a variance in the formal part of the execution of the 
 command shall not discharge a man from being accessary. But yet 
 in some cases the time may be material ; for if I command one to 
 kill J. S. and before the fact done I go to him and tell him that I have 
 repented, and expressly charge him not to kill J. S. and he afterwards 
 kill him, there I shall not be accessary to this murder, because I have 
 countermanded my first command, which in all reason shall discharge 
 me. for the malicious mind of the accessary ought to continue to do 
 ill until the time of the act done, or else he shall not be charged ; but 
 if he had killed J. S. before the time of my discharge or countermand 
 given, I should have been accessary to the death, notwithstanding my 
 urivate repentance. 
 
 
 (A 
 
 BIBITHE'S CASE. 
 
 (King's Bench, 1596. 4 Coke, 43.) 
 
 John Goff, brother and heir of R. Goff, brought an appeal of mur- 
 der of the said R. G., against Bibithe as principal, and against Hoell 
 David as accessory before, and against David ap. Thomas as acces- 
 sory after; the principal pleaded not guilty, and by nisi prius in 
 the county of Monmouth he was found guilty of manslaughter, and 
 not guilty of murder, and had his clergy: and upon this matter first 
 it was resolved by Popham, C. J., et per tot' cur', in B. R., that Hoell 
 I) David was discharged, because he could not be accessory before~fhe 
 fact in case of manslaughter, for manslaughter ought to ensue upon 
 a sudden debate or affray, for if it is premeditated it is murder. 1 2. 
 It was resolved, that although the principal was convicted by verdict, 
 yet forasmuch as he had his clergy before judgment, so that it does 
 not appear judicially, sc. by judgment of the law that he was a princi- 
 pal, therefore, and for the causes alleged in Syer's Case, it was award- 
 ed, that both the accessories, as well before as after, should be dis- 
 charged. The same law, if the principal upon arraignment confesses 
 the felony, and before judgment obtains a pardon, or has his clergv 
 allowed, the accessory thereby is discharged, vide 2 E. 3, 27, 22 E. '■'<. 
 Corone 2G1, 7 H. 4, 16. 10 H. 4, 5. 3 H.*7, 1. B. & 3 H. 7. Corone 53. 
 And upon divers disagreeing opinions, you will understand the law, 
 as here it was adjudged upon consideration of all the books. 2 
 
 i Accord: Bowman v. Stare (Tex. Cr. App.) 20 S. W. 558 (1802). Compare 
 
 v. Qaylor, l Dears. & B. 288 (1867). 
 i The distinction between principals .-mil accessories before the fact has been 
 abolished by statute In some stales. Under those statutes it is generally 
 
 held that an accessor; mav he indicted as a principal. Bee Campbell v. Com- 
 monwealth, si Pa. L87 (1877); Baxter v. People, 2 Oilman (ill.) 578 (1845); 
 People v. MavhlHou, 5 Cal. 184 (1805); State v. Berber, 121 Iowa, 581, 96 N. 
 w. L094 (1908).
 
 / 
 
 SeC. 4) ACCESSORY AFTER THE FACT. 283 
 
 SECTION 4.— ACCESSORY AFTER THE FACT. 
 
 &n^ AelUJ'^/' 
 
 ROBERT'S CASE. 
 
 (Queen's Bench, 1569. 3 Co. Inst. 138.) 
 
 Catlin and Browne, Justices of Assize in the county of Suf- 
 folk, put this case to all the judges. A man committed felony 
 in the county of Suffolk, for which he was committed to the gaol, 
 and R., an attorney, advised the friends of the felon to persuade the 
 witnesses not to appear to give evidence against him, which was 
 done accordingly; and it was resolved that neither the friends nor 
 the attorney were accessories to the felony, but that it was a great 
 contempt and misprision, for which they might be fined and im- 
 prisoned. 1 
 
 STATE v. DAVIS. 
 
 (Supreme Court of Rhode Island, 1883. 14 R. I. 281.) 
 
 Exceptions, to the court of common pleas. Providence. 
 
 Durfee, C. J. This is an indictment for the violation of Pub. St. 
 R. I. 1882, c. 247, § 3, which reads as follows, to wit: "Every per- 
 son not standing in the relation of husband or wife, parent or grand- 
 parent, child or grandchild, brother or sister, by consanguinity or 
 affinity to another who shall have committed any offense or been ac- 
 cessory before the fact to the commission of any offense, who shall be 
 convicted of knowingly harboring or relieving such other person, with 
 intent that he shall escape or avoid detection, arrest, trial, or pun- 
 ishment, shall be imprisoned not exceeding five years or be fined not 
 exceeding one thousand dollars." In the indictment, found in the 
 court of common pleas, the offense was charged in manner following, 
 to wit: That at Newport, on the 15th day of March, 1883, the de- 
 fendants "did then and there knowingly harbor and relieve another, 
 to wit, one George H. Rounds, with the intent that he the said Rounds 
 should then and there avoid detection, arrest, trial, and punish- 
 ment, he, the said George H. Rounds, having then and there committed 
 an offense, to wit, the offense of entering a dwelling house in the day- 
 time, with intent to commit larceny therein; the said Thomas T. 
 Davis, and the said George T. Davis and the said Patrick White not 
 then and there standing in the relation of husband or wife, parent or 
 grandparent, child or grandchild, brother or sister, by consanguinity 
 
 1 Compounding a crime does not make the one compounding an accessory 
 after the fact. Chenault v. State, 46 Tex. Cr. R. 351, 81 S. W. 971 (1904), 
 overruling Gatlin v. State, 40 Tex. Cr. R. 116, 49 S. W. 87 (1S99). 
 
 ***** ^4\«\*cU bk^ ) iu^r^ rfU Gt* cfyL* wk «-
 
 2S4 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 or affinity to the said George H. Rounds." The defendants moved 
 the court below to quash the indictment for insufficiency, and the court 
 overruled the motion. The defendant excepted, and now, after ver- 
 dict of guilty against George T. Davis, he brings the cause to this 
 court for revision. 
 
 The defendant contends that the indictment is defective, in that it 
 does not allege that the defendants harbored and relieved Rounds, 
 knowing that he had committed the crime which he is alleged to have 
 committed; such knowledge being a necessary ingredient of the of- 
 fense under the statute. If the knowledge be a necessary ingredient, 
 we think the knowledge should have been alleged with certainty, and 
 that the indictment is bad for want of the allegation. 
 
 The Attorney General contends that the knowledge is not necessary, 
 because if it be necessary, a person may harbor or relieve another with 
 impunity, so long as he is ignorant of the particular offense which the 
 other has committed, though he knows perfectly well that he has 
 committed an offense and is fleeing from arrest, and though his pur- 
 pose in harboring or relieving him is to aid his escape. If the knowl- 
 edge be necessary, argues the Attorney General, he may safely har- 
 bor and hide a convict fleeing from prison in his prison garb, with 
 the officers of the law in hot pursuit, if only he be ignorant of the 
 particular offense which the fugitive has committed. The argument 
 against the construction contended for by the defendant is certainly 
 very cogent. But, on the other hand, if the statute is not to be so con- 
 strued, the word "knowingly" in the statute is superfluous, having no 
 meaning which is not necessarily implied without it. Moreover, if 
 the statute is not to be so construed, a person who harbors another, 
 knowing that he has committed some petty misdemeanor, and sim- 
 ply intending to help him escape arrest for it, may be convicted under 
 an indictment in which the principal offense alleged is murder or some 
 other heinous crime, knowing of which he would have recoiled from 
 harboring the criminal. 
 
 These are views which strike the mind on simply reading the stat- 
 ute, without reference to its history or antecedents. We think, how- 
 ever, that the statute cannot be fairly construed without reverting to the 
 common-law offense which was superseded by it, and tracing the 
 statute to its present form. Evidently the statutory offense was in- 
 tended to take the place of the common-law offense of being an ac- 
 cessory after the fact. At common law an accessory after the fact 
 is one who, knowing a felony has been committed by another, re- 
 ceives, relieve . comforts, of insists the felon. "To constitute an ac- 
 cessory after the fact," it is said, "three things arc requisite: The 
 felony must he completed; he must know that the felon is guilty ; 
 and he must receive, relieve, comfort, or assist him." 1 Archbold, 
 ©rim. Prac. & Plead. (8th Ed.) 17, note 2. These being requisites 
 of the offense, it was of course, necessary to allege them in the indict- 
 ment; and so are the forms or precedents. Id. 75, 76. By the old
 
 Sec. 4) ACCESSORY AFTER THE FACT. 285 
 
 common law the principal and the accessory were liable to the same 
 punishment, and no man could be tried as accessory after the fact 
 till after the principal felon was convicted. We do not find any stat- 
 ute of the state changing this common law until A. D. 1798. Sec- 
 tion 20 of "an act to reform the penal laws," contained in the Digest 
 of 1798 (Pub. Laws, p. 591), provides "that every person who shall 
 knowingly receive, harbor, conceal, maintain, assist, or relieve any 
 person or persons who have committed any of the crimes aforesaid, 
 or hereafter mentioned, although the principal offender cannot be 
 taken so as to be prosecuted, is and shall be considered an accessory 
 after the fact, and shall be fined not exceeding five hundred dollars, 
 and be imprisoned not exceeding two years." The section seems to 
 have been intended to change the common law in three particulars, 
 namely: First, to make it extend to the harboring of others besides 
 felons; second, to mitigate or limit the punishment; and, third, to 
 make the accessory liable to trial and punishment, "although the 
 principal offender cannot be taken so as to be prosecuted." We see 
 no reason to think that any other change was contemplated. The of- 
 fender is denominated an "accessory after the fact." The offense, 
 therefore, subject to the alterations effected by the statute, ought to 
 be deemed to have the character of the common-law offense. If so, 
 then knowledge on the part of the accessory, not only that the princi- 
 pal offense had been committed, but also that the person harbored 
 had committed it, was a necessary ingredient in the accessory of- 
 fense. We think there can be no doubt that the word "knowingly," 
 as used in the section, was intended to have that meaning. The sec- 
 tion was re-enacted without change in the Digest of 1822. In the 
 Digest of 1844 the section was altered, and it appeared there, as it 
 has appeared in all later revisions, in its present form. The section in 
 its present form increases the punishment, but in another respect it 
 mitigates the severity of the law. Previously any person, except a 
 wife, however closely related to the criminal, exposed himself to 
 punishment as an accessory after the fact by knowingly harboring 
 him. The section in its present form exempts from its operation the 
 husband or wife of the principal offender and certain others nearly 
 related to him. It also expresses, what was probably before implied, 
 that the guilt is incurred only when there is an intent to shield the 
 principal offender from the law. These are the only alterations 
 worthy of note which are apparent. Now the question is whether, by 
 reason of these alterations, the word "knowingly" has acquired a 
 different meaning from what it previously had. It seems to us that 
 we must assume that the old word has the old meaning until it is 
 clearly apparent that it was meant to have another. We do not find 
 any sufficient indication that a different meaning was intended. The 
 Legislature has been very explicit in the changes above noted, and 
 we cannot suppose, if so essential a change in the character of the 
 offense as that which the Attorney General contends for had been in-
 
 2S6 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 tended, that the Legislature would have left it so completely to in- 
 ference or conjecture. We think, therefore, that the indictment is 
 bad, in that it does not allege with the certainty required by the rules 
 of criminal pleading the offense which, as we construe the statute, 
 was intended to be punished by it. 
 
 Exceptions sustained, and indictment quashed. 1 
 
 REGINA v. BUTTERFIELD. 
 
 (Yorkshire Assizes, 1843. 1 Cox, C. C. 39.) 
 
 The prisoner was indicted as an accessory after the fact. The in- 
 dictment stated that at a general sessions of Oyer and Terminer, 
 etc., holden, etc., on the 12th July, in the seventh year, etc., before, 
 etc., it was presented that Thomas Butterfield, then late of, etc., and 
 Patrick Burke, then late of, etc. (it then sets out the former indict- 
 ment against Burke and Butterfield, for a robbery of a £100 note), 
 upon which said indictment the said T. Butterfield was, at the gen- 
 eral sessions, etc., aforesaid, found not guilty, etc., and the said 
 Patrick Burke was duly convicted and found guilty of the felony 
 and robbery aforesaid, as by the said record thereof more fully and 
 at large appears. And the jurors aforesaid, etc., that the said Thomas 
 Butterfield, well knowing the said Patrick Burke to have done and 
 committed the robbery aforesaid, after the same was committed, to 
 wit, on, etc., at, etc., him, the said Patrick Burke, did feloniously re- 
 ceive, harbor, maintain, relieve, aid, comfort, and assist, contrary to 
 the form of the statute, etc., and against the peace, etc. 
 
 The prisoner had been indicted, together with Burke, for a robbery 
 of the note from a person of the name of Turner; and it appeared 
 that, shortly after the robbery was committed, Butterfield applied to 
 his landlady to change the note, but did not succeed, and that Burke 
 then went to a shop to purchase some articles, for the payment of 
 which he tendered the note, and received a large part of it in change, 
 and that during the time he was in the shop Butterfield was wait- 
 ing outside 2 
 
 Bliss then submitted that the evidence did not support the indict- 
 ment. The prisoner is not charged with being an accessory after 
 Cfle fact under the statute which makes receiving stolen goods a 
 felonv, but r 1 1 common law. He is charged with feloniously "re- 
 ceiving, harboring, maintaining, relieving, aiding, comforting, and 
 assisting Burke"; but that is not at all maintained by showing any- 
 thing done witli ibe stolen property. Harboring, etc., means doing 
 
 i In State v. Miller. 182 Mo. 870, 83 B. W. 867 (UXtn. it wns held under n 
 similar statute thai the burden of proving thai the defendant is within the 
 ■ if excepted persons is on him. 
 * Psrt of this case relating to another point is omitted.
 
 SCC. 4) ACCESSORY AFTER THE FACT. 2S7 
 
 something to enable the prisoner to escape. If it had meant assist- 
 ing him in making away with the stolen property, the statute would 
 have been useless; for at common law, to make a man an accessory 
 after the fact, he must have given the felon some personal assistance. 
 "An accessory after the fact is one who knowing a felony to have 
 been committed by another, receives, relieves, comforts, or assists the 
 felon." 1 Hale, 618; Archbold's Crim. Law (7th Ed.) 8. "With re- 
 gard to the acts which will render a man guilty as an accessory after 
 the fact, it is laid down that generally any assistance whatever given 
 to a person known to be a felon, in order to hinder his being appre- 
 hended or tried, or suffering the punishment to which he is condemned, 
 is a sufficient receipt for this purpose, as where a person assists him 
 with a horse to ride away with, or with money or victuals to sup- 
 port him in his escape, or where any one harbors and conceals in 
 his house a felon under pursuit, in consequence of which his pursuers 
 cannot find him ; much more, where the party harbors a felon, and 
 the pursuers dare not take him." Hawk. P. C. p. 2, c. 29, § 26 ; Ros- 
 coe on Cr. Ev. 208. 
 
 Wilkins and Pickering, contra. Quite enough has been proved to 
 leave this case for a jury to decide. There can be no doubt that 
 Butterfield was outside the shop with the intention of aiding and as- 
 sisting Burke in getting rid of the note, and was there with the 
 intention of aiding him in his escape, and he consequently comes 
 within Lord Hale's definition. It is for the jury to say whether he did 
 know that a felony had been committed, and was there to aid and assist. 
 The statute has made no difference. In one sense, enabling the felon 
 to get rid of the stolen property is a mode of preventing his being 
 apprehended and tried, and is a kind of personal assistance; but 
 the true definition is, "any means by which a party, knowing a felony 
 to have been committed, enables the felon to obtain the fruits of that 
 felony." If so, we come within that definition. 
 
 Bliss, in reply. My complaint is that we are charged with re- 
 ceiving and harboring the felon, but the proof is of receiving the 
 goods. That cannot come within the words "comfort and assistance." 
 There is no evidence of any personal act of receiving, comforting, 
 or assisting him, nor any evidence which, at common law, would 
 constitute the prisoner an accessory after the fact. 
 
 Maule, J I think there is evidence of comforting and assist- 
 ing which would make the prisoner an accessory after the fact. If 
 a man stole a horse, and another assisted him in coloring and dis- 
 guising him, so that he could not be known again, that would make 
 him an accessory. Here the prisoner assists the party who has stolen 
 the goods to get rid of them, and thus evade the justice of the country. 
 
 Maule, J. (to the jury). The question is whether 'the pris- 
 oner gave assistance, comfort, and aid to Burke, knowing he had 
 committed this robbery? The evidence is that they were found 
 in Gally's shop, very earnest to get change, and before that, on the
 
 2S8 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 same day, Butterfield had applied to the landlady for change. Now, 
 supposing that Butterfield had known this was a robbery, and was 
 assisting Burke in getting money, and thus suppressing the important 
 evidence of the possession of the note, I think that there was as- 
 sistance within the meaning of the statute. If you are convinced that 
 the prisoner knew that this money was a part of the proceeds of the 
 robbery, and that he went with Burke to enable him to effect his 
 object in getting rid of the money, then you must find him guilty. 
 If he did not know that Burke was guilty of this robbery, or that 
 this bank note was part of it, you ought to acquit him. 
 The prisoner was found guilty. 2 
 
 
 SECTION 5.— PRINCIPAL AND AGENT. 
 
 /, 
 
 COMMONWEALTH v. STEVENS. 
 
 ' (Supreme Judicial Court of Massachusetts, 1S92. 155 Mass. 291, 29 N. E. 508.) 
 
 V) 
 
 Knowlton., J. 3 The only other exceptions argued relate to 
 vf ' ('the refusal of the courTto give the defendant's third request -for 
 instructions to the jury, and to the instructions given. The instruc- 
 tions given were as follows: "If you are satisfied beyond a reason- 
 able doubt that the defendant stood by and saw this sale to the 
 minor, and assented to it, he is liable for the sale. If the defendant 
 used proper care in the selection of his clerks, and used proper pre- 
 cautions by instructions to and supervision of his clerks, he was not 
 bound to personally scrutinize the person of every customer who ap- 
 plied for liquor. If he does see the customers, and any of them are 
 minors, and he stands by, knowing that a sale is made by a clerk to 
 a minor, and he does not prevent it, he is liable. The defendant is 
 not liable if the sale by the clerk was an honest mistake on the part 
 of the clerk as to the age of the person to whom he sold, provided the 
 jury arc satisfied that the master sincerely and honestly intended that 
 his instructions should be obeyed in good faith, and that he was not 
 negligent or careless in the selection of his clerks, or in the regula- 
 tions and precautions which he prescribed for their guidance The 
 evidence as to the other sales made, and the business carried on at 
 the store, is only competent upon the question of the reasonableness 
 
 2 Compare Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912 
 (1888); State v. Jett, •'.'.» Kan. 788, 77 Pac. 646 (1904). 
 
 "The facts proved are (If believed) Buffldenl to make the primmer, stmr, 
 llnbio :is :iii accessory, if in- employed another person to receive, relieve, com- 
 fort, and as I I the principal felons, be did it himself." Gurney, B., in Itex v. 
 JarvlH. •! MOO. & B. ■!<> (1887). 
 
 » Part of this case, relating to a question of evidence, Is omitted.
 
 
 &> 
 
 Sec. 5) 
 
 PRINCIPAL AND AOENT. 
 
 289 
 
 of the precautions taken by the defendant to prevent sales to minors, 
 and whether the method of determining the age of a customer was a 
 reasonable one, or whether it indicated bad faith or negligence on 
 the part of the defendant in the mode of conducting his business." 
 The request was as follows: "If the sale and attendant circumstances 
 found by the jury are consistent with the theory that defendant 
 really intended that no sale should be made to minors, but was 
 merely negligent, then the jury must acquit." Th^qucstiorr-before 
 the jury was, not whether the defendant intended that no sale should 
 be made to minors, but whether the sale which was made was his act. 
 If he made the sale, and intended to make it, it would be no defense 
 that he was mistaken in supposing that the buyer was not a minor. 
 It is to be remembered that the statute forbidding the unlicensed 
 sale of intoxicating liquor, like the laws regulating the sale of milk, 
 and many other similar statutes, punishes the unlawful act, and on 
 grounds of public policy holds the defendant responsible for knowl- 
 edge of the nature of his act; so that it is possible in a supposable 
 case for one to be guilty of a technical violation of the law without 
 culpability, and to find it necessary for his protection to appeal 
 to the sense of justice of those who are intrusted with the administra- 
 tion of the law. Commonwealth v. Uhrig, 138 Mass. 492. If the 
 sale was made by his clerk, and if it was authorized by him by special 
 authority in the particular case, or by a general authority which in- 
 cluded it, it would be no defense to show that he did not intend to 
 make sales to minors, but was negligent in not taking measures to 
 prevent them. Through a long line of cases the test of the master's 
 liability for an act of this kind done by his servant has been whether \ 
 it was done by his authority. Commonwealth v. Putnam, 4 Gray, 16 ; 
 Commoriwealflrv:- Wacl imi fl orf , 141 Mass. 270, 4 N. E. 817; Com- 
 monwealth v. Briant, 142 Mass. 463, 8 N. E. 338, 56 Am. Rep. 707; 
 Commonwealth v. Stevenson, 142 Mass. 466, 8 N. E- 341 ; Common- 
 wealth v. Hayes, 145 Mass. 289, 14 N. E. 151; Commonwealth v. 
 Rooks, 150 Mass. 59, 22 N. E. 436. 
 
 The_criminal liability of a master for the act of his servants does 
 not extend so far as his civil liability, inasmuch as he cannot be held 
 criminally for what the servant does contrary to his orders, and with- 
 out any authority, express or implied, merely because it is in the course 
 of his business and within the scope of the servant's employment; 
 but he would be liable civilly for a tort of this kind. Roberge v. 
 Burnham, 124 Mass. 277; George v. Gobey, 128 Mass. 289, 35 Am. 
 Rep. 376. But if the act is the master's, because done by the servant 
 within his authority, and especially if it is an act which is made 
 punishable even when done in ignorance of its punishable quality, 
 the statute applies to the master as well as to the servant. 
 
 The defendant was not aggrieved by the instructions given. In 
 one part of the case the jury were told that the proof must be be- 
 yond a reasonable doubt, and if the defendant had desired thai 
 Mik.Cr.L— 19 
 
 ■
 
 290 COMBINATIONS OF PERSONS IN CRIME. (Ch. 7 
 
 their attention should be further directed to the degree of proof 
 upon other points he should have asked for an instruction in regard 
 to it. 
 
 A part of the charge was directed to evidence that the defend- 
 ant stood by and saw the sale made, and there was no error in it. 
 The instructions which are chiefly criticised by the defendant's coun- 
 sel followed closely the language of the opinion of this court at 
 the former hearing of this case, reported in 153 Mass. 421, 26 N. 
 E. 992, and the rights of the defendant were fully protected by them. 
 
 Exceptions overruled. 2 
 
 2 See, also, for doctrine that the principal is not responsible for the acts of 
 the agent unless done with his consent or acquiescence. State v. Smith, 10 R. I. 
 258 (1872); Anderson v. State. 22 Ohio St. 305 (1872); Reg. v. Holbrook, 4 
 Q. B. Div. 42 (187S) ; State v. Baker, 71 Mo. 475 (1S80) ; People v. Parks, 49 
 Mich. 333, 13 N. W. 618 (1SS2) ; Commonwealth v. Johnston, 2 Pa. Super. Ct. 
 317 (1896) ; Rosenbaum v. State, 24 Ind. App. 510, 57 N. E. 156 (1900). 
 
 Contra, under particular statutes: McGuire v. State, 37 Miss. 309 (1859) ; 
 Noecker v. People. 91 111. 494 (1879) ; Warren v. State, 38 Ark. 641 (1S82) ; 
 People v. Roby. 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270 (1884) ; Loeb v. 
 /> State, 75 Ga. 258 (18S5). ' 
 
 That the agent is also liable, sop State v. Bugbee, 22 Vt. .''.2 (1849); Smith 
 v. Dist, 12 App. D. C. 33 (1SS7) ; Witherspoon v. State, 39 Tex. Cr. R. 65, 44 
 S. W. 164, 1096 (1898); People v. Dunlap, 32 Misc. Rep. 390, 66 N. Y. 
 Supp. 161 (1900).
 
 ASSAULT, BATTERY, AND MAYHEM. 291 
 
 CHAPTER VIII. 
 ASSAULT, BATTERY, AND MAYHEM. 
 
 It seems that an assault is an attempt, or offer, with force and 
 violence, to do a corporal hurt to another, as by striking at hin: 
 with or without a weapon, or presenting a gun at him at such a dis- 
 tance to which the gun will carry, or pointing a pitchfork at him,, 
 standing within the reach of it, or by holding up one's fist at him, or 
 by any other such like act done in an angry, threatening manner ; 
 and from hence it clearly follows that one charged with assault and 
 battery may be found guilty of the former and yet acquitted of the 
 latter. But e very battery inc ludes an assault. Therefore on an in- 
 dictment of assault and battery, in whteii-the assault is ill laid, if the 
 defendant be found guilty of the battery, it is sufficient. Notwith- 
 standing the many ancient opinions to the contrary, it seems agreed 
 at this clay that no words whatever can amount to an assault. It 
 seems that any injury whatsoever, be it never so small, being actually 
 done to the person of a man in angry, revengeful, rude, or insolent 
 manner, as by spitting in his face, or any way touching him in anger, 
 or violently jostling him out of the way, are batteries in the eye of 
 the law. But it is said to be no battery to lay one's hand gently on 
 another whom an officer has a warrant to arrest, and tell the officer 
 that this is the man he wants. — 1 Hawkins, P. C. 110. 
 
 
 TUBERVIIXE v. SAVAGE. 
 
 (King's Bench, 1669. 1 Mod. 3.) 
 
 A ction o f assault, battery and wounding. The evidence to prove 
 a provocation was, that the plaintiff put his hand upon his sword and 
 said, "If it were not assize-time7T"would not take such language from 
 you." The question was, If that were an assault? The Court agreed 
 that it was not; for the declaration of the plaintiff was, that he would 
 not assault him, the judges being in town; and the intention as well 
 as the act makes an assault. Therefore, if one strike another upon 
 the hand, or arm, or breast in discourse, it is no assault, there being 
 no intention to assault ; but if one, intending to assault, strike at an- 
 other and miss him, this is an assault: so if he hold up his hand 
 against another in a threatening manner and say nothing, it is an as- 
 sault. In the principal case the plaintiff had judgment. 
 
 1 
 
 i Accord: Commonwealth v. Eyre, 1 Serg. & R. (Pa.) 347 (1815).
 
 292 ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 UNITED STATES v. MYERS. 
 
 (Circuit Court of the United States, District of Columbia, 1S06. 1 Cranch, C. 
 
 C. 310. Fed. Cas. No. 15,845.) 
 
 Presentment for an assault on Jane McGrath. The evidence was 
 that the defendant doubled his fist and ran it towards the witness, 
 saying, "If you say so again I will knock you down." 
 
 Mr. Key, for the defendant, contended that it was not an assault. 
 The words explain the act, and show the intention not to be to com- 
 mit a battery. It was like the case of a man putting his hand on his 
 sword, and saying, "If it were not term time or assizes, I would kill 
 you," etc., and he moved the court to instruct the jury that it was no 
 assault. 
 
 Mr. Jones, attorney for the United States, contra. 
 
 The Court (nem. con.) refusing to give the instruction. 
 
 Verdict — guilty. Fined five dollars. 1 
 
 REGINA v. MARCH. 
 
 (Worcester Assizes, 1844. 1 Car. & K. 496.) 
 
 It appeared that the defendant, March, resided in High street, 
 Bordesley, near Birmingham, and dispensed medicines, and also prac- 
 ticed as a surgeon, the other defendant living with him, and that 
 Anne Milne, who came to the defendant March's house for her ac- 
 couchment, was on Saturday, the 18th of May, 1844, delivered of a 
 male child, which the defendants told her was to be taken to a nursery 
 or institution to be brought up. It further appeared that at about 
 2 o'clock in the afternoon on Monday, the 20th of May, 18 1 1, the 
 defendants left their home with the child, and were seen by a witness 
 named Dingley, at between 2 and 3 o'clock on the same afternoon, 
 passing along a footpath leading from the Alcester turnpike road, by 
 the side of Moseley Park, to Edgbaston Lane, and that, soon after 
 that, this witness saw hung from the paling at the side of the foot- 
 path a coarse linen bag, about 2 feet deep and 15 inches wide, which 
 hung upon "lie of the pales by two holes made in the upper part of 
 the bag. This bag contained a child and some pieces of old cloth, 
 which bad formed part of a coat. It was proved by a superintendent 
 of police, named Griffiths, that be took the defendant March into cus- 
 tody on the same afternoon, when the defendant March stated that 
 e the child to a woman named Vincent, who lived in Red L,ion 
 yard and wa a midwife, and that she was to take it to be dry-nursed 
 to some hospital; but the superintendent of police staled that no such 
 
 i Accord: Keefe v. State, L0 Ark. ioo (1857); State v. Home, 02 N. C. 805, 
 53 Am. Rep. 142 (1885).
 
 ASSAULT, BATTERY, AND MAYHEM. 293 
 
 person could be found. Evidence was also given to show., that the 
 bag in which the child was belonged to the defendant March, and 
 that pieces of cloth corresponding with those found with the child 
 were found in his house. It was further proved by Mr. Kimberly, a 
 surgeon, that in his opinion the putting a child of so tender age into 
 a TJag, and then hanging the bag on pales, would be likely to cause the 
 death of the child. 
 
 Huddleston, for the defendants. With respect to the third and 
 fourth counts, 1 I submit that, if there was consent to what was done, 
 there could be no assault. As the child was of so tender age, the 
 consent of its mother might be necessary; but here the defendants 
 had possession of the child by the consent of the mother. 
 
 Tindal, C. J. The mother gave that consent on the false pretext 
 that the child was to be taken to some institution; and, as that pre- 
 text was false, it was really no consent. 
 
 Keating, for the prosecution. I do not understand your lordship 
 to decide that, if the mother had consented to all that was done, there 
 would have been no assault on the child. 
 
 Tindal, C. J. I have not said that. All that I have said is that 
 there is no evidence of any consent on the part of the mother. 
 
 Huddleston addressed the jury for the defendants, and argued that 
 there was no sufficient proof of any intention to murder, so as to sup- 
 port the first and second counts. 
 
 Tindal, C. J. (in summing up). The defendants are charged with 
 having assaulted this child, and in the first and second counts an in- 
 tent to murder is laid. I much incline to think that an intent to 
 murder cannot be fairly inferred here; for, if there had been an in- 
 tention in the prisoners to have murdered this child, a very little differ- 
 ence in the mode of packing up the bag would have carried that in- 
 tention into effect. With respect to the third and fourth counts, there 
 is no real difference in the charges contained in them, a nd the taki ng 
 of jthe child and putting it into a bag was an assault. The case, there- 
 fore, resolves itself into this question: Whether "the defendants are 
 the persons who did take this child, and put it into the bag, and hang 
 it on the palings ; but I think you may acquit them on all those counts 
 which charge an intent to murder. 
 
 The jury found both the defendants guilty on the third and fourth 
 counts of the indictment, and not guilty of the residue of the charge. 2 
 
 i The indictment is omitted. The first count was for attempt to murder ; the 
 third and fourth, for assault. 
 
 2 Compare Res. v. Mulroy, 3 Crawford & Dix, 318 (1843) ; Reg. v. Renshaw, 
 2 Cox, C. C. 285 (1847).
 
 
 -JM ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 STATE v. DANIEL. 
 
 (Supreme Court of North Carolina, 1904. 136 N. C. 571, 48 S. E. 544, 103 Am. 
 
 St Rep. 970.) 
 
 Walker, J. 1 The first instruction was that if the defendant cursed 
 the prosecutor, Alston, and ordered him to come to him, and Alston 
 obeyed through fear, the defendant was guilty of an assault. Be- 
 fore the prosecutor reached the place near the hog pen where the de- 
 fendant was standing, the latter had made no threat, nor had he of- 
 fered or attempted any violence to the person of the prosecutor, nor 
 was there any display or exhibition of force of any kind, so far as the 
 evidence here shows. Jn this state of the case we are unable to sus- 
 tain this instruction as a correct statement of the law of assault. "It 
 would seem," says Reade, J., "that there ought to be no difficulty in 
 determining whether any given state of facts amounts to an assault ; 
 but the behavior of men towards each other varies by such mere 
 shades that it is sometimes very difficult to characterize properly their 
 acts and words." State v. Hampton, 63 N. C. 14. While the law re- 
 lating to this crime would seem to be simple and of easy application, 
 we are often perplexed in our attempt to discriminate between what 
 is and what is not an assault. But in this case we have no such diffi- 
 culty, as the law applicable to the facts has been clearly stated and 
 well settled by the decisions of this court. 
 
 An assault is an intentional offer or attempt by violence to do any 
 injury to the person of another. There must be an offer or attempt. 
 Mere words, however insulting or abusive, will not constitute an as- 
 sault ; nor will a mere threat or violence menaced, as distinguished 
 from violence begun to be executed. Where an unequivocal pur- 
 pose of violence is accompanied by any act which, if not stopped or 
 diverted, will be followed by personal injury, the execution of the 
 purpose is then begun, and there has been a sufficient offer or attempt. 
 State v. Davis, 23 N. C. 125, 35 Am. Dec. 735; State v. Reavis, 113 
 N. C. 677, 18 S. E. 388. This principle, as stated by Judge Gaston 
 in the first case cited, has been adopted as a correct exposition of the 
 law of assault, not only in subsequent decisions of this court, but in 
 numerous cases decided in the courts of the other states. There must, 
 therefore, be not only threatening words or violence menaced, but the 
 defendant must have committed some act in execution of his purpose. 
 It is not necessary at all that his words should be accompanied or 
 followed by an actual battery, for a mere assault excludes the idea 
 of a battery; but lie must cither offer to do violence, as by drawing 
 back his fist or raising a stick, or attempt to do it, as by aiming a 
 blow at another, which <l<>rs not take effeel because it is warded off 
 
 by a third person, or by shouting at another and missing the mark, 
 all of which is clearly and fully explained by Pearson, C. J., in State 
 
 * Port of this ca >'• is (unii ted.
 
 ASSAULT, BATTERY, AND MAYHEM. 295 
 
 v. Myerfield, Gl N. C. 108. It is not necessary, in view of the facts 
 of this case, that we should stop here to state how these acts can be 
 qualified by words or otherwise, and with what restrictions or excep- 
 tions, so as to relieve the accused of any guilt. The law in this respect 
 is also discussed in Myerfield's Case, supra. 
 
 The principle is well established that not only is a person who of- 
 fers or attempts by violence to injure the person of another guilty of 
 an assault, but no one by the show of violence has the right to put 
 another in fear and thereby force him to leave a place where he has 
 the right to be. State v. Hampton, 63 N. C. 13 ; State v. Church, 
 63 N. C. 15; State v. Rawles, 65 N. C. 334; State v. Shipman, 81 
 N. C. 513; State v. Martin, 85 N. C. 508, 39 Am. Rep. 711; State 
 v. Jeffreys, 117 N. C. 743, 23 S. E. 175. It is not always necessary, 
 to constitute an assault, that the person whose conduct is in question 
 should have the present capacity to inflict injury; for if by threats 
 or a menace of violence which he attempts to execute, or by threats 
 and a display of force, he causes another to reasonably apprehend 
 imminent danger, and thereby forces him to do otherwise than he 
 would have done, or to abandon any lawful purpose or pursuit, he 
 commits an assault. It is the apparently imminent danger that is 
 threatened, rather than the present ability to inflict injury, which dis- 
 tinguishes violence menaced from an assault. State v. Jeffries and 
 State v. Martin, supra. It is sufficient if the aggressor, by his con- 
 duct, lead another to suppose that he will do that which he apparently 
 attempts to do. 1 Archb. Cr. Pr., PI. & Ev. (8th Ed. by Pomeroy) 
 907, 908. 
 
 If, therefore, the defendant had threatened the prosecutor with 
 violence and the threat had been accompanied by any show of force, 
 such as drawing a sword or knife, or if he had advanced towards the 
 prosecutor in a menacing attitude, even without any weapon, and had 
 been stopped before he delivered a blow, and the prosecutor had been 
 put in fear and compelled to leave the place where he had the lawful 
 right to be, the assault would have been complete, although he was 
 not at the time in striking distance. But in this case, so far as the 
 facts recited in the first instruction should be considered, there was not 
 even violence menaced, but, at most, only offensive and profane words. 
 There must be an overt act, or an attempt, or the unequivocal appear- 
 ance of an attempt, with force and violence to do a corporal injury — 
 such an act as will convey to the mind of the other person a well- 
 grounded apprehension of personal injury. B_ar ejwords w ill never do; 
 for, however violent they may be, they cannot take the place of that 
 force which is necessary to complete the offense. They are often the 
 exhibition of harmless passion, and do not by themselves constitute a 
 breach of the peace, as the law supposes that against mere rudeness 
 of language ordinary firmness will be a sufficient protection. State 
 v. Covington, 70 N. C. 71.
 
 296 ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 It may be, as suggested, that the positions of the two parties were 
 relatively unequal, as the defendant belonged to a strong and dominant 
 and the prosecutor to a weak and servile race, and it may further be 
 that the words of the prosecutor as he approached the defendant were 
 the cringing utterances of servility and showed great humility and 
 submissiveness, because of the lowliness of his station in life as com- 
 pared with that of the defendant, and therefore he abjectly obeyed the 
 latter's command to come to him. All this may be true ; and while it 
 reflects little credit upon the defendant, whose conduct as it now ap- 
 pears to us cannot be too severely condemned, it cannot have the effect 
 of reversing a long-established principle of the law to which we must 
 adhere; it being founded upon reason and justice and treated by the 
 courts and the text-writers as one of universal application. The case 
 of State v. Milsaps, 82 N. C. 549, illustrates the extent to which the 
 principle has been carried. In that case it appeared that the defendant' 
 addressed grossly insulting language to the prosecutor, and then pick- 
 ed up a stone about 12 feet from the prosecutor, but did not offer to 
 throw it; and the court held that it was not an assault, but only vio- 
 lence menaced, and it was therefore error for the lower court to 
 charge the jury that if the acts and words of the defendant were such 
 as to put a man of ordinary firmness in fear of immediate danger, 
 and the defendant had the ability at the time to inflict an injury, he 
 would be guilty. Substantially to the same effect is State v. Mooney, 
 61 N. C. 434. See, also, Johnson v. State, 43 Tex. 576. In neither 
 of those cases, though, was the prosecutor deterred from doing what 
 he had a right to do, or in any respect unlawfully restrained in his 
 action or conduct or constrained to act contrary to his wishes. 
 
 New trial. 
 
 CHAPMAN v. STATE. 
 (Supreme Court of Alabama, 1884. 78 Ala. 463, 56 Am. Rop. 42.) 
 
 Somerviixe, J. The defendant was indicted for an assault and 
 battery upon the person of one McLeod, and was convicted of a mere 
 assault. 
 
 It may be that, if the indictment had been for robbery, the facts in 
 evidence would have sustained the allegation of an assault, which, in 
 cases of that nature, is often merely constructive; for every attempt 
 at robbery, or to commit rape, or to do other like personal injury, 
 involves within it the idea of an assault, either actual or constructive. 
 
 The present conviction, however, can be sustained only on the theory 
 that it was an assault for the defendant to present or aim an unloaded 
 gun at the person charged to be assaulted, in such a menacing manner 
 as to terrify him, and within such distance as to have been dangerous, 
 had the weapon been loaded and discharged. On this question the 
 adjudged cases, both in this country and in England, are not agreed,
 
 
 
 
 ASSAULT, BATTERY, AND MAYHEM. L ,( J? 
 
 and a like difference of opinion prevails among the most learned com- 
 mentators on the law. We have had occasion to examine these au- 
 thorities with some care on more occasions than the present ; and we 
 are of the opinion that the better view is that presenting an unloaded 
 gun at one who supposes it to be loaded, although within the distance 
 the gun would carry if loaded, is not, without more, such an assault 
 as can be punished criminally, although it may sustain a civil suit for 
 damages. The conflict of authorities on the subject is greatly at- 
 tributable to a failure to observe the distinction between these tw< 
 classes of cases. A civil action would rest upon the i nvas ion of a per- 
 son's "right to live in society without being put in fea r of pers onal 
 harm," and can often be sustained by proof of a negligent act reslilt- 
 ing in unintentional injury. Peterson v. Haffner, 59 Ind. 130, 26 Am. 
 Rep. 81 ; Cooley on Torts, 161. An indictment for the same act could 
 be sustained only upon satisfactory proof of criminal intention to do 
 personal harm to another by violence. State v. Davis, 23 N. C. 125, 
 35 Am. Dec. 735. The approved definition of an assault involves the 
 idea of an inchoate violence to the person of another, with the present 
 means of carrying the intent into effect ; 2 Greenl. Ev. § 82 ; Roscoe's 
 Cr. Ev. (7th Ed.) 296; People v. Lilley, 43 Mich. 521, 5 N. W. 982. 
 Most of our decisions recognize the old view of the text-books that 
 there can be no criminal assault without a present intention, as well 
 as present ability, of using some violence against the person of an- 
 other; 1 Russ. Cr. (9th Ed.) 1019; State v. Blackwell, 9 Ala. 79; 
 Tarver v. State, 43 Ala. 354. In Lawson v. State, 30 Ala. 14, it was 
 said that, "to constitute an assault, there must be the commencement 
 of an act which, if not prevented, would produce a battery." The 
 case of Balkum v. State, 40 Ala. 671, which was decided by a divided 
 court, probably does not harmonize with the foregoing decisions. 
 
 It is true that some of the modern text-writers define an assault 
 as an apparent attempt by violence to do corporal hurt to another, 
 thus ignoring entirely all question of any criminal intent on the part 
 of the perpetrator. 1 Whart. Cr. Ev. § 603 ; 2 Bish. Cr. Law, § 32. 
 The true test cannot be the mere tendency of an act to produce a 
 breach of the peace ; for opprobrious language has this tendency, and. 
 jio^words, however violent or abusive, can at common law constitute 
 _an assault. It is unquestionably true that an apparent attempFto do 
 corporal injury to another may often justify the latter in promptly 
 resorting to measures of self-defense. But this is not because such 
 apparent attempt is itself a breach of the peace, for it may be an act 
 entirely innocent. It is rather because the person who supposes him- 
 self to be assaulted has a right to act upon appearances, where they 
 create reasonable grounds from which to apprehend imminent peril 
 There can be no difference, in reason, between presenting an un- 
 loaded gun at an antagonist in an affray and presenting a walking 
 cane as if to shoot, provided he honestly believes, and from the cir- 
 cumstances has reasonable ground to believe, that the cane was a
 
 298 ASSAULT, BATTERY, AND MAYHEM. (Cll. 8 
 
 loaded gun. Each act is a mere menace, the one equally with the 
 other; and mere menaces, whether by words or acts, without intent 
 or ability to injure, are not punishable crimes, although they may often 
 constitute sufficient ground for a civil action for damages. The test, 
 moreover, in criminal cases, cannot be the mere fact of unlawfully 
 putting one in fear, or creating alarm in the mind; for one may ob- 
 viously be assaulted, although in complete ignorance of the fact, and, 
 therefore, entirely free from alarm. People v. Lilley, 43 Mich. 525, 
 5 X. W. 9S2, 1 Crim. Law. Mag. 605. And one may be put in fear 
 under pretense of begging, as in Taplin's Case, occurring during the 
 riots in London, decided in 1780, and reported in 2 East, P. C. 712, 
 and cited in many of the other old authorities. These views are sus- 
 tained by the spirit of our own adjudged cases, cited above, as well 
 as by the following authorities, which are directly in point : 2 Greenl. 
 Cr. Law Rep. pp. 271-275, and note, where all the cases are fully 
 reviewed; 2 Addison on Torts (Wood's Ed. 1881) pp. 4-7, § 7S8, 
 note 1; Roscoe's Crim. Ev. (7th Ed.) 296; 1 Russell Cr. (9th Ed.) 
 1020; Blake v. Barnard, 9 C. & P. 626; Reg. v. James, 1 C. & P. 
 530; Robinson v. State, 31 Tex. 170; McKay v. State, 44 Tex. 43; 
 State v. Davis, 23 N. C. 125, 35 Am. Dec. 735. 
 
 The opposite view is sustained by the following authors and ad- 
 judged cases: 7 Bish. Cr. Law (7th Ed.) § 32; 1 Whart. Cr. Law 
 (9th Ed.) §§ 603, 182; Reg. v. St. George, 9 C. & P. 483; Com- 
 monwealth v. White, 110 Mass. 407; State v. Shepard, 10 Iowa, 
 126; State v. Smith, 2 Humph. (Tenn.) 457. See, also, 3 Greenl. 
 Ev. (14th Ed.) § 59, note "b" ; 1 Arch. Cr. Pr. & PI. (Pomeroy's 
 Ed.) 907, 282-283; State v. Benedict, 11 Vt. 238, 34 Am. Dec. 688; 
 State v. Neely, 74 N. C. 425, 21 Am. Rep. 496. 
 
 The rulings of the court were opposed to these views ; and the 
 judgment must therefore be reversed, and the cause remanded. 1 
 
 i Accord: People v. Sylva, 143 Cat. 02 (1904); Klein v. State. 9 Ind. App. 
 365, ■■'■'; N. E. 763, 53 Am. St. Rep. 354 (1893) ; State v. Sears, 8G Mo. 169 (1885) . 
 State v. Godfrey, 17 Or. 300. 20 Pac. 625, 11 Am. St. Rep. 830 (18S9) ; McCou- 
 n.ll v. State, 25 Tex. App. 329, 8 S. W. 275 (1888). 
 
 Contra, In addition to cases cited In opinion: People v. Morehouse, 53 Hun, 
 «;::v .; \. v. supp. 703 (18S9); State v. Archer, 8 Kan. App. 737, 54 Pac. !>27 
 (1898). 
 
 "As shown above, the state's case as to the assault depends on the testimony 
 of the prosecutrix, Rosa Singleton, wherein she states that appellant asked Ikt 
 
 s him. ami on iter refusal he reached his hands <>ut as if to grab her, and 
 sh<' jumped out of the door. This may constitute an assault, under the au- 
 thorities; that is, appellanl evidently had the ability of committing a battery 
 
 on prosecutrix, and if, without hep consent, he attempted, by the use of force, 
 to make her kiss him. and she lied to prevent this, then there would he an as 
 
 s.iuit. 1?, on the other hand, appellanl reasonably believed, under ihe cir- 
 cumstances, that prosecutrix WOUld allow him to kiss her. and tliat he merely 
 
 attempted to kiss her by consent, and did not intend to use force to compel her 
 
 to kiss him. then It would not he an assault. The law requires that there 
 must he an Intent to Injure before there can he an assault. The Injury in this 
 case would he to Ihe feelings, and the intent cannot be presumed, because no 
 
 persona] violence or battery was Inflicted ; and this intent the Jury should have 
 been permitted to pass upon under appropriate instructions." Henderson, J.,
 
 ASSAULT, BATTERY, AND MAYHEM. 299 
 
 REGINA v. CLARENCE. 
 
 (Court for Crown Cases Reserved, 1888. 22 Q. B. Div. 23.) 
 
 STEPHEN J. The question in this case is whether a man who knows 
 that he has gonorrhoea, and who by having connection with his wife, 
 who does not know it, infects her, is or is not guilty of an offense 
 either under St. 24 & 25 Vict. c. 100, § 20, or under section 47 of the 
 same act. Section 20 punishes every one who "unlawfully and ma- 
 liciously inflicts any grievous bodily harm upon any other person." 
 Section 47 punishes every one who is convicted of "an assault occa- 
 sioning actual bodily harm to any person." 
 
 Before discussing in detail the meaning of these words I will make 
 one general observation. The present case is the first, so far as ap- 
 pears, in which any person has ever been indicted, or at all events 
 convicted, of any offense whatever for infecting another with a disease 
 of any kind, although diseases of this kind are unhappily common 
 and legislation in reference to them has taken place. The legislation 
 in question is contained in St. 29 Vict. c. 35, and some other acts which 
 amend it. These acts were repealed in 1886. They authorized the 
 detention in hospitals of diseased women under certain circumstances, 
 but they contained nothing to suggest that the communication of the 
 disease was in itself a crime. If such had been the case, the acts in 
 question would probably have been made supplementary to the ordi- 
 nary administration of criminal justice. 
 
 If the present conviction is right, it must be so on some principle 
 which would apply to women as well as to men, and to unmarried 
 women as well as to wives. Section 47, indeed, could hardly apply 
 to women; but section 20 would make no distinction between the 
 sexes. It is also, I think, clear that, unless some distinction can be 
 pointed out which does not occur to me, the sections must be held to 
 apply, not only to venereal diseases, but to infection of every kind which 
 is in fact communicated by one person to another by any act likely to 
 produce it. A man who, knowing that he has scarlet fever or small- 
 pox, shakes hands with a friend and so infects him, may be said to 
 fall under section 20 or section 47 as much as the prisoner in this case. 
 To seize a man's hand without his consent is an assault; but no one 
 would consent to such a grasp if he knew that he risked smallpox by 
 it, and if consent in all cases is rendered void by fraud, including 
 suppression of the truth, such a gesture would be an assault occa- 
 sioning actual bodily harm as much as the conduct of the prisoner 
 in this case. 
 
 in Chambless v. State, 46 Tex. Cr. R. 1, 79 S. W. 578 (1904). Accord: Stripling 
 v. State (Tex. Cr. App.) 80 S. W. 370 (1904). It was held in Fuller v. State, 44 
 Tex. Cr. R. 463. 72 S. W. 184, 100 Am. St. Rep. 871 (1903), that one is not guilty 
 of an assault who, standing several feet from a woman, makes a "kissing 
 sign" — puckering his lips and smacking them — to her.
 
 oOO ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 Not only is there no general principle which makes the communica- 
 tion of infection criminal, but such authority as exists is opposed to 
 such a doctrine in relation to any disease. The following" are the au- 
 thorities on this subject. By St. 1 Jac. I, c. 31, § 7, it was made 
 felony for any person, who had under other provisions of the act 
 been commanded to keep his house, "to go abroad and converse in 
 company having any infectious sore upon him uncured." Upon this 
 Hale, 1 P. C. 432, remarks that the statute is now discontinued, and 
 he adds: "But what if such person goes abroad to the intent to 
 infect another, and another is thereby infected and dies? Whether 
 this be not murder by the common law might be a question, but if no 
 such intention evidently appears though de facto by his conversation 
 another be infected, it is no felony by the common law, though it be 
 a great misdemeanor, and the reasons are: (1) Because it is hard 
 to discern whether the infection arise from the party or from the 
 contagion of the air. It is God's arrow, etc. (2) Nature prompts 
 every man in what condition soever to preserve himself, which cannot 
 be well without mutual conversation. (3) Contagious diseases, as 
 plague, pestilential fevers, smallpox, etc., are common among man- 
 kind by the visitation of God, and the extension of capital punish- 
 ments in cases of this nature would multiply severe punishments 
 too far and give too great latitude and loose to severe punishments." 
 Some of the expressions in this passage would scarcely be employed 
 now, but it may be taken as a caution against wide and uncertain ex- 
 tensions of the criminal law, and as a distinct proof that Hale did not 
 regard the transmission of disease as an ordinary case of the infliction 
 of bodily harm. His statement that, though not a felony, it would 
 be a great misdemeanor at common law to infect another uninten- 
 tionally by going about with a plague sore, may at first sight appear 
 to favor the maintenance of the conviction in this place ; but it is, I 
 think, explained and its generality is limited by Rex v. Vantandillo. 
 It was held in that case to be an indictable misdemeanor to carry a 
 child which had the smallpox along a street, and the passage from 
 Lord Hale was the principal authority relied upon. The offense re- 
 ferred to by Lord Hale is therefore the offense of committing a pub- 
 lic nuisance, and his authority is opposed, rather than favorable, to 
 the notion that to infect another with a contagious disease is in the 
 nature of an offense against the person. The provisions of Public 
 Health Act 1875 (St. 38 & 39 Vict. c. 55) §§ 120-130, and in par- 
 ticular section 120, treats offenses by spreading infection in the same 
 way. By that section an infected person, who without proper pre- 
 tiona exposes himself in any street, etc., is liable to a penalty of 
 /."J. These considerations make it antecedently improbable that the 
 abominable conduct of which the prisoner has been convicted should 
 be in the strict legal sense of the word a crime. 
 
 Infection by the application of an animal poison appears to me to 
 be of a different character from an assault. The administration of
 
 ASSAULT, BATTERY, AND MAYHEM. 301 
 
 poison is dealt with by section 24, which would be superfluous if 
 poisoning were an "infliction of grievous bodily harm either with or 
 without a weapon or instrument." The one act differs from the other 
 in the immediate and necessary connection between a cut or a blow 
 and the wound or harm inflicted, and the uncertain and delayed opera- 
 tion of the act by which infection is communicated. If a man by 
 a grasp of the hand infects another with smallpox, it is impossible 
 to trace out in detail the connection between the act and the disease, 
 and it would, I think, be an unnatural use of language to say that a 
 man by such an act "inflicted" smallpox on another. It would be 
 wrong in interpreting an act of Parliament to lay much stress on 
 etymology, but I may just observe that "inflict" is derived from 
 "infligo," for which, in Facciolati's Lexicon three Italian and three 
 Latin equivalents are given, all meaning "to strike," viz., "dare," 
 "ferire," and "percuotere," in Italian, and "infero," "impingo," and 
 "percutio," in Latin. 
 
 There is authority for the proposition that poisoning is not an as- 
 sault, though in the case of Reg. v. Button, 8 C. & P. 660, in 1838, 
 Serjeant Arabin, after consulting the Recorder of London, Mr. Law, 
 held that it was. In Reg. v. Dilworth, 2 Mo. & Ro. 531, in 1843, a 
 man was indicted for administering poison with intent to murder, 
 and it was suggested that if the intent was not made out the prisoner 
 might be convicted under St. 1 Vict. c. 85, of a common assault, as it 
 was involved in the charge, and Reg. v. Button, 8 C. & P. 660, was 
 cited; but Coltman, J., said that he disagreed with Reg. v. Button, 
 8 C. & P. 660, and that the prisoner must either be convicted or ac- 
 quitted of the whole charge. In Reg. v. Hanson, 2 C. & K. 912, in 
 1849, Vaughan Williams, J., after consulting Cresswell, J., held that 
 the administration of cantharides was neither a common assault nor 
 a common law misdemeanor; and Reg. v. Walkden, 1 C. C. C. 282, 
 was a decision to the same effect by Parke, B. 1 Upon these grounds 
 I am of opinion that section 20 does not apply to the case. 
 
 Is the case, then, within section 47 as "an assault occasioning actual 
 bodily harm"? The question here is whether there is an assault. It 
 is said there is none, because the woman consented; and to this it is 
 replied that fraud vitiates consent, and that the prisoner's silence was 
 a fraud. Apart altogether from this question, I think that the act 
 of infection is not an assault at all, for the reasons already given. 
 Infection is a kind of poisoning. It is the application of an animal 
 poison, and a poisoning, as already shown, is not an assault. Apart, 
 however, from this, is the man's concealment of the fact that he 
 was infected such a fraud as vitiated the wife's consent to his ex- 
 
 i Accord: Garnet v. State, 1 Tex. App. 605. 2S Am. Rep. 425 (1S77). Contra. 
 Commonwealth v. Stratton, 114 Mass. 303, 20 Am. Rep. 350 (.1873) ; Carr v. 
 State, 135 Ind. 1, 34 N. E. 533, 20 L. R. A. SG3, 41 Am. St. Rep. 40S (1893) ; 
 State v. Monroe, 121 N. C. 677, 2S S. B. 547, 43 L. R. A. 861, 61 Am. St. Rep. 
 686 (1897).
 
 302 ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 ercise of marital rights, and converted the act of connection into 
 an assault? It seems to me that the proposition that fraud vitiates 
 consent in criminal matters is not true, if taken to apply in the fullest 
 sense of the word and without qualification. It is too short to be true, 
 as a mathematical formula is true. If we apply it in that sense to 
 the present case, it is difficult to say that the prisoner was not guilty 
 of rape, for the definition of rape is having connection with a woman 
 without her consent ; and if fraud vitiates consent, every case in which 
 a man infects a woman or commits bigamy, the second wife being 
 ignorant of the first marriage, is also a case of rape. Many seduc- 
 tions would be rapes, and so might acts of prostitution procured by 
 fraud, as, for instance, by promises not intended to be fulfilled. These 
 illustrations appear to show clearly that the maxim that fraud vitiates 
 consent is too general to be applied to these matters as if it were 
 absolutely true. I do not at all deny that in some cases it applies, 
 though it is often used with reference to cases which do not fall within 
 it. For instance, it has nothing to do with such cases as assaults on 
 voung children. A young child who submits to an indecent act no more 
 consents to it than a sleeping or unconscious woman. The child 
 merely submits without consenting. The only cases in which fraud 
 indisputably vitiates consent in these matters are cases of fraud as to 
 the nature of the act done. As to fraud as to the identity of the person 
 by whom it is done, the law is not quite clear. In Reg. v. Flattery, 
 2 Q. B. D. 410, in which consent was obtained by representing the act 
 as a surgical operation, the prisoner was held to be guilty of rape. 
 In the case where consent was obtained by the personation of a hus- 
 band, there was before the passing of the criminal law amendment 
 act of 1885 a conflict of authority. The last decision in England, Reg. 
 v. Barrow, Law Rep. 1 C. C. R. 158, decided that the act was not rape, 
 and Reg. v. Dee, 14 L. R. Ir. 468, decided in Ireland in 1884, decided 
 that it was. The criminal law amendment act of 1885 "declared and 
 enacted" that thenceforth it should be deemed to be rape, thus favor- 
 ing the view taken in Reg. v. Dee, 14 L. R. Ir. 468. I do not propose 
 to examine in detail the controversies connected with these cases. The 
 judgments in the case of Reg. v. Dee, 14 L. R. Ir. 468, examine all 
 of them minutely, and I think they justify the observation that the 
 only sorts of fraud which so far destroy the effect of a woman's con- 
 sent as to convert a connection consented to in fact into a rape are 
 frauds as to the nature of the act itself, or as to the identity of the per- 
 il who does the act. There is abundant authority to show that such 
 frauds as these vitiate consent both in the case of rape and in the case 
 of indecenl a sault. T should myself prefer to say that consent in 
 such cases does not exist at all, because the act consented to is not the 
 act done. Consent to a surgical operation or examination is not a 
 consent to sexual connection or indecent behavior. Consent to connec- 
 tion with a husband is not consent to adultery. 
 
 I do not think that the maxim that fraud vitiates consent can be
 
 ASSAULT, BATTERY, AND MAYHEM. 303 
 
 carried further than this in criminal matters. It is commonly applied 
 to cases of contract, because in all cases of contract the evidence of 
 a consent not procured by force or fraud is essential; but even in 
 these cases care in the application of the maxim is required, because 
 in some instances suppression of the truth operates as fraud, where- 
 as in others at least a suggestion of falsehood is required. The 
 act of intercourse between a man and a woman cannot in any case be 
 regarded as the performance of a contract. In the case of married 
 people that act is a part of a great relation based upon the greatest of 
 all contracts, but standing on a footing peculiar to itself. In all other 
 cases the immorality of the act is inconsistent with any contract re- 
 lating to it. Thus in no case can considerations relating to contract 
 apply to it. The effect of fraud upon a contract is to render it void- 
 able at the option of the party defrauded. This clearly cannot apply 
 to sexual intercourse. It is either criminal if the woman does not 
 consent, or if her consent is obtained by certain kinds of fraud, or it 
 is, as this was, a breach of matrimonial duty, or it is not criminal at all. 
 
 The woman's consent here was as full and conscious as consent 
 could be. It was not obtained by any fraud, either as to the nature 
 of the act or as to the identity of the agent. The injury done was 
 done by a suppression of the truth. It appears to me to be an abuse 
 of language to describe such an act as an assault. It is not stated at 
 what interval after December 20th the disease showed itself ; but there 
 must have been some interval during which it was uncertain whether 
 infection had been communicated or not. During this interval was 
 the man guilty or not? If he was, it seems extraordinary to say that 
 he had committed an assault from which an event which was not in 
 his power could set him free. If he was not, it seems to me equally 
 strange to say that he could be deprived of his innocence by such an 
 event. In some instances, no doubt, such an interval might elapse. 
 If a man laid a trap for another, into which he fell after an interval, 
 the man who laid it would during the interval be guilty of an attempt 
 to assault, and of an actual assault as soon as the man fell in. In 
 the case of death inflicted by violence, the criminal might at first be 
 guilty of an assault or an unlawful wounding, and his crime would 
 become murder or manslaughter on the death of the person wounded ; 
 but in the case of an attempt the intention to consummate the crime 
 exists from the first, and in the case of murder the act which ulti- 
 mately becomes murder is in itself a crime, whether death ensues or 
 not. In this case there was no intention, and therefore no attempt 
 to infect, and it seems anomalous to make a consequence which, though 
 highly probable, was neither intended nor necessary, relate back on its 
 occurrence in such a way as to turn an act not punishable itself into a 
 crime. 
 
 Two authorities were quoted to show that such an act as this is 
 a crime. They are Reg. v. Bennett, 4 F. & F. 1105, in which Willes, 
 J., decided in 1866 that a man who infected his niece, a girl of 13,
 
 304 ASSAULT, BATTERY, AND MAYHEM. (Cll. 8 
 
 might be convicted of an indecent assault, though she consented to 
 sleep with him, and Reg. v. Sinclair, 13 Cox, C. C. 28, in which this 
 decision was followed in 1867 by Shee, J. The case of Reg. v. Ben- 
 nett, 4 F. & F. 1105, was disapproved of in Hegarty v. Shine, 2 L. R. 
 Ir. 273, 4 L. R. Ir. 2S8, though, as the Irish courts point out, the ver- 
 dict may possibly have been justified by the facts as proved; the girl 
 having sworn that she was asleep and could not say what happened 
 to her. If this was believed, there was evidence of indecent assault, 
 at least, if not of rape. Reg. v. Sinclair, 13 Cox, C. C. 28, was de- 
 cided on the authority of Reg. v. Bennett, 4 F. & F. 1105. 
 
 For these reasons I think there was no assault in the present case, 
 and that therefore it does not fall within section 20. 
 
 I wish to observe on a matter personal to myself that I was quoted 
 as having said in my Digest of the Criminal Law that I thought a 
 husband might, under certain circumstances, be indicted for rape on 
 his wife. I did say so in the first edition of that work, but on re- 
 ferring to the last edition (page 124, note) it will be found that that 
 statement was withdrawn. 
 
 I think that this conviction should be quashed. No one can doubt 
 the abominable nature of the prisoner's conduct; but, if it is to be 
 treated as a crime, it must, I think, be done upon express statutory 
 authority. The whole matter is surrounded with difficulties with which 
 the Legislature alone is competent to deal, and to which it would be 
 out of place to refer. 
 
 I am informed that my Brother Grantham agrees with this judg- 
 ment. 2 
 
 Field, J. This indictment contains two counts, expressed, respec- 
 tively, in the actual words of St. 24 & 25 Vict. c. 100, §§ 20, 47, and 
 charging the prisoner under section 20 with "unlawfully and mali- 
 ciously inflicting" upon his wife "grievous bodily harm," and under 
 section 47 with "an assault" upon his wife "occasioning actual bodily 
 harm." The facts proved were that the prisoner had sexual inter- 
 course with his wife at a time when to his knowledge he was suffering 
 from gonorrhoea, his wife being ignorant of this fact; that, had she 
 known of it, she would not have consented to the intercourse; and 
 that the result of the connection was to communicate to her the disease. 
 The learned Recorder of London directed the jury that if these facts 
 were established they might find the prisoner guilty on both or either 
 of the counts. The jury found the prisoner guilty, and the learned 
 Recorder has stated the case now before us, in which he asks the 
 opinion of this couii whether his direction was right in point of law, 
 and whether upon these facts the prisoner could be properly con- 
 victed "u both or either of the counts. 
 
 The answer to this question depends on the true construction of 
 the act under which the indictment was preferred, and on a considcra- 
 
 olerldge, C J., Manlaty, Willeg, and Smith, JJ.. and Pollock, B., deliver- 
 ed concnrrlug opinions, In which Matthew, J., and Huddk'ston, B., agreed.
 
 ASSAULT, BATTERY, AND MAYHEM. 305 
 
 lion of the authorities, and I have come to the conclusion that the 
 direction of the learned Recorder was right, and that the prisoner was 
 properly convicted on both counts. 
 
 The questions, then, are: First, did the prisoner "unlawfully and 
 maliciously inflict grievous bodily harm" on his wife? Secondly, did 
 the prisoner "occasion bodily harm" to his wife by an "assault"? 
 
 Now, it has long been established that a man who takes indecent 
 liberties with a woman, or has or attempts to have connection with 
 her, may be properly convicted either of indecent assault or rape, 
 which includes an assault, according to the circumstances of the case, 
 if the acts were done without her consent, express or implied, or 
 against her will. It is, I think, also clear that if the condition. of the 
 man is such that it is an ordinary and natural consequence of the con- 
 tact to communicate an infectious disease to the woman, and he does 
 so, he does in fact inflict upon her both "actual" and "grievous bodily 
 harm." Such an act produces what a great authority, Lord Stowell, 
 describes as "an injury of a most malignant kind." See the note to 
 Durant v. Durant, 1 Hagg. Eccl. Cases, 768. It is also well settled 
 that every sane man must be taken to intend the natural and reason- 
 able consequences of his acts, and the intentional infliction of grievous 
 bodily harm, unless justified or excused by law, is to my mind "ma- 
 licious and unlawful." 
 
 Thus far the case rests upon what seem to me to be known and 
 generally adopted principles. But it is argued that here there is no 
 offense, because the wife of the prisoner consented to the act, and I 
 entertain no doubt that, if that was so, there was neither assault nor 
 unlawful infliction of harm. Then, did the wife of the prisoner con- 
 sent? The ground for holding that she did so, put forward in argu- 
 ment, was the consent to marital intercourse which is imposed upon 
 every wife by the marriage contract, and a passage from 1 Hale's 
 Pleas of the Crown, p. 629, was cited, in which it is said that a hus^ 
 band cannot be guilty of rape upon his wife, "for by their mutual 
 matrimonial consent and contract the wife hath given up herself in 
 this kind to her husband, which she cannot retract." The authority 
 of Hale, C. J., on such a matter, is undoubtedly as high as any can 
 be; but no other authority is cited by him for this proposition, and 
 I should hesitate before I adopted it. There may, I think, be many 
 cases in which a wife may lawfully refuse intercourse, and in which, 
 if the husband imposed it by violence, he might be held guilty of a 
 crime. Suppose a wife, for reasons of health, refused to consent to 
 intercourse, and the husband induced a third person to assist him 
 while he forcibly perpetrated the act; would any one say that the 
 matrimonial consent would render this no crime? And there is the 
 great authority of Lord Stowell for saying that the husband has no 
 right to the person of his wife if her health is endangered. Popkin 
 v. Popkin, 1 Hagg. Eccl. Cases, note to Durant v. Durant, 765. It 
 seems to me, however, unnecessary to decide that question in the 
 Mik.Ce.L.— 20
 
 306 ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 present case, because the prisoner's wife undoubtedly did consent in 
 fact to the act of intercourse, and therefore consented to all natural 
 and ordinary attendant circumstances or consequences of the act, and 
 also to such as were reasonably within her knowledge and contem- 
 plation. 
 
 Had, then, the harm inflicted upon or occasioned to the prisoner's 
 wife been one of the consequences of an ordinary natural and healthy 
 connection, or had she known or had reasonable grounds for thinking 
 that her husband was in a diseased condition, her consent to the con- 
 sequences would, I think, be implied, and so no offense would have 
 been committed. In the same way I think that, if a man knowingly 
 consorts with a prostitute, who gains her livelihood by promiscuous 
 intercourse, it may well be implied that he accepts all the consequences ; 
 also, had the prisoner in this case not been aware of his condition, 
 his act would not have been malicious or an assault, for, as he would 
 have had no reason to suppose that his wife would do other than con- 
 sent, he would have a right to act upon the implication ; and I think, 
 therefore, that upon the construction which I am putting upon the 
 act there will be no danger of bringing within its definitions an in- 
 jury caused by an innocent or merely thoughtless act of affection be- 
 tween husband and wife. But I have said that here there undoubtedly 
 was consent on the part of the prisoner's wife to the act of intercourse, 
 and it is now necessary to consider what were the actual circumstan- 
 ces attending this act of intercourse, and what was the nature and 
 condition of the intercourse to which the consent was given. 
 
 The actual circumstances were that the prisoner, knowing he had a 
 foul and infectious disease upon him, and that the infection of his 
 wife would be the natural and reasonable consequence of intercourse, 
 solicited intercourse. He also knew that his wife consented to it in 
 ignorance of his condition. Under these circumstances, I think that 
 her consent to the intercourse in fact was given upon the implied 
 condition that to the knowledge of the prisoner the nature of the in- 
 tercourse was that to which she had bound herself to consent and had 
 been accustomed to consent ; i. e., a natural and healthy connection. 
 But the intercourse which the prisoner imposed upon his wife was of 
 a different nature — one which, in all probability, would communicate 
 to her a foul disease, and to which the jury have found that she would 
 not have consented, had she known the state of his health. It seems 
 to me, therefore, to follow that the mere consent of the prisoner's wife 
 to an act innocent in itself, and in no way injurious to her, was no con- 
 sent at all to what the prisoner did, and, moreover, that he obtained 
 such consent as she gave by willfully suppressing the fact that he 
 was suffering from di ease. Such an act between husband and wife 
 is, 1 cannot doubt, unlawful. In the divorce court it has been held that 
 the willful or reckless communication of disease by the one to the 
 other amounts to legal cruelty, involving the liability to rescission of 
 the marriage contract BO Ear as regards cohabitation and intercourse.
 
 ASSAULT, BATTERY, AND MAYHEM. 307 
 
 Boardman v. Boardman, L. R. 1 P. & D. 233. There was, I think, 
 a clear duty cast upon the prisoner before he solicited the intercourse 
 to communicate his condition to his wife, and the imposition of in- 
 tercourse without such communication amounted to a false represen- 
 tation by act and conduct that he was in the same healthy and natural 
 condition as he had been upon previous occasions of lawful intercourse. 
 
 The result, therefore, at which I have arrived is that there was 
 no consent in fact by the prisoner's wife to the prisoner's act of inter- 
 course, because, although he knew, yet his wife did not know, and he 
 willfully left her in ignorance as to the real nature and character of 
 that act. This being so, it follows that there was both an assault and 
 a criminal infliction of harm. 
 
 I have arrived at this result by my own unaided construction of the 
 statute and consideration of the law. I now proceed to consider the 
 authorities. They may be divided, according to the facts which they 
 present, into three classes of cases. The first class consists of cases in 
 which a wife's consent has been obtained by the fraud of the prisoner, 
 inducing her to believe that he was her husband. Reg. v. Saunders, 
 8 C. & P. 265; Reg. v. Williams, 8 C. & P. 286. The second class 
 consists of cases in which the woman's consent was obtained by fraudu- 
 lent conduct, inducing her to believe that she was undergoing medical 
 treatment or examination. Rex v. Rosinski, 1 Moody, C. C. 19 ; Reg. 
 v. Case, 4 Cox, C. C. 220; Reg. v. Flattery, 2 Q. B. D. 410. The 
 third class consists of cases in which, as in the present case, the con- 
 sent of the woman was given in consequence of the willful and un- 
 lawful suppression of an injurious change of natural and previously 
 known conditions. Reg. v. Bennett, 4 F. & F. 1105; Reg. v. Sin- 
 clair, 13 Cox, C. C. 28; Hegarty v. Shine, 14 Cox, C. C. 124, C. A. 
 145. Although these cases differ in themselves as to the facts and 
 as to the language used by the court, all of them, except Hegarty v. 
 Shine, 14 Cox, C. C. 124. C. A. 145, are, as it seems to me, governed 
 by the same principle, which is that, though the woman consented to 
 the act of intercourse, she did not consent to it in its actual nature 
 and conditions. In Reg. v. Case, 4 Cox, C. C. 220, the girl did not 
 resist from a bona fide belief, willfully induced by the prisoner, that 
 she was being treated medically, and the learned Recorder of London, 
 a judge of wide experience in criminal cases, directed the jury that, 
 if they were satisfied that the act was committed under such circum- 
 stances, the prisoner's conduct amounted to an assault. This direc- 
 tion was approved by Wilde, C. J., who says in his judgment: "She 
 made no resistance to an act which she supposed to be quite different 
 from what was done, and therefore that which was done was done with- 
 out her consent. Coleridge, J., whose knowledge and experience in 
 these matters could not be surpassed, said : "She makes no resistance 
 only in consequence of the confidence which she reposed in the defend- 
 ant as her medical adviser. If there had been no consent, the defend- 
 ant's act would have been indisputably an assault." Piatt, B., said:
 
 308 ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 "The girl consents to one thing, and the defendant does another; that 
 other involving an assault." This was a decision of the Court for 
 the Consideration of Crown Cases Reserved. In the case of Reg. v. 
 Flattery, 2 Q. B. D. 410, in the same court, a case of the second 
 class, the same doctrine was held; Kelly, C. B., saying: "The girl 
 only submitted to the plaintiff touching her person in consequence 
 of the fraud and false pretenses of the prisoner, and the only thing 
 she consented to was the surgical operation." 
 
 In these cases the fraud by which the consent was obtained was a 
 fraud as to person and circumstances, and did not, as in this case, 
 relate to the very act of connection, its physical nature and conditions, 
 and it seems to me to follow that a consent induced by a fraud re- 
 lating to the physical nature and conditions of the act itself falls still 
 more clearly within this principle. Accordingly so it was held in Reg. 
 v. Bennett, 4 F. & F. 1105. There that very eminent judge, Willes, 
 J., applied this doctrine, and held that the consent to one act obtained 
 by fraud as to its physical nature was no consent to a different act 
 injurious in its nature, and to which the consent was never intended 
 to be applied. In this respect he was followed by Shee, J., in Reg. v. 
 Sinclair, 13 Cox, C. C. 28. 
 
 It is true that in Hegarty v. Shine, 14 Cox, C. C. 124, C. A. 145, 
 some of the judges in the Irish courts expressed disapproval of the 
 ruling of Willes, J., in Reg. v. Bennett, 4 F. & F. 1105, as tending 
 to show that any fraud is sufficient to convert a civil act of breach 
 of duty into a criminal one, and reliance was placed on this in the ar- 
 gument against the conviction. But I think this disapproval rests 
 upon a misunderstanding of the ruling of Willes, J. As I under- 
 stand, that very learned judge never meant to say that any fraud 
 must vitiate the consent, but that a consent obtained to one act is not 
 a consent to an act of a different nature, and if obtained by a fraud 
 as to its nature would not render the act lawful. In Hegarty v. Shine, 
 M Cox, C. C. 124, C. A. 145, in the Court of Appeal, Reg. v. Bennett. 
 4 F. & F. 1105, was distinguished, and in no way departed from, and 
 the actual decision in Hegarty v. Shine, 14 Cox, C. C. 124, C. A. 
 1 15, does not seem to me in any way to touch the present case. 
 
 I think, therefore, that the conviction should be affirmed. I am 
 ired to add that my Brother Charles concurs in this judgment. 3 
 
 Conviction quashed. 
 
 ■ Hawkins, J., delivered a concurring opinion, with which Day, J., b greed. 
 
 Threats unaccompanied by any overl act afford u<> Justification for an as- 
 sault. People v. Wright, 45 Cal. 2<;o (is::'.); Rauck v. State, 110 Lad, 384, 11 
 N B. 460 (1888). 
 
 At common law Insulting remarks <in not justify an assault, state v. n<*r- 
 rlngton, 21 Ark. 195 (1800); state v. Griffin, 87 Mo. 608 (1885). Bui this rule 
 has been changed by Btatute In some states. Splgner v. State, L03 Ala. '■'•". 15 
 South. 802 (1893); Murphy v. State, 92 Ga. 75, 17 S. E. sir. ( 1 S'J3) ; Wood v. 
 State, <;i Miss. 761, '± South. 247 (i.v>7j.
 
 ASSAULT, BATTERY, AND MAYHEM. 309 
 
 REGINA v. COTESWORTH. 
 
 (Nisi rrius, 1704. 6 Mod. 172.) 
 
 The indictment was for a battery upon Dr. R. The evidence was 
 that the defendant spit in his face. 
 
 Hoi/r, C. J. It is a battery. 
 
 Though one cannot justify a battery by son assault demesne, by 
 pleading it to an indictment, yet he may give it in evidence upon a not 
 guilty, and he may be thereupon acquitted. 
 
 REX v. GILL. 
 (King's Bench, 1719. 1 Str. 190.) 
 
 Indictment for throwing down skins into a man's yard, which was 
 a public way, per quod another man's eye was beat out. On the evi- 
 dence it appeared the wind took the skin, and blew it out' of the way, 
 and so the damage happened. The Chief Justice remembered the 
 case of the hoy (1 Str. 128) and that in Hob. 134, where, in exercis- 
 ing, one soldier wounded another, and a case in the Year Book of 
 a man lopping a tree, where the bough was blown at a distance and 
 killed a man; and in the principal case the defendants were acquitted. 
 
 STATE v. DAVIS. 
 
 (Court of Appeals of South Carolina, 1S32. 1 Hill, 46.) 
 
 Indictment for assault and battery, at Edgefield. Fall term, 1832. 
 Verdict — Guilty. 
 
 Johnson, J., delivered the opinion of the court. 
 
 The case made by the judge's notes, taken on the trial, and the 
 concessions at the bar, appears to be this: Mr. Griffin, a gentleman 
 of the bar, placed in the hands of James Robertson, the prosecutor, 
 one of the deputy sheriffs of Edgefield district, a paper purporting to 
 be a mortgage on a negro, then in the possession of Davis. Robert- 
 son found the negro at Hamburg, and took him into his possession; 
 and having occasion to stop for the night on his way to Edgefield, 
 when he went to bed he chained the negro to his bedpost, and in 
 addition to this tied the negro with a rope, one end of which was 
 tied to his own body. The defendants came to the house at night, and 
 avowed their determination to retake the negro at all hazards, and, 
 despite of Robertson's remonstrances, broke the chain, cut the rope, 
 and carried the negro off, without having done any other violence to 
 the person of the prosecutor; and the leading question is whether 
 this, in law, was an assault.
 
 310 ASSAULT, BATTERY, AND MAYHEM. (Cll. 8 
 
 The general rule is that any attempt to do violence to the person 
 of another, in a rude, angry, or resentful manner, is an assault; and 
 raising a stick or fist within striking distance, pointing a gun within 
 the distance it will carry, spitting in one's face, and the like, are the 
 instances usually put by way of illustration. No actual violence- is 
 done to the person in any one of these instances ; and I take it as very 
 clear that that is not necessary to an assault. It has therefore been 
 held that beating a house in which one is, striking violently a stick 
 which he holds in his hand, or the horse on which he rides, is an 
 assault ; the thing in these instances partaking of the personal in- 
 violability. Respublica v. De Longchamps, 1 Dall. (Pa.) 114, 1 L. 
 Ed. 59; Wamborough v. Schanck, Pen. Rep. 229, cited 2 part. Esp. 
 Dig. 173. What was the case here? Laying the right of property in 
 the negro out of the question, the prosecutor was in possession, and, 
 legally speaking, the defendants had no right to retake him with force. 
 As far as words could go, their conduct was rude and violent in the 
 extreme. They broke the chain with which the negro was confined 
 to the bedpost, in which the prosecutor slept, and cut the rope by 
 which he was confined to his person, and are clearly within the rule. 
 The rope was as much identified with his person as the hat or coat 
 which he wore, or the stick which he held in his hand. The convic- 
 tion was, therefore, right. 
 
 Motion dismissed. 1 
 
 FOSTER v. PEOPLE. 
 
 (Court of Appeals of New York, 1872. 50 N. T. 598.) 
 
 Andrews, J. 2 The prisoner intentionally aimed a blow at the head 
 of the deceased with a dangerous weapon, and with a force likely to 
 fracture the skull, and which in fact did crush it ; and it is insisted 
 that upon this evidence, and in the absence of any proof of antecedent 
 or subsequent facts tending to establish it, the jury might have found 
 
 i Compare Kirland v. State, 43 Ind. 146, 13 Am. Rep. 38G (1873). 
 
 For battery l>v the use of excessive force, where some degree of force was 
 Justifiable, Bee Floyd v. State, ante, p. 23$. 
 
 In England and In the United states statutes have been enacted creating 
 pertain aggravated assaults and batteries substantive crimes, and increasing 
 the common-law punishment. Among others are: 
 
 Assault with a deadly weapon, People v. War, 20 Cal. 117 (1862). 
 
 Assault witii intent to malm, Rej v. iioit, ante, p. '.»•".. 
 
 Assault, willi intent to In IS ict grievous bodily harm, Rex v. Gillow, ante, 
 p. 115. 
 
 Assault widi Intent to murder, Rex v. Holt, ante, p. 93; Simpson v. State, 
 ante, p. 202; stale v. Morgan, ante, p. 266. 
 
 Assault with intent to ravish, Wliitten v. State, anle, p. 181. 
 
 Maliciously wounding, Reg. v. Latimer, ante, p. 89. 
 
 Wounding wllli intent t«, prevent lawful apprehension, Rex v. Dullln, ante, 
 p. 92. 
 Btabblng, Floyd v. state, ante. p. 239. 
 i Part of the opinion Is omll ted.
 
 Y<h*#* fa , ^ fans. 
 
 ASSAULT, BATTERY, AND MAYHEM. 311 
 
 that the prisoner's intent was to fracture the skull or injure the head, 
 and not to kill, and if such intent had been found there was an as- 
 sault with an attempt to maim, within the statute. Mayhem at com- 
 mon law is defined by Blackstone as violently depriving another of 
 the use oi such of his members as may render him less able, in fight- 
 ing, either to defend himself or to annoy his adversary. 4 Bl. 20 I. 
 
 It was recognized as a felony at a very early period of the common 
 law, and the offender was punished by the loss of the same member 
 of which he had deprived the party maimed — "membrum pro membro." 
 
 It was treated as an offense against the state, for the reason as- 
 signed by Lord Coke (1 Inst. 127) : "For the members of every sub- 
 ject are under the safeguard and protection of the law, to the end a 
 man may serve his king and country when occasion shall be offered." 
 
 The special injuries which constitute mayhem are stated by Haw- 
 kins as follows: 
 
 "And therefore the cutting off or disabling or weakening a man's 
 hand or finger, a striking out his eye or foretooth, or castrating him, 
 are said to be maims; but the cutting off his ear or nose are not 
 esteemed maims, because they do not weaken, but only disfigure, him." 
 1 Hawkins' Pleas of the Crown, 107. 
 
 And Blackstone treats it as an injury resulting in a permanent dis- 
 ability, and says it is attended with this aggravating circumstance: 
 that thereby the party injured "is forever disabled from making so 
 good a defense against future external injuries as he otherwise might 
 have done." 3 Bl. 131. 
 
 An injury to the head or skull is not specified by Hawkins or Black- 
 stone as mayhem; and as the usual consequence of such an injury is 
 either death or temporary disability, it does not seem to be embraced 
 within the definition of that crime as given by these commentators. 
 
 In the definition of mayhem by Lord Coke the breaking of the skull 
 is included. 
 
 "Mayhem," he says, "signifieth a corporal hurt, whereby a man loseth 
 a member, by reason whereof he is less able to fight, as by putting 
 out his foretooth, breaking his skull, striking off his arm, hand, or 
 finger, cutting off his leg or foot, or whereby he loseth the use of any 
 of his said members." Coke, Litt. 288a. 
 
 And Lord Coke refers to the authority of Glanville and Britton in 
 support of this definition: 
 
 "Mayhem," says Glanville, "signifies the breaking of any bone or 
 injuring the head by wounding or abrasion. In such case the accused 
 is obliged to purge himself by the ordeal — that is, by the hot iron, 
 if he be a freeman; by water, if he be a rustic." Glanville (Blain's 
 Translation) book 14, c. 1, 350. See, also, Britton (Nichols' Tranla- 
 tion) liv. 1, c. 26, fols. 48b, 49a, 123. 
 
 Some recognized instances of mayhem are omitted in Glanville's 
 definition, and it would seem to include any injury to the head, how-
 
 '■ . 
 
 -r- *cS <e-A(h6) mi 
 
 312 ASSAULT, BATTERY, AND MAYHEM. (Ch. 8 
 
 ever trivial. But no authority has been cited subsequent to the time 
 of Lord Coke, nor has any come to our notice, for the proposition that 
 a fracture of the skull is mayhem, except that Mr. East, in his Pleas 
 of the Crown (page 393), after giving the general definition of may- 
 hem at common law, and instances in illustration of it, concludes, "or 
 as Lord Coke adds, breaking the skull." 
 
 But, whatever acts may have been recognized as mayhems at a re- 
 mote period of the common law, the crime and the punishment be- 
 came the subject of statute definition and regulation. Some statutes 
 had been passed upon the subject prior to the reign of Charles II, but 
 the first general and comprehensive one was St. 22 & 23 Car. II, c. 1, 
 entitled "An act to prevent malicious maiming and wounding." 
 
 Chitty speaks of it as the most important and extensive ancient 
 statute upon this subject. Criminal Law, vol. 3, p. 785. And Black- 
 stone says that this and the prior statutes "put the crime and punish- 
 ment of mayhem more out of doubt." 4 Bl. 206. 
 
 By this statute it is enacted that any person who "shall on purpose 
 and of malice aforethought, by lying in wait, unlawfully cut out or 
 disable the tongue, put out the eye, slit the nose or lip, or cut off or 
 disable any limb or member of any subject, with intention in so doing 
 to maim or disfigure him in any of the manners aforesaid," shall be 
 guilty of felony without benefit of clergy. 
 
 Whatever may have been the law of mayhem in England antecedent 
 to this statute, no case can be found, we think, arising since its enact- 
 ment, in which an injury to the head, or any act or injury, has been 
 regarded as mayhem, other than the acts and injuries enumerated in 
 this statute. 
 
 It has been regarded as defining what before may have been un- 
 certain. And it was held in Rex v. Lea, 1 Leach, 51, where a husband 
 had cut the throat of his wife quite across, that it was not maiming 
 within this statute. 
 
 The act of Car. II has been the basis of the legislation of this state 
 on the subject of maiming. 
 
 The first act was passed in 1788, and is entitled "An act to prevent 
 malicious wounding and maiming." 
 
 This act was followed by the act of 1801, entitled "An act to pre- 
 vent malicious maiming," which latter act was substantially a re-enact- 
 ment of the former, except in respect to punishment. 
 
 In both statutes the enumeration and description of the injuries 
 which are made punishable is the same as in the English statute, and 
 no others are included. 
 
 The Revised Statutes (2 Rev. St. [1st Ed.] p. 664, pt. 4, c. 1, tit. 
 2, § 27) declare "that every person, who, from a premeditated design, 
 etc., shall, first, cut out or disable the tongue; or, second, put out an 
 eye; or, third, slit the lip or destroy the nose; or, fourth, cut off or 
 disable any limb or member of another on purpose, upon conviction
 
 Tvo o^wi v^j2\(>X>JL> ^ 4jv>j A^r^^ 
 
 ASSAULT, BATTERY, AND MAYHEM. 313 
 
 thereof, shall be imprisoned in a state prison," etc. — following the 
 enumeration in the previous statutes. 2 
 
 The statute of Car. II has been followed, also, in the legislation by 
 Congress and of many of the states of the Union. See collection of 
 statutes in Wharton's Criminal Law, title "Mayhem." 
 
 We are of opinion that since that statute the crime of mayhem in- 
 cludes those injuries only which are therein enumerated, and that 
 the section of the Revised Statutes above cited was intended as a 
 statute definition of that crime. 
 
 It does not declare, in terms, that the acts therein enumerated con- 
 stitute maiming; but the section is contained in the article entitled 
 "Of Rape, Maiming, etc.," and the injuries are those which are gen- 
 erally known as maiming, and it includes all the cases which, since 
 the time of Lord Coke, have come within that designation. 
 
 In Reg. v. Sullivan, 1 C. & Marsh. 209, the prisoner was indicted 
 under St. 7 Wm. IV & 1 Vict. c. 85, which enacted that any one who 
 shall stab, cut, or wound any person, with intent to maim, disfigure, 
 or disable such person, or to do some other grievous bodily harm, 
 etc., shall be guilty of felony. 
 
 It appeared in the evidence that the prisoner with an ax struck the I 
 prosecutor on the head with the edge of it, and inflicted a cut upon it. / 
 
 Parke, B., in charging the jury, said: "There is no proof of an 
 intent to maim or disable, as the blow was aimed at the head of the 
 prosecutor. It would have been otherwise if it had been aimed at the 
 arm, to prevent his being able to use it. The question, therefore, will 
 be whether there was a wounding with intent either to murder the 
 prosecutor or to do him some grievous bodily harm." 
 
 This is a direct authority, and the opinion of an eminent judge, in 
 support of the views herein expressed. 
 
 It is to be observed, moreover, that the case did not arise under the 
 statute of Charles, which was repealed by St. 9 Geo. IV, c. 31 ; so 
 that it stood upon the construction of the words "to maim," in the \, 
 statute of Victoria. j( 
 
 We might here close the consideration of this case ; but we are of 
 opinion that the result would not be changed, although it should be 
 held, according to Lord Coke's definition, that breaking of the skull 
 is or might be a maiming. 
 
 The refusal of the court to charge that if the prisoner intended to 
 maim, and not to kill, the offense was murder in the second degree, 
 was proper, for the reason that there was no evidence upon which the 
 
 2 The present statute provides that "a person who willfully with intent to 
 commit a felony, or to injure, disfigure, or disable, inflicts upon the person 
 of another an injury, which (1) seriously disfigures his person by any mutila- 
 tion thereof ; or (2) destroys or disables any member or organ of his body ; or (3) 
 seriously diminishes his physical vigor by the injury of any member or organ; 
 is guilty of maiming, and is punishable by imprisonment for a term not ex- 
 ceeding fifteen years. The infliction of the injury is presumptive evidence of 
 the intent." Pen. Code, § 206.
 
 •> 
 
 14 ASSAULT, BATTERY, AND MAYHEM. (Cll. S 
 
 jury could have found that the prisoner intended to fracture the skull 
 of the deceased, as distinguished from an intent to kill him. 
 
 If the prisoner acted from premeditation he may have intended to 
 kill the deceased, or simply to do him a bodily injury; but that he 
 intended the particular injury of breaking the skull only cannot be 
 inferred. 
 
 If a blow aimed at an arm is by accident deflected from its course 
 and inflicts a mortal wound, in such or similar cases, an intent to maim 
 only might be found by the jury; and if, in this case, death had not 
 resulted, the prisoner might, perhaps (assuming that the fracture of the 
 head was a maiming), have been convicted of an intent to maim. 
 East's Pleas of the Crown, tit. "Mayhem," Vict. I, 400 ; Rex v. Cooke. 
 1 St. Tr. 54. 
 
 All concur. 
 
 Judgment affirmed. 8 
 
 8 Under the statutes in most states an intent to maim Is an essential ele- 
 ment of mayhem ; but it is generally held that this intent will be presumed 
 from the act of maiming, or if the means used were such as would naturally 
 result in maiming. Molette v. State, 49 Ala. 18 (1873) ; State v. Jones, 70 Iowa, 
 505, 30 N. W. 750 (188G) ; State v. Hair, 37 Minn. 351, 34 N. W. 893 (1887) ; 
 People v. Wright, 93 Cal. 501. 29 Pac. 240 (1S92). In other states it is held 
 that no specific intent to maim is necessary, but that it is sufficient if the act 
 were done willfully or maliciously. Davis v. State, 22 Tex. App. 45, 2 S. W. 
 630 (1886) ; Terrell v. State, 86 Tenn. 523, 8 S. W. 212 (1888).
 
 FALSE IMPRISONMENT AND KIDNAPPING. 315 
 
 CHAPTER IX. 
 FALSE IMPRISONMENT AND KIDNAPPING. 
 
 False imprisonment * * * is described to be every restraint of 
 a man's liberty under the custody of another, either in a goal, house, 
 stocks, or in the street, whenever it is done withou t a proper authority 
 * * * and the punishment for the offence is as in the case of other 
 misdemeanors. * * * 
 
 The most aggravated species of false imprisonment is the stealing 
 and carrying away, or secreting of any person, sometimes called kid- 
 napping, which is an offence at common law, punishable by fine, im- 
 prisonment and pillory. 
 
 1 East, P. C. c. IX. 
 
 SMITH v. STATE. 
 (Supreme Court of Tennessee, 1846. 7 Humph. 43.) 
 
 Green, J., delivered the opinion of the court. 1 
 
 The plaintiff in error was indicted for an assault and false imprison- 
 ment of Mark M. Rodgers. The court charged the jury "that, to make 
 out the offense as charged, no actual force was necessary, but that a 
 man might be assaulted by being beset by another ; and if the opposi- 
 tion to the prosecutor's going forward was such as a prudent man 
 would not risk, then the defendant would, in contemplation of law, 
 be guilty of false imprisonment. ' 
 
 This charge is correct in all its parts, and the facts were fairly left 
 to the jury. A verdict of guilty has been pronounced, and we do not 
 feel authorized to disturb it. The prosecutor and defendant disputed 
 about the ferriage defendant claimed. Smith insisted upon his de- 
 mand, and said he did not choose to sue every man that crossed at 
 his ferry. Although he did not take hold of the prosecutor, or offer N^ 
 violence to his person, yet his manner may have operated as a moral 
 force to detain the prosecutor. 
 
 And this appears the more probable, as after the affair was settled 
 the prosecutor inquired what defendant would have done if he had not 
 paid the ferriage demanded, to which the defendant replied that "he 
 would have put his carryall and horse back into the boat and taken 
 them across the river again." As this determination existed in his 
 
 i The opinion only is printed.
 
 316 FALSE IMPRISONMENT AND KIDNAPPING. (Ch. 9 
 
 mind, it doubtless was exhibited in the manner of the defendant, and 
 thus operated upon the fears of the prosecutor. 
 Affirm the judgment. 2 
 
 DESIGNY'S CASE. 
 
 (King's Bench, 16S3. T. Raymond, 474.) 
 
 Designy, a merchant trading to Jamaica, spirited away the eldest 
 son of one Turbet, who was a scholar at Merchant-Taylor's School, 
 and a hopeful youth. Turbet exhibited an information against De- 
 signy, and upon not guilty pleaded he was found guilty at nisi prius 
 before the Chief Justice Pemberton, the sitting after Trinity Term 
 last, and this last Michaelmas Term he appeared in court, and was 
 fined £500 and to lie in prison till he paid it. 8 
 
 2 In Bird v. Jones, 7 Q. B. 742 (1S54), the court, Denman, C. J., dissenting, 
 held that where the plaintiff attempting to pass in a particular direction, was 
 obstructed, and prevented from going in any direction but one, not being that 
 in which he had endeavored to pass, there was no imprisonment. 
 
 » Only so much of the case as relates to kidnapping is printed. 
 
 In Burns v. Commonwealth, 129 Pa. 138, 18 Atl. 756 (1889), it was held that 
 where, on a decree for divorce, the custody of the child was assigned to the 
 mother, and the father seized and carried it away, he was not guilty of kid- 
 napping, either at common law or under the statute. 
 
 Contra, under the statute of New Hampshire: State v. Farrar, 41 N. H. 
 53 (1860). 
 
 f f 6 
 
 v , J 
 
 H* 1
 
 
 CHAPTER X. 
 ABORTION. 
 
 MILLS v. COMMONWEALTH. 
 
 (Supreme Court of Pennsylvania, 1850. 13 Pa. 631.) 
 
 Error to the court of quarter sessions of Dauphin »county. 
 
 Mills had been tried for an attempt to procure abortion of a female, 
 tried at November sessions, 1849. Defendant was convicted and sen- 
 tenced to undergo punishment in the Dauphin county prison by sepa- 
 rate confinement at labor for and during the term of one year, to com- 
 mence and be computed from the expiration of the sentence on the 
 indictment for attempting to procure abortion of another female, etc. 
 
 Coulter, J. 1 The error assigned is that the indictment charges 
 the defendant, with intent to cause and procure the miscarriage and 
 abortion of the said Mary Elizabeth Lutz, instead of charging the 
 intent to cause and produce the miscarriage and abortion of the child. 
 But it is a misconception of the learned counsel that no abortion can 
 be predicated of the act of untimely birth by foul means. 
 
 Miscarriage, both in law and philology, means the bringing forth 
 the foetus before it is perfectly formed and capable of living, and is 
 rightfully predicated of the woman, because it refers to the act of 
 premature delivery. The word "abortion" is synonymous and equiva- 
 lent to "miscarriage" in its primary meaning. It has a secondary 
 meaning, in which it is used to denote the offspring. But it was not 
 used in that sense here, and ought not to have been. It is a flagrant 
 crime at common law to attempt to procure the miscarriage or abor- 
 tion of the woman, because it interferes v, ' h or violates the mysteries 
 of nature in that process by which the human race is propagated and 
 continued. It is a crime against natuyre, which obstructs the fountain 
 of life, and therefore it is punished. jpThe next error assigned is that 
 it ought to have been charged in the count that the woman had become 
 quick. But, although it has been so held in Massachusetts and some 
 other states, it is not, I apprehend, the law in Pennsylvania, and never 
 ought to have been the law anywhere. It is not the murder of a living 
 child which constitutes the offense, but the destruction of gestation 
 by wicked means and against nature. The moment the womb is in- 
 stinct with embryo life, and gestation has begun, the crime may be 
 perpetrated. The allegation in this indictment was therefore suffi- 
 cient, to wit: "That she was then and there pregnant and big with 
 
 1 Part of this case is omitted.
 
 318 ABORTION. (Ch. 10 
 
 child." By the well-settled and established doctrine of the common 
 law, the civil rights of an infant in ventre sa mere are fully protected 
 at all periods after conception. 3 Coke's Institutes. A count charging 
 a wicked intent to procure miscarriage of a woman, "then and there 
 being pregnant," by administering potions, etc., was held good on 
 demurrer by the Supreme Court of this state. Mss. Reps. January, 
 1816 ; Whart. Crim. Law, 308. There was therefore a crime at com- 
 mon law sufficiently set forth and charged in the indictment. 
 
 But, although we see no error in the record, the sentence must be 
 reformed on account of certain proceedings in this court and dehors 
 this record. 
 
 Judgment affirmed as modified. 2 
 
 2 Accord: State v. Slagle, 83 N. C. 630 (1880). Contra: Commonwealth v. 
 Parker, 9 Mete. 263, 43 Am. Dec. 396 (1S45) ; State v. Cooper, 22 N. J. Law, 52, 
 51 Am. Dec. 248 (1849).
 
 EAI'H. 310 
 
 CHAPTER XI. 
 RAPE. 
 
 There is amongst other appeals a certain appeal, which is called 
 concerning the rape of virgins, and the rape of a virgin is a certain 
 crime, which a woman charges against a man, by whom she says 
 that she has been violently overpowered against the peace of the lord 
 the king, which crime, if it be proved, there follows a penalty, namely 
 the loss of members, that there shall be member for member, because 
 when a virgin is deflowered, she loses a member and therefore the 
 deflowerer should be punished in that member with which he has of- 
 fended, let him therefore lose his eyes, on account of his looking at 
 the beauty, for which he coveted possession of the virgin, and let him 
 lose his testicles, which brought on the lust of ravishment. But this 
 penalty does not follow in the case of every female, although she should 
 be overpowered by violence. Nevertheless, another severe and still 
 more severe penalty follows, according as she is a married woman or 
 a widow living honestly, a woman of saintly character, or some other 
 kind of matron. Likewise a lawful concubine or another making her 
 livelihood without any discrimination of persons, all of whom the 
 king ought to protect for the sake of his own peace, but there will not 
 be in each case a like punishment. Formerly the deflowerers of vir- 
 gins and of chastity were hanged, and their abettors, since such per- 
 sons were not clear of the crime of homicide, and chiefly since vir- 
 ginity and chastity cannot be restored; but in modern times it is 
 differently observed, that for the defilement of a virgin members are 
 lost, as above said, and concerning others other grave corporal pun- 
 ishment follows, but nevertheless without the loss of life or members. 1 
 
 Bracton, f. 147. 
 
 REX v. W. D. 
 (King's Bench, 1570. Dyer, 304.) 
 
 One W. D. was arraigned in B. R. upon an indictment of rape on 
 a girl or damsel of seven years of age, and no more; s. that he fel- 
 oniously ravished and carnally knew her. And he pleaded not guilty. 
 And by good evidence of divers women, matrons, he was found guilty. 
 But the court doubted of rape in so tender a child. But if she had 
 been nine years and more, it would have been otherwise. 
 
 i St. Westm. I (1275) fixed the punishment on conviction at two years im- 
 prisonment and ransom at the king's pleasure. 
 
 St. Westm. II (1285) provided the punishment of "life and member."
 
 
 -Y 
 
 it 
 
 I 
 
 520 
 
 RAPE. 
 
 (Ch. 11 
 
 "For plain declaration of law, be it enacted, that if any person shall 
 unlawfully and carnally know and abuse any woman-child under the 
 age of ten years, every such unlawful and carnal knowledge shall be 
 felony, and the offender thereof, being duly convicted, shall suffer as 
 a felon without allowance of clergy." x 
 
 St. 18 Eliz. c. 7, § 4. 
 
 REGINALD'S CASE. 
 (Warwickshire Eyre, 3221. Select Pleas of the Crown [Sel. Soc] PI. 166.) 
 
 Margery, daughter of Aelfric, appeals Reginald, son of Aunfrey of 
 Coventry, for that in the king's peace on the vigil of St. Paul he 
 raped her. * * * The jurors say that he is not guilty of rape, be- 
 cause a long time before this he had her of her own free will, and 
 again two years afterward in the house of her father, and they say 
 ihat no cry was raised. And so it is considered that he go thence quit; 
 and she be in mercy for her false appeal. Let her be in custody. 
 
 > 
 
 DON MORAN v. PEOPLE. 
 
 (Supreme Court of Michigan, 1872. 25 Mich. 356, 12 Am. Rep. 2S3.) 
 
 Christiancy, C. J. 2 The court charged the jury as follows: 
 "If you find that the defendant represented to the complaining wit- 
 ness that, as a part of his medical treatment, it was necessary for her 
 to have carnal connection with him, that such representations were 
 false and fraudulent, that she believed it, and, relying upon it, con- 
 sented to the solicitations of the defendant, and had connection with 
 him, and that such representations were made for the purpose of in- 
 ducing her to give such consent, and that without it she would not 
 have yielded, the defendant is guilty of the crime charged against 
 him." 
 
 It will be noticed that this charge leaves out and wholly ignores all 
 idea of force as a necessary element of the crime charged ; and the 
 jury were, in effect, told that the defendant might be found guilty of 
 the rape, though he neither used, nor threatened to use, any force 
 whatever in case of her refusal, and though she might have assented 
 
 iTbe presenl Btatute (St. 48 & 49 Vict. c. <•>'.» makes unlawful and carnal 
 kimv of ;i girl under L3 yean felony, and between L8 and 16 years a 
 
 lemeanor. similar statutes are iii force in tins country. Under these stat- 
 penetratlon la accessary. People v. Howard, 1 1". Cal. .''-it;, to Pac. L116 
 . L904) : stat.' v. ii. iii. iii, I'm; mo. 463, 17 s. w. 700 (1891) ; Hardtke v. stale, i;t 
 \vk r.r.2. .".<» x. W. i--'< (1886). The consenl of the female is, however, Imma- 
 terial. Bee Oarothers v. State, 75 Ark. 574, SS S. W. 5S5 (11)05); State v. Day, 
 L88 Mo. 860, 87 S. W. 468 (1906). 
 * Pari of this ca »e is omitted.
 
 Y^vt [fA fc 
 
 RAPE. 321 
 
 without any constraint produced by the fear or apprehension of force, 
 or any dangerous or serious consequences to herself if she refused or 
 resisted. 
 
 This feature of the charge is assigned as error, and presents the 
 only question raised in the case by the plaintiff in error. 
 
 The definition of rape, as generally given in the English books, is 
 that "rape is the unlawful carnal knowledge, by a man of a woman, 
 forcibly (or by force), and against her will." 3 Coke's Inst. (Thomas' 
 Ed.) 549; 1 Hale, P. C. 628; Hawkins, P. C. (Cur. Ed.) 122; 4 
 Bl. Com. 210; 1 Russ. on Cr. (Greenl. Ed.) 675. This definition de- 
 pended, perhaps, partly upon the common law, but mainly upon two 
 early and rather loosely worded English statutes, one of which (St. 
 Westm. II, c. 34) expressly made force an element in the crime, if 
 the party were attainted at the king's suit (though not when the pro- 
 ceeding was by appeal), and the other (St. Westm. I, c. 13) which 
 did not require force as an element, except as it might be inferred 
 from the word, "ravished." See 2 Bish. Cr. L. §§ 1067 to 1069, where 
 the substance of these statutes is given. And, as remarked by Mr. 
 Bishop (2 Bish. Cr. L. § 1073), the more correct definition to be 
 gathered from these statutes would have been: "Rape is the unlaw- 
 ful carnal knowledge by a man of a woman, by force, when she does 
 not consent." The difference between the two definitions, however, 
 would seem to be important only in cases where the female with whom 
 the connection is had may be said to have no will, as in the case of an 
 idiot, or insane person, or one in a state of unconsciousness, in which 
 cases, if anywhere, the force necessary to accomplish the act itself 
 without resistance could possibly be held to constitute the force con- 
 templated by the definition of the offense. See Rex v. Ryan, 2 Cox 
 C. C. 115; Reg. v. Fletcher, Bell, C. C. 63; Reg. v. Camplin, 1 Den. 
 C. C. 89. 2 But this particular class of cases has no special bearing 
 upon the case now before us (and we do not discuss it) ; nor are we 
 embarrassed by any uncertainty in the definition of the offense. 
 
 Our statute has adopted substantially the definition first above given 
 from the English authorities. Section 5730, Comp. Laws 1857, de- 
 clares: "If any person shall ravish and carnally know any female of 
 the age of ten years or more, by force and against her will, * * * 
 he shall be punished," etc. 
 
 In the interpretation of this statute, it is clear that the term "by 
 force" must not be wholly rejected or ignored, but that some effect 
 must be given to it, and the language of the provision certainlv re- 
 quires something more to be shown than if these words had been 
 
 2 It is generally so held. See, intercourse with imbecile, Reg. v. Fletcher, 
 8 Cox, C. G, 131 (1859); State v. Tarr, 28 Iowa, 397 (1SG9) ; State v. Atlierton, 
 50 Iowa. 189, 32 Am. Rep. 134 (1878); State v. Williams, 149 Mo. 490, 51 S. 
 W. 88 (1S99); with woman asleep, Payne v. State, 40 Tex. Cr. R. 202, 49 S. 
 W. 604, 70 Am. St. Rep. 712 (1899) ; State v. Welch. 391 Mo. 179, 89 S. W. 945 
 (1905) ; with drunken woman, Commonwealth v. Burke, 105 Mass. 376. 7 Am. 
 Rep. 531 (1870). 
 
 Mik.Cb.L.— 21
 
 322 rape. (Ch. 11 
 
 omitted; and it is equally clear that if that particular kind and amount 
 of force only is required which is always essential to the act of sexual 
 connection itself, when performed with the assent of the woman, then 
 no effect whatever is given to the term "by force," but the interpre- 
 tation and the effect of the statute will be precisely the same as if these 
 words were not contained in it. This interpretation, therefore, is not 
 permissible. Some effect must be given to the words ; and such has 
 been the almost, if not entirely, uniform course of decision, both in 
 England and in this country, where the definition of the offense is 
 substantially the same as that given by our statute, when the charge 
 has been for the actual commission of the rape upon a female of the 
 age of proper discretion, of sound mind, and in full possession of her 
 faculties, however fraudulent the means, or false the pretenses, by 
 which her consent was procured. I have not been able to find a single 
 well-authenticated case, where the question was directly raised, in 
 which it has been directly decided the other way. The anonymous 
 case cited in the note to 1 Wheeler's Cr. Cases, 381, and referred to 
 by .Air. Wharton (Cr. Law, § 1144) and by Mr. Bishop (2 Cr. Law, 
 § 10S0), to the effect that force is not necessary in the commission 
 of rape, but that stratagem may supply its place, is stated as a mere 
 rumor of a decision made at Albany by Chief Justice Thompson, and, 
 as very properly remarked by the court in Walter v. People, 50 Barb. 
 (N. Y.) 144, "loose statements of this kind are entitled to no con- 
 sideration whatever." In State v. Shepard, 7 Conn. 54, the woman 
 was asleep, and did not discover the fact until defendant had violated 
 her person, and her first impression was that it was her husband. As 
 soon as she awoke and became sensible of the situation, he sprang 
 from the bed. The charge was for an assault with intent to com- 
 mit a rape. The prisoner's counsel contended that, if there was any 
 carnal knowledge obtained, it was a rape, and the prisoner could not 
 be convicted of the mere assault with intent, etc., as the less offense 
 was merged in the greater. The only question discussed was whether 
 proof of a rape would sustain an indictment for an attempt to commit 
 it; and, as very properly remarked by the counsel for plaintiff in 
 error in the case before us, the counsel for the prisoner in that case 
 overlooked a good defense in the attempt to maintain a frivolous one. 
 The case of Regina v. Stanton, 1 C. & K. 415, has been sometimes 
 cited as sustaining nearly the same doctrine as that cited from the 
 note to Wheeler's Cr. Cases. But it was the case of an indictment 
 for an assault with intent to commit a rape, where the prisoner, a 
 physician, had obtained access to the person of the woman under pre- 
 tense of administering an injection, and commenced to have carnal 
 connection with her, when she, discovering it, got up and ran out of 
 the room. This was clearly an assault, ami the only question was 
 ther the intent existed as charged. As it did not appear that the 
 Oner had intended to use force in case of resistance, it was, of 
 course, but an assault only, and was so held by the court; but when
 
 RAPE. 323 
 
 the court say that, if that intent had appeared, it would have consti- 
 tuted the completed offense of rape, they express an opinion upon a 
 question not in the case. This is not the only case in which it seems 
 to have been obscurely shadowed forth that, when the defendant has 
 succeeded in obtaining the connection without force, actual or threat- 
 ened, and without resistance, by falsely personating the husband, the 
 mere intent to use force, had it become necessary to accomplish his 
 purpose, would satisfy the requirement of force involved in the defini- 
 tion of rape. See Rex v. Jackson, Russ. & Ry. C. C. 487. And a 
 similar idea seems to have been obscurely intimated in some American 
 cases. But, with all deference, I must be allowed to suggest whether 
 it has not resulted from confounding two distinct offenses — the com- 
 pleted offense of rape, and the attempt, or an assault with the intent, 
 to commit it. And I am compelled to say I am wholly unable to dis- 
 cover how the intent to resort to force in such cases, when it is not 
 in fact either resorted to or in any manner threatened, can be at all 
 material upon the question whether a rape has been committed, or 
 how such intent, never brought to the notice of the woman by word 
 or act, can satisfy the requirement of force in the legal definition of 
 the offense; and such, I think, is the prevailing view of the English 
 courts (see, among other cases, Reg. v. Saunders, 8 C. & P. 265; Reg. 
 v. Williams, Id. 286; Reg. v. Clarke, Dears. 397; Reg. v. Fletcher, 
 Law Reports, 1 Cr. Cases Reserved, 39, 14 Law T. [N. S.] 573, 12 
 Jur. [N. S.] 505), as well as of the American courts, though such 
 intent would, of course, constitute a necessary and controlling ele- 
 ment in a charge for an assault with intent to commit a rape, though 
 in no way communicated to the intended victim. 
 
 But if we admit that the intent to resort to force, if required to 
 accomplish the criminal purpose, in a case like the present, would, 
 though never used or threatened, constitute the transaction a rape, 
 this would not sustain the charge in the present case, which did not 
 even require the existence of such intent. 
 
 The true rule as to force in cases of rape generally was recognized 
 by this court in People v. Valentine Cornwell (not Croswell v. People, 
 as printed in the Report) 13 Mich. 433, 87 Am. Dec. 774, where it 
 was said that "the essence of the crime is not the fact of intercourse, 
 but the injury and outrage to the feelings of the woman by means 
 of the carnal knowledge effected by force." And there being no 
 force used or threatened in that case, but strong grounds for believ- 
 ing that the woman was the soliciting party, the connection was prop- 
 erly held not to constitute rape, though the woman was not of sound 
 mind, and had no intelligent understanding at the time the act was 
 committed, but was in good physical health. In cases where the wo- 
 man is entirely insensible from idiocy, or from the effect of drugs 
 administered (though the point is not here involved), it may be en- 
 tirely right to hold a very slight degree of force sufficient; and that 
 amount of force which, in such cases, would always be necessary, be-
 
 324 R A r E . (Ch. 11 
 
 yond what would be required with a consenting party, might, perhaps, 
 properly be held, as it sometimes has been held, sufficient to make the 
 transaction a rape, as suggested by my Brother Cooley in People v. 
 Cornwell, ubi supra. 
 
 And when drugs are administered, or procured to be administered, 
 by the criminal, for the purpose of taking away or lessening the 
 power of resistance, and having that effect, there may be no ground 
 for distinction between the force thus exerted by him through the 
 agency of the drugs and that directly exerted by his hand and for the 
 same purpose. 
 
 The only question really involved in People v. Cornwell, above 
 cited, was whether, under the circumstances of that case, the defend- 
 ant could be held guilty without proof of force in any form, actual, 
 or threatened, and it was, I think, properly held by us that he could not. 
 
 If the statute, or the definition of rape, did not contain the words 
 "by force," or "forcibly," doubtless a consent procured by such fraud 
 as that referred to might be treated as no consent; but the idea of 
 force cannot be thus left out and ignored, nor can such fraud be al- 
 lowed to supply its place, though it would doubtless supply and satisfy 
 all the other terms of the definition, and, so far as the intimation in 
 question is to be understood as going further and dispensing with 
 all idea of force, it must be understood as an intimation of the court 
 of what, in their opinion, the law ought to be, rather than what it is. 
 And, upon abstract principles of right and wrong, a sexual connection 
 obtained by falsely and fraudulently personating the husband of a 
 woman, or by a physician fraudulently inducing a female patient to 
 believe such connection essential to a course of medical treatment, 
 must be considered nearly, if not quite, as criminal and prejudicial to 
 society as when obta'ined by force or any apprehension of violence ; 
 and it might, and in my opinion would, be judicious for the Legislature 
 to make some provision for punishment in cases of this kind. But it 
 is not for the judiciary to legislate, by straining the existing criminal 
 law to bring such cases within it. 8 
 
 For the reasons given, I think the judgment of the recorder's 
 court should be reversed, and a new trial awarded. 
 
 And, with reference to a new trial, it is proper for the guidance 
 of the recorder's court to consider the nature of the evidence set 
 forth in the record, and which will probably appear upon the new 
 trial, and to determine what charge the state of facts would war- 
 rant, or whether there was anything in the evidence which would 
 authorize the jury to find that the carnal connection was obtained 
 "by force and against the will" of the party injured. 
 
 »Cnrn:ii Intercourse < > i > t : i i i > « ■ < l by personating tho husband has been made 
 rape i>v statute In England and li some states. Bee St 48 & 49 Vict. c. 69, 
 ? 1; Mooney v. State, 29 Tex. App. 257, LB 8. W. 724 (1890); State v Williams, 
 
 \J [28 N. 0. 578, 87 s. i:. 952 (1901). The Baine result has l n arrived at, with- 
 
 <, oul pedal enactment, by the Irish Courl for Crown Cases Reserved, lu Reg. 
 
 v. Dee, 15 Cox, G. C 579 (1884).
 
 RAPE. 32o 
 
 We think it is well and properly settled that the term "by force" 
 docs not necessarily imply the positive exertion of actual physical 
 force in the act of compelling submission of the female to the sexual 
 connection, but that force or violence threatened as the result of 
 noncompliance, and for the purpose of preventing resistance or ex- 
 torting consent, if it be such as to create a real apprehension of 
 dangerous consequences, or great bodily harm, or such as in any 
 manner to overpower the mind of the victim, so that she dare not 
 resist, is, and upon all sound principles must be, regarded, for this 
 purpose, as in all respects equivalent to force actually exerted for 
 the same purpose. See Reg. v. Hallett, 9 C. & P. 748; Reg. v. 
 Day, Id. 722; Wright v. State, 4 Humph. (Tenn.) 194; Pleasant 
 v. State, 8 Eng. 360. And see Strang v. People, 24 Mich. 1. Nor, 
 as appears by the case last cited, need the threats be of force to be 
 used in accomplishing the act, as in that case the principal threat 
 was that, if she refused, he would take her away where she could 
 never get back. In fact, we think the terms of the statute in refer- 
 ence to force are satisfied by any sexual intercourse to which the 
 woman may have been induced to yield only through the constraint 
 produced by the fear of great bodily harm, or danger to life or limb, 
 which the prisoner has, for the purpose of overcoming her will, 
 caused her to apprehend as the consequence of her refusal, and 
 without which she would not have yielded. _ 
 
 It remains only to apply these principles to the present case. 
 
 Considering the way and the purpose for which the girl had been 
 placed by her father under the care and treatment of the defend- 
 ant as her physician, the evidence had a tendency to show, and the 
 jury might properly have found, that the girl was induced by the 
 defendant to submit to the sexual intercourse with him from the 
 fear and under the apprehension, falsely and fraudulently inspired 
 by the defendant for the purpose of overcoming her opposition, that, 
 if she did not yield to such intercourse, he intended to, and would, 
 use instruments "for the purpose of enlarging the parts," and that 
 such operation with instruments would be likely to kill her. And 
 if the jury should so find — with or without the other facts submitted 
 to them by the charge given — and that she would not otherwise 
 have yielded, it would be their duty to find the defendant guilty of 
 the crime charged. 
 
 The judgment must be reversed, and a new trial awarded. 
 
 Campbell, J., concurred. 
 
 Coolly, J. As my Brethren are agreed in this case, I concur in 
 the result, while not fully assenting to all that is expressed in the 
 opinion. 
 
 Graves, J., did not sit in this case.* 
 
 * Compare Pomeroy v. State, 94 Ind. 96 (1S83).
 
 326 rape. (Ch. 11 
 
 REGINA v. FLATTERY. 
 
 (Court for Crown Cases Reserved, 1S77. 2 Q. B. Div. 410.) 
 
 Kelly, C. B. 1 I think this conviction ought to be affirmed. Mr. 
 Lockwood has ably argued that there was consent on the part of the 
 prosecutrix, and therefore no rape. But, on the case as stated, it is 
 plain that the girl only submitted to the plaintiff's touching her person 
 in consequence of the fraud and false pretenses of the prisoner, and 
 that the only thing she consented to was the performance of a surgical 
 operation. Up to the time when she and the prisoner went into the 
 room alone, it is clearly found on the case that the only thing con- 
 templated either by the girl or her mother was the operation which 
 had been advised. Sexual connection was never thought of by either 
 
 i The statement of facts and the concurring opinions of Mellor, Denman and 
 Field. JJ., and Huddleston, B., are omitted. 
 
 "The request in substance is as follows: That, inasmuch as nonconsent is 
 to be proved by the resistance made, therefore, if the resistance falls short 
 of the ex t rem est limit that could have been made, the deficiency necessarily 
 shows consent, and should be so charged as matter of law. The fallacy lies 
 in the assumption that the deficiency in such cases necessarily shows consent. 
 If the failure to make extreme resistance was intentional, in order that the 
 assailant might accomplish his purpose, it would show consent; but without 
 such intent it shows nothing important whatsoever. The whole question is 
 one of fact, and the court committed no error in so leaving it to the jury" 
 Park, C. J., in State v. Shields, 45 Conn. 250 (1S77). 
 
 At common law a boy under 14 years of age is conclusively presumed to be 
 physically incapable of committing rape. Reg. v. Waite, L. R. 2 Q. B. 600 
 (1892) ; State v. Handy, 4 Har. (Del.) 560 (1845) ; State v. Pugh, 52 N. C. 61 
 (1859) ; Foster v. Commonwealth. 96 Ya. 306, 31 S. E. 503, 42 L. R, A. 5S9, 70 
 Am. St. Rep. 846 (1898) ; Chism v. State, 42 Fla. 232, 28 South. 399 (1900). In 
 some jurisdictions it is held that the presumption of incapacity may be re- 
 butted. People v. Randolph, 2 Parker, Cr. R. (N. Y.) 174 (1S55) ; Hiltabiddle v. 
 State, 35 Ohio St. 52, 35 Am. Rep. 592 (1S7S) ; Wagoner v. State, 5 Lea (Tenn.) 
 352, 40 Am. Rep. 36 (1880) : Heilman v. Commonwealth. S4 Ky. 457, 1 S. W. 
 731, 4 Am. St Rep. 207 (1886) : Gordon v. State, 93 Ga. 531, 21 S. E. 54. 44 Am. 
 S1 Rep. L89 (1893). In Louisiana there is no presumption as to physical ca- 
 pacity. State v. Jones, 39 La. Ann. 935, 3 South. 57 (1887). 
 
 On an Indictment under a statute providing: "If any person shall unlaw- 
 fully and carnally know any woman child under the age of fourteen years, 
 every such unlawful and carnal knowledge shall be felony, and the offender 
 thereof shall suffer as for rape" — It was held that no presumption of incapacity 
 to commit the offense arose from the fact that the defendant was under 14 
 years of age. state v . Coleman, 54 S. C. 162, 31 S. B. 866 (1899). Cf. McKinny 
 v. state. 29 Fla. 565, 10 South. 732, 30 Am. St. Rep. 140 (1892). 
 
 Penetration alone, force and nonconsenl being proven, is sufficient both by 
 the early common law (see l Blast, P. 0. 436; Pennsylvania v. Sullivan, Add. 
 [Pa.] L43 [1793]; Comstock v. state, 11 Neb. 205, 15 N. W. 855 [1883]; con- 
 tra, Blackburn v. State, '- , l- , Ohio St. 102 [1871]), and by statute In England 
 and most states (see 24 & 25 Vict c. 100, § 63; Waller v. state, 40 .Ma. 825 
 [18671; Bills V. State. •_•;, fla. 702, 6 South. 768 [1889]; Taylor v. Stale. Ill 
 ind. 27'.). 12 N. B. 100 [1887]; state y, Hargrave, 65 N. 0. 466 [1S71J; People 
 v. Crowley, 102 N. V. 234, 6 N. E. 884 [1886]. 
 
 The crime of rape is not committed if the woman consent after the assault, 
 hut before penetration. Reg. v. Ballet, 9 0. ft P. 748 (1841); Smith v. state, 
 
 ■ Ohio st. 466, 80 Am Dec 856 (1861); state v. Cunningham, 100 Mo. 382, 
 12 s \V. 876 (1899). Otherwise, If she consent only after penetration. State 
 v. Welch, L9i Mo, L79, 89 8. W. 945 (1905).
 
 RArE. 327 
 
 of them. And after she was in the room alone with the prisoner, 
 what the case expressly states is that the girl made but feeble re- 
 sistance, believing that she was being treated medically, and that what 
 was taking place was a surgical operation. In other words, she sub- 
 mitted to a surgical operation, and nothing else. It is said, however, 
 that having regard to the age of the prosecutrix, she must have known 
 the nature of sexual connection. I know no ground in law for such 
 a proposition; and, even if she had such knowledge, she might sup- 
 pose that penetration was being effected with the hand or with an 
 instrument. The case is, therefore, not within the authority of those 
 cases which have decided — decisions which I regret — that, where a 
 man by fraud induces a woman to submit to sexual connection, it is 
 not rape. 
 
 Conviction affirmed. 
 
 STATE v. HAINES. 
 
 (Supreme Court of Louisiana, 1899. 51 La. Ann. 731, 25 South. 372, 44 L. R. 
 
 A. 837.) 
 
 Blanchard, J. The case stands thus : (1) Thibodeaux exonerated 
 from the charge by the verdict of not guilty as to him. (2) Haines 
 declared, by the verdict of guilty as to him, to have committed the 
 crime of rape upon Rose Moreaux. (3) Rose Moreaux was, at the 
 time of the act, the wife of Haines. We are constrained to hold that 
 this conviction cannot stand. The case as to Haines fell with the ac- 
 quittal of Thibodeaux. It would be different if Haines had forced 
 Thibodeaux by threats and violence, against his will and consent, to 
 have sexual intercourse with the wife, who, herself, through menace 
 and coercion exerted on the part of her husband, had been forced to 
 yield. In such case, the husband alone might well be found guilty of 
 the crime, and his unwilling instrument of its accomplishment ac- 
 quitted. 1 
 
 i Part of this case is omitted. 
 
 "We are aware of no case holding that the husband can be guilty of the 
 offense when he himself is the actual party to the intercourse." Davidson, P 
 J., in Frazier v. State (Tex. Cr. App.) 86 S. W. 754 (1905)
 
 328 homicide. (Ch. 12 
 
 CHAPTER XII. 
 HOMICIDE. 
 
 SECTION 1.— GENERAL PRINCIPLES. 
 I. The Several Kinds of Homicide. 
 
 Homicide is the killing of a man done by a man, for if it be done 
 by an ox, a dog, or other thing, it is not properly termed homicide. 
 For homicide is so termed from "homine" and "caedo," as it were the 
 slaying of a man. 
 
 Bracton, f. 120 b. 
 
 Homicide, properly so called, is either against a man's own life or 
 that of another. * * * 
 
 As to the first point, viz. : In what case a man shall be said to be 
 felo de se. * * * Our laws have always had such an abhorrence 
 of this crime, that not only he who kills himself with a deliberate and 
 direct purpose of so doing, but also in some cases he who maliciously 
 attempts to kill another, and in pursuance of such attempt unwilling- 
 ly kills himself, shall be adjudged in the eye of the law a felo de se. 
 
 1 Hawkins, P. C. c. 9. 
 
 Homicide against the life of another amounts to felony, or does 
 not. That which amounts not to felony is either justifiable, and caus- 
 es no forfeiture at all, or excusable, and causes the forfeiture of the 
 party's goods. 
 
 Of justifiable homicide I shall premise these general rules: 
 
 First It must be owing to some unavoidable necessity to which 
 the person who kills another must be reduced without any manner of 
 fault in himself. 
 
 Secondly. There must be no malice colored under pretense of ne- 
 cessity; for wherever a person who kills another acts in truth upon 
 malice, and takes occasion from the appearance of necessity, to exe- 
 cute his own private revenue, he is guilty of murder. * * * 
 
 Justifiable homicide is either of a public or of a private nature. 
 Justifiable homicide of a public nature is such as is occasioned by 
 the due execution or advancement of public justice. That of a private 
 nature is such as happens in the just defense of a man's person, house, 
 or goods. 
 
 [d. c. 10.
 
 Sec. 1) GENERAL PRINCIPLES. 329 
 
 Excusable homicide is either per infortuniam, or se defendenrlo. 
 * * * 
 
 Homicide per infortuniam, or by misadventure, is where a man in 
 doing a lawful act, without any intent of hurt, unfortunately chances 
 to kill another. * * * 
 
 Homicide se defendendo seems to be where one, who has no other 
 possible means of preserving his life from one who combats with him 
 on a sudden quarrel, or of defending his person from one who at- 
 tempts to beat him (especially if such attempt be made upon him in 
 his own house), kills the persons by whom he is reduced to such an 
 inevitable necessity. * * * 
 
 Thus far of each kind of excusable homicide distinctly considered 
 — and now I am to consider those properties wherein they both agree. 
 
 And first, it seems clear that neither of these homicides are felonies, 
 because they are not accompanied with a felonious intent, which is 
 necessary in every felony. 1 
 
 And from hence it seems plainly to follow, that they were never 
 punishable with loss of life; and the same also further appears from 
 the writ odio et atia, by virtue whereof, if any person committed for 
 killing another were found guilty of either of these homicides, and 
 no other crime, he might be bailed ; and indeed it seems to be against 
 natural justice to condemn a man to death for what is owing rather 
 to his misfortune than his fault. * * * 
 
 Thirdly, it is also agreed, that no one can excuse the killing another, 
 by setting forth in a special plea that he did it by misadventure, or 
 se defendendo, but that he must plead not guilty, and give the special 
 matter in evidence. And that whenever a person is found guilty of 
 such homicide * * * he shall be discharged out of prison upon 
 bail, and forfeit his goods, but that upon removing the record by cer- 
 tiorari into chancery, he shall have his pardon of course, without 
 staying for any warrant from the king to that purpose, as shall be 
 more fully shown in the second book. 
 
 Id. c. 11. 
 
 II. The Subject of Homicide. 
 
 If there be some one, who has struck a pregnant woman, or has 
 given her poison, whereby he has caused abortion, if the foetus be 
 already formed and animated, and particularly if it be animated, he 
 commits homicide. 
 
 Bracton, f. 120 b. 
 
 If a woman be quick with child and by a potion or otherwise killeth 
 it in her womb ; or if a man beat her, whereby the child dieth in her 
 
 i Roger of Stainton was arrested because in throwing a stone he by misad- 
 renture killed a girl. And it is testified that this was not by felony. And this 
 was shown to the king, and the king moved by pity pardoned him the death. 
 So let him be set free. See Sel. P. C. (Sel. Soc.) pi." 114 (1214).
 
 
 
 
 330 homicide. (Ch. 12 
 
 body, and she is delivered of a dead child, this is a great misprision, 
 and no murder; but if the child be born alive, and dieth of the po- 
 tion, battery or other cause, this is murder; 1 for in law it is accounted 
 a reasonable creature, in rerum natura when it is born alive. 2 And 
 the book in 1 Edw. Ill was never holden for law. And 3 Ass. p. 2, 
 is but a repetition of that case. And so horrible an offense should 
 not go unpunished * * * and herewith agreeth Fleta; and here- 
 in the law is grounded upon the law of God. * * * If a man 
 counsel a woman to kill the child within her womb, when it shall be 
 born, and after she is delivered of the child, she killeth it, the coun- 
 sellor is an accessory to the murder, and yet at the time of the com- 
 mandment, or counsel, no murder could be committed of the child 
 in utero matris ; the reason of which case proveth well the other case. 
 3 Coke, Inst. 50. 
 
 REX v. BRAIN. 
 (Oxford Assizes, 1S34. 6 Car. & P. 349.) 
 
 Murder. The prisoner was indicted for the murder of her male 
 bastard child. 
 
 It appeared that the prisoner had been delivered of a child at Sand- 
 ford Ferry, and that the body of the child was afterwards found in 
 the water, about 15 feet from the lock gate, near the ferry house; 
 but it was proved by two surgeons, Mr. Box and Mr. Hester, that 
 the child had never breathed. 
 
 Pa rk. T. (in sum ming up). A child must be actually wholly in 
 the world in a living state to be the subject of a charge of murder; 
 but if it has been wholly born, and is alive, it is not essential that it 
 should have breathed at the time it was killed, as many children are 
 born alive, and yet do not i reathe for some time after their birth. 
 But you must be satisfied that the child was wholly born into the world 
 at the "time it was killed, or you ought not to find the prisoner guilty 
 of murder. This is not only my opinion, but the law was so laid down 
 in a case as strong as this, by a very learned Judge (Mr. Justice Lit- 
 tle) at the Old Bailey. [His Lordship read the case of Rex v. 
 Poulton, 5 Car. & P. 329.] 
 
 Verdict — Not guilty of murder, but guilty of concealment. 
 
 1 Accord: Clarke v. State, 117 Ala. 1, 23 South. G71, G7 Am. St. Rep. 157 
 (1888). 
 
 Lord Coke cites the above quotation from Bracton as authority for this 
 
 statement; Bed qu. Blackstone Bays: "To kill a child In Its mother's womb 
 
 -w no murder, but a ^rail misprision." And in Sel. P. G. (Sel. Noe.) pi. 
 
 n appeal In the year 1202 for beating a woman so as to kill the child 
 
 "The conclusion is fairly deduclble from certain portions <»r the testimony 
 
 thai an atten.pt was made to kill the girl by the administration of cocaine 
 
 wn ile in Cincinnati, and thai this was done by the defendanl or at ins 
 
 ,,„,. D u1 thai she was aol thereby killed, it is to be remembered that,
 
 Seel) GENERAL PRINCIPLES. 331 
 
 III. The Act Causing Death. 
 
 Not only he who by a wound or blow, or by poisoning, strangling 
 or famishing, etc., directly causes another's death, but also in many 
 cases he who by wilfully and deliberately doing a thing which ap- 
 parently endangers another's life, thereby occasions his death, shall 
 be adjudged to kill him. 
 
 And such was the case of him who carried his sick father, against 
 his will, in a cold frosty season, from one town to another, by rea- 
 son whereof he died. Pult. 122. 
 
 Such also was the case of the harlot, who being delivered of a child, 
 left it in an orchard, covered only with leaves, in which condition it 
 was struck by a kite, and died thereof. Crom. 24. 
 
 And in some cases a man shall be said, in the judgment of the law, 
 to kill one who is in truth actually killed by another, or by himself; 
 as where one by duress or imprisonment compels a man to accuse 
 an innocent person, who on his evidence is condemned and executed ; 
 or where one incites a madman to kill himself or another ; or where 
 one lays poison with an intent to kill one man, which is afterwards 
 accidently taken by another, who dies thereof. Plowd. 474. Also 
 he who wilfully neglects to prevent a mischief, which he may and 
 ought to provide against, is, as some have said, in judgment of the 
 law, the actual cause of the damage which ensues; and, therefore 
 if a man have an ox or a horse, which he knows to be mischievous, 
 by being used to gore or strike at those who come near them, and do 
 not tie them up, but leave them to their liberty, and they afterwards 
 kill a man, according to some opinions, the owner may be indicted 
 as having himself feloniously killed him, and this is agreeable to the 
 Mosaical law. 
 
 However, it is agreed by all, such a person is certainly guilty of 
 a very gross misdemeanor. 
 
 Also it is agreed, that no person shall be adjudged by any act what- 
 ever to kill another who doth not die thereof within a year and a day 
 
 according to the testimony of Jackson, he did not see the girl in life after 
 Wednesday, and, according to Walling, he did not see her after that day ; 
 but the proof conduces to show that they were both with her Friday night, 
 when she was in the cab, and that they brought her over to Campbell county. 
 If she was then dead as might be supposed from her making no outcry, a 
 verdict of guilty could not have been rendered ; but if she was then alive, 
 though appearing to be dead, and by the cutting of her throat she was killed 
 while in Campbell county, then the jury might find a verdict of guilty, al- 
 though the cutting off of the head was merely tor the purpose of destroying the 
 chances for identification or for any other purpose. At least the instruction 
 does not authorize a verdict of conviction unless Jackson is shown to have 
 cut off the head of his victim in Campbell county, and while she was in fact 
 alive; and if he did this he was guilty of murder, though believing her al- 
 ready dead, if the act succeeded and was but a part of the felonious attempt 
 to kill her in Cincinnati." Hazelrigg, J., in Jackson v. Commonwealth, 100 
 Ky. 239, 38 S. W. 422, 1091, 66 Am. St. Rep. 336 (1S96).
 
 332 homicide. (Ch. 12 
 
 after; in the computation whereof, the whole day on which the hurt 
 was done shall be reckoned the first. 
 
 But if a person hurt by another die thereof within a year and a 
 day, it is no excuse for the other that he might have recovered if he 
 had not neglected to take care of himself. 
 
 1 Hawkins, P. C. c. 13. 
 
 GORE'S CASE. 
 
 (King's Bench, 1611. 9 Coke, 81.) 
 
 * 
 
 Before Fleming, Chief Justice, and Tanfield, Chief Baron, Justices 
 of Assize, this case happened in their Western circuit. Agnes, the 
 daughter of Roper, married one Gore. Gore fell sick. Roper, the 
 father, in good will to the said Gore, his son-in-law, went to one Dr- 
 Gray, a physician, for his advice, who made a receipt directed to one 
 Martin, his apothecary, for an electuary to be made, which the said 
 Martin did, and sent it to the said Gore. Agnes, the wife of Gore, 
 secretly mixed ratsbane with the electuary, to the intent therewith to 
 poison her husband, and afterwards, 18 Maii, she gave part of it to 
 her husband, who eat thereof and immediately became grievously 
 sick; the same day Roper, the father, eat of it, and immediately also 
 became sick, 19 Maii C. eat part of it and he likewise fell sick; but 
 they all recovered and yet are alive. The said Roper, observing the 
 operation of the said electuary, carried the said box with said electuary, 
 21 Maii, to the said Gray, the physician, and informed him of the said 
 accidents, who sent for the said Martin, the apothecary, and asked 
 him if he had made the said electuary according to his direction, who 
 answered that he had, in all things but in one, which he had not in 
 his shop, but put in another thing of the same operation, which the 
 said Doctor Gray well approved of, whereupon Martin, the apothe- 
 cary, said, "To the end you may know that I have not put anything 
 in it, which I myself will not eat, I will here before you eat part of 
 it," and thereupon Martin took the box, and with his knife mingled 
 and stirred together the said electuary, and took and eat part of it, 
 of which he died the 22d day of May following. The question was, 
 if upon all this matter Agnes had committed murder. And this case 
 was delivered in writing to all the Judges of England to have their 
 opinions in the case. And the doubt was, because Martin himself 
 of his own head, without incitation or procurement of any, not only 
 it of the said electuary, hut he himself mingled and stirred it to- 
 
 ther, which mixing and stirring had so incorporated the poison with 
 the electuary, that it made the operation more forcible than the mixture 
 which the said Agnes had made; for, notwithstanding the mixture 
 which Agnes had made, those who eat of it were sick, but yet alive, 
 but the mixture which Martin has made by mingling and stirring
 
 Sec. 1) GENERAL PRINCIPLES. 333 
 
 it with his knife, made the operation of the poison more forcible, and 
 was the occasion of his death. And if this circumstance would make 
 a difference between this case and Saunders' Case in Plow. Com. 
 474, was the question. 
 
 And it was resolved by all the Judges that the said Agnes was 
 guilty of the murder of the said Martin, for the law conjoins the mur- 
 derous intention of Agnes in putting the poison into the electuary to 
 kill her husband, with the event which thence ensued ; sc. the death 
 of the said Martin ; for the putting of the poison into the electuary 
 is the occasion and cause ; and the poisoning and death of the said 
 Martin is the event, quia eventus est qui ex causa sequitur, et di- 
 cuntur eventus quia ex causis eveniunt, and the stirring of the electu- 
 ary by Martin with his knife without the putting in of the poison by 
 Agnes could not have been the cause of his death. 
 
 And it was also resolved, that if A. puts poison into a pot of wine, 
 etc., to the intent to poison B. and sets it in a place where he supposes 
 B. will come and drink of it, and by accident C. (to whom A. has no 
 malice) comes, and of his own head takes the pot and drinks of it, 
 of which poison he dies, it is murder in A., for the law couples the 
 event with the intention, and the end with the cause; and in the same 
 case if C, thinking that sugar is in the wine, stirs it with a knife, 
 and drinks of it, it will not alter the case, for the king by reason of 
 the putting in of the poison with a murderous intent, has lost a sub- 
 ject; and therefore in law he who so put in the poison with an ill 
 and felonious intent, shall answer for it. But if one prepare ratsbane 
 to kill rats and mice, or other vermin, and leaves it in certain places 
 to that purpose, and with no ill intent, and one finding it eats of it, 
 it is not felony, because he who prepares the poison has no ill or 
 felonious intent; but when one prepares poison with a felonious in- 
 tent to kill any reasonable creature, whatsoever reasonable creature 
 is thereby killed, he who has the ill and felonious intent shall be 
 punished for it, for he is as great an offender, as if his intent against 
 the other person had taken effect. And if the law should not be such, 
 this horrible and heinous offense would be unpunished, which would 
 be mischievous and a great defect in the law. 
 
 REX v. REW. 
 
 (Newgate Sessions, 1662. Kelyng, 26.) 
 
 Edward Rew was indicted for killing Nathaniel Rew, his brother, 
 and upon the evidence it was resolved that if one gives wounds to 
 another, who neglects the cure of them, or is disorderly, and doth not 
 keep that rule which a person wounded should do, yet if he die it is 
 murder or manslaughter, according as the case is in the person who
 
 ■ 
 
 334 homicide. (Ch. 12 
 
 gave the wounds, because if the wounds had not been, the man had 
 not died ; and therefore neglect or disorder in the person who re- 
 ceived the wounds shall not excuse the person who gave them. 1 
 
 REX v. HUGGINS. 
 (King's Bench, 1730. 2 Ld. Raym. 1574.) 
 
 This was a special verdict found at the Old Bailey on an indict- 
 ment of murder against James Barnes and John Huggins. The 
 jury found that Huggins was warden of the prison of the Fleet, that 
 Thomas Gibbons was deputy of Huggins and that Barnes was the 
 servant of Gibbons and had the care of the prisoners committed to 
 the said prison. They further found that Edward Arne having been 
 committed to the said prison, was, without his consent, placed by 
 said Barnes for forty days in a room of the prison newly built, the 
 walls of which were very damp. That said room was situate over 
 the common sewer of the prison and near the place where the refuse 
 of the prison was usually put, by reason whereof the room was 
 very unwholesome and dangerous to the life of any person detained 
 therein. 
 
 That the said Arne was, without his consent, detained by the 
 said Barnes in the said room for forty days without fire, or chamber 
 pot, close-stool or any such utensil, all of which the said Barnes well 
 knew ; and that by the said duress the said Arne languished and died. 2 
 
 The record, the indictment and special verdict being removed 
 into the King's Bench and argued before all the twelve judges, 
 
 The Lord Chief Justice delivered the opinion of the judges. 
 
 In this case two questions have been made: (1) What crime 
 the facts found upon Barnes in the special verdict will amount to? 
 (2) Whether the prisoner at the bar is found guilty of the same 
 offence with Barnes? 
 
 1. As to the first question, it is very plain, that the facts found 
 upon Barnes do amount to murder in him. Murder may be com- 
 mitted without any stroke. The law has not confined the offence 
 to any particular circumstances or manner of killing; but there are 
 as many ways to commit murder, as there are to destroy a man, 
 provided the act be done with malice, either express or implied. Hale 
 J'. C, 46, 3 Inst. 52. 
 
 i Accord: Refusing to allow amputation, Hopkins y. u. S., 4 App. D. C. 
 130 (1804); the refusal nol being such gross neglect as t<» bring the case 
 within articles 852, 858, <>r the Penal Code, Franklin v. State, 41 Tex. Or. It. 21, 
 :,i s. \v. 951 (1899). 
 
 2 I'urt of this case is omitted.
 
 Sec. 1) GENERAL PRINCIPLES. 335 
 
 71) 
 
 REGINA v. TOWERS. 
 
 (Court of Criminal Appeals, 1S74. 12 Cox, Cr. Cas. 580.) 
 
 Wilson Towers was charged with the manslaughter of John 
 Hetherington, at Castlesowerby, on the 6th of September, 1873. 
 
 The prisoner, who had been drinking on the 4th of August, went 
 into a public house at New Yeat, near Castlesowerby, kept by the 
 mother of the deceased, and there saw a girl called Fanny Glaister 
 nursing the deceased child, who was then only about four months 
 and a half old, having been born on the 20th of March, 1873. The 
 prisoner, who appeared to have had some grievance against Fanny 
 Glaister about her hitting one of his children, immediately on entering 
 the public house went straight up to where she was, took her by the 
 hair of the head, and hit her. She screamed loudly, and this so 
 frightened the infant that it became black in the face, and ever since 
 that day, up to its death, it had convulsions and was ailing generally 
 from a shock to the nervous system. The child was previously a 
 very healthy one. 1 
 
 Denman, J., in summing up, said: It was a very unusual case, 
 and it was very unusual indeed to find a case in which they got prac- 
 tically no assistance from previously decided cases. There was no 
 offense known to our law so various in its circumstances, and so 
 various in the considerations applicable to it, as that of manslaugh- 
 ter. It might be that in this case, unusual as it was, on the principle 
 of common law, manslaughter had been committed by the prisoner. 
 The prisoner committed an assault on the girl, which is an unlaw- 
 ful act, and if that act, in their judgment, caused the death of the 
 child — i. e., that the child would not have died but for that assault? 
 — they might find the prisoner guilty of manslaughter. He called 
 their attention to some considerations that bore some analogy to 
 this case. This was one of the new cases to which they had to 
 apply old principles of law. It was a great advantage that it was 
 to be settled by a jury, and not by a judge. If he were to say, as 
 a conclusion of law, that murder could not have been caused by such 
 an act as this, he might have been laying down a dangerous pre- 
 cedent for the future ; for, to commit a murder, a man might do 
 the very same thing this man had done. They could not commit 
 murder upon a grown-up person by using language so strong, or so vio- 
 lent, as to cause that person to die. Therefore mere intimidation, 
 causing a person to die from fright by working upon his fancy, was 
 not murder. 
 
 But there were cases in which intimidations had been held to be 
 murder. If, for instance, four or five persons were to stand round 
 a man, and so threaten him and frighten him as to make him be- 
 lieve that his life was in danger, and he were to back away from them 
 
 i Part of the opinion is omitted.
 
 336 homicide. (Ch. 12 
 
 and tumble over a precipice to avoid them, then murder would 
 have been committed. Then did, or did not, this principle of law 
 apply to the case of a child of such tender years as the child in ques- 
 tion? For the purposes of the case he would assume that it did not; 
 for the purposes of to-day he should assume that the law about work- 
 ing upon people by fright did not apply to the case of a child of 
 such tender years as this. Then arose the question, which wo uld 
 be for them to decide, whether this death was directly the result of 
 the prisoner's unlawful act — whether they thought that the prisoner 
 might be held to be the actual cause of the child's death, or whether 
 they were left in doubt upon that upon all the circumstances of the 
 case. After referring to the supposition that the convulsions were 
 brought on owing to the child teething, he said that, even though 
 the teething might have had something to do with it, yet if the man's 
 act brought on the convulsions, or brought them to a more danger- 
 ous extent, so that death would not have resulted otherwise, then it 
 would be manslaughter. If, therefor e, the jury though t that^ the 
 act of the prisoner in assaulting the girl was entirely unconnected 
 with it, that the death was not caused by it, but by a combination 
 of circumstances, it would be accidental death, and not manslaughter. 
 Not i£uilty. 
 
 2 
 
 REX v. HICKMAN. 
 (Shrewsbury Assizes, 1831. 5 Car. & P. 151.) 
 
 Manslaughter. The first count of the indictment stated the death 
 of the deceased to have been by blows. [^The second count stated, 
 in substance, that the deceased, John Randell, was riding on horse- 
 back, and that the prisoner made an assault upon him and struck 
 him with a stick, and that t he d eceased, from a well-grounded ap- 
 prehension of a further attack upon him, which would have endan- 
 gered his life, spurred on his horse, whereby it became frightened, 
 and threw the deceased off, giving him a mortal fracture, etc. 
 
 There was no evidence to support the first count, and it appear- 
 ed that the prisoner and the deceased, being both on horseback, had 
 a quarrel, and that the prisoner struck the deceased with a small 
 stick, and that he rode away along the Holyhead road, the prisoner 
 riding after him, and that, on the deceased spurring his horse, which 
 was a young one, the horse winced and threw him. 
 
 Mr. Justice Park. I think the second count is sufficiently prov- 
 '•'1. Tin- death of this individual was clearly caused by the frighten- 
 ing of his | Id indictments for robbery, terror and force are 
 always both stated, but it is sufficient to prove one of them. How- 
 ever, in this count, it is nol Stated that the deceased died of any blow. 
 In the case of Rex v. Evans, 1 Kuss., C. & M. 425, it was held that 
 
 » See. niso, Cox v. People, 80 N. v. BOO (1880).
 
 Sec. 1) GENERAL PRINCIPLES. 337 
 
 if the death of the deceased, who was the wife of the prisoner, was 
 partly occasioned by blows and partly by a fall out of a window, the 
 wife jumping out at the window from a well-grounded apprehen- 
 sion of further violence that would have endangered her life, the 
 prisoner was as much answerable for the consequence of the fall, 
 as if he had thrown her out at the window himself. 
 Verdict — Guilty. 1 
 
 REGINA v. WEST. 
 (Nottingham Assizes, 1848. 2 Car. & K. 784.) 
 
 Maule, J., in su mming up , said: The j^risoner is charged with 
 murder; and the means stafed are that the prisoner caused the pre- 
 mature delivery of the witness Henson, by using some instrument 
 for the purpose of procuring abortion, and that the child so prema- 
 turely born was, in consequence of its premature birth, so weak that 
 it died. This, no doubt, is an unusual mode of committing mur- 
 der, and some doubt has been suggested by the prisoner's counsel 
 whether the prisoner's conduct amounts to that offense; but I am 
 of opinion (and I direct you in point of law) tha t if a per spn in- 
 tending to procure abortion does an act which causes a child to be 
 born so much earlier than the natural time that it is born in a state 
 much less capable of living, and afterwards dies in consequence of 
 its exposure to the external world, the person who by her miscon- 
 duct so bffhgs the child into the world, and puts it thereby in a sit^ 
 nation in which it cannot live, is guilty of murder. The evidence 
 seems to show clearly that the death of the child was occasioned by 
 its premature birth ; and if that premature delivery was brought on 
 by the felonious act of the prisoner, then the offense is complete. 
 His Lordship then read the evidence, and, in conclusion, said: If 
 the child, by the felonious act of the prisoner, was brought into the 
 world in a state in which it was more likely to die than it would have 
 been if born in due time, and did die in consequence, the offense is 
 murder ; and the mere existence of a possibility that something 
 might have been done to prevent the death would not render it less 
 murder. If, therefore, you are satisfied, to the exclusion of any rea- 
 sonable doubt, that the prisoner, by a felonious attempt to procure 
 abortion, caused the child to be brought into the world, for which 
 it was not then fitted, and that the child did die in consequence of 
 its exposure to the external world, you will find her guilty. If you 
 entertain a reasonable doubt as to the facts, you will, of course, find 
 her not guilty. 
 
 Verdict — Not guilty. 
 
 i See, also. Reg. v. Pitts. 1 Car. & M. 284 (18421 ; Reg. v. Halliday. 61 L. T. 
 Rep 701 (1889); Thornton v. Strife. 107 Ga. 6S3. 3?, S. E. 673 (1SS9). Cf. 
 Hendrlckson v. Commonwealth, 85 Ky. 281, 3 S. W. 166, 7 Am. St Rev. 596 
 (1887). 
 
 Mik.Ce.L.— 22
 
 338 
 
 HOMICIDE. 
 
 (Ch. U 
 
 er*n^\ 
 
 REGINA v. GREENWOOD. 
 (Liverpool Assizes, 1857. 7 Cox. C. C. 404.) 
 
 The prisoner was indicted for murder and rape on a child under ten. 
 
 It appeared from the evidence that the prisoner had connection 
 with the deceased, and that it was afterwards discovered she had 
 the venereal disease. 
 
 Wir.HTMAN J. 'told th e jury that the malice, which constitutes 
 murder, might be either express or implied. There was no pretense 
 in this case that there was any malice other than what might be im- 
 plied by law. There were five questions for them to consider: 
 
 First, had the prisoner connection with her? 
 
 Secondly, did she die therefrom? 
 
 Thirdly, had she the venereal disease? 
 
 Fourthly, did she die from its effects? 
 
 Fifthly, did she get it from the prisoner? 
 
 If they were of opinion that the prisoner 
 ner, and she died from its effects, then that act being, under the 
 circumstances of this case, a felony in point of law, this would, of 
 itself, be such malice as would justify them in finding him guilty of 
 murder. 
 
 The jury retired, and after some time returned into court, say- 
 ing that they were satisfied that he had connection and that her death 
 resulted therefrom, but were not agreed as to finding him guilty of 
 murder. 
 
 WighTman, J., told them that, under these circumstances, it was 
 open to them to find the prisoner guilty of manslaughter, and that 
 they might ignore the doctrine of constructive malice if they thought 
 fit. 
 
 The jury found a verdict of manslaughte r, and the prisoner was 
 ordered to be kept in penal servitude for life. 
 
 had connection with 
 
 REGINA v. BENNETT. 
 (Court for Crown Cases Reserved, 1858. Bell, 1.) 
 
 The following case was reserved by Willes, J.: 
 
 Willi. mi Ueimett was convicted before me at the Old P.ailey, on 
 the 18th of August, 1858, of the manslaughter of Sarah Williams. 
 
 The sub stantial question is whether a person who makes fireworks, 
 contrary t<> .-'. 9 & l" Wrrn III, c. 7, is indictable for manslaughter 
 if dcatli be caused by a fire breaking ont amongst combustibles in 
 his pi >n, collected by him, and in the course of use. for the 
 
 purpose of his business, but not completely made into fireworks at 
 the time. 1 
 
 i Part of the statement, rendered irrelevant by the opinion of the court, is 
 
 orplt!<'fI.
 
 M\ C^t 
 
 SCC. 1) GENERAL PRINCIPLES. 330 
 
 This case was considered, on 13th November, 1858, by Cockburn, 
 C. J., and Wightman, Williams, and Willes, JJ., and Ciian- 
 NELL, B. 
 
 Martin appeared for the Crown, and Hardinge Giffard for the 
 prisoner. 
 
 Cockburn, C. J. It appears that the prisoner kept in his house 
 a quantity of fireworks, but that circumstance alone did not cause 
 the fire by which the death was occasioned ; but, the fireworks and 
 the combustibles kept by the defendant for the purpose of his busi- 
 ness being- in the house, the fire was caused by the negligence of the 
 defendant's servants. Can it be contended that, under such circum- 
 stances, the defendant is criminally responsible? 
 
 Martin, for the Crown. The explosive nature of these substances 
 kept by the defendant in such a place is to be considered; and, if 
 the keeping of the fireworks was unlawful, the prisoner would be 
 responsible for all the consequences of that unlawful act. 
 
 Cockburn, C. J. The keeping of the fireworks in the house by 
 the defendant caused the death only by the superaddition of the 
 negligence of some one else. By the negligence of the defendant's 
 servants the fireworks ignited, and the house, in which the deceased 
 was, was set on fire, and death ensued. The keeping of the fire- 
 works may be a nuisance, and if, from the unlawful act of the de- 
 fendant, death had ensued as a necessary and immediate conse- 
 quence, the conviction might be upheld. The keeping of the fire- 
 works, however, did not alone cause t*he death. Plus that act of the 
 defendant, there was the negligence of the defendant's servants. 
 
 WiiXES, J. The fire which caused the death did not happen through 
 any personal interference or negligence of the defendant. The 
 keeping of the fireworks in the house was disconnected with the 
 negligence of the defendant's servants which caused the fire. 
 
 Cockburn, C. J. The view which we all take of the case is that 
 the prisoner cannot be convicted Upon these facts. - 
 
 Hardinge Giffard, for the prisoner, was not called upon by the 
 court. 
 
 Conviction quashed. 2 
 
 REGINA v. BENGE. 
 
 (Nisi Prins, 1865. 4 Fost. & F. 504.) 
 
 Fic pTT, B., said 3 that, assuming culpable negligence on the part 
 ofthe prisoner which materially contributed to the accident, it would 
 not be material that others also by their negligence contributed to 
 cause it. Therefore he must leave it to the jury whether there was 
 
 2 Compare Reg. v. Poeock, ante, p. 131. 
 » Part of this case is omitted.
 
 340 HOMICIDE. (Ch. 12 
 
 negligence of the prisoner which had been the substantial cause of the 
 accident. In summing up the case to the jury, he said their ver- 
 dict must depend upon whether the death was mainly caused by the 
 culpable negligence of the prisoner. Was the accident mainly caus- 
 ed by the taking up of the rails at a time when an express train was 
 about to arrive, was that the act of the prisoner, and was it owing 
 to culpable negligence on his part? His counsel had urged that it 
 was not so, because the flagman and engine driver had been guilty 
 of negligence which had contributed to cause the catastrophe; but 
 they, in their turn, might make the same excuse, and so, if it was 
 valid, no one could be criminally responsible at all. This would be 
 an absurd and unreasonable conclusion, and showed that the conten- 
 tion of the prisoner's counsel could not be sound. Such was not the 
 right view of the law — that, if the negligence of "several persons at 
 different times and places contributed to cause an accident, any one 
 of them could set up that his was not the sole cause of it. It was 
 enough against any one of them that his negligence was the substan- 
 tial cause of it. Now, here the primary cause was certainly the 
 taking up of the rails at a time when the train was about to arrive, 
 and when it would be impossible to replace them in time to avoid 
 the accident. And this the prisoner admitted was owing to his own 
 mistake. Was that mistake culpable negligence, and did it mainly 
 or substantially cause the accident? The book 2 was clearly and 
 plainly printed, and must have been read carelessly to admit of such 
 a mistake. Was it not the duty of the prisoner, who knew the fear- 
 ful consequences of a mistake, to take reasonable care to be correct? 
 And had he taken such care? Then, as to its being the main cause 
 of the accident, it was true that the company had provided other 
 precautions to avoid any impending catastrophe, and that these were 
 not observed upon this occasion ; but was it not owing to the pris- 
 oner's culpable negligence that the accident was impending, and. if 
 so, did his negligence the less cause it because, if other persons 
 had not been negligent, it might possibly have been avoided? 
 Verdict— Guilty. 
 
 PEOPLE v. LEWIS. 
 
 (Supreme Court of California, 1899. 124 CaL 551, 57 Pac. 470. 45 L. R. A. 783.) 
 
 TEMPLE, J. The defendant was convicted of manslaughter, and 
 
 appeals from the judgment and from an order refusing a new trial. 3 
 
 Defendant and deceased were brothers-in-law, and not altogether 
 
 * The prisoner was foreman of :i gang of plate layers, who hod boon employed 
 to repair the rails. Be had l □ furnished with a time bouL showing the pre- 
 cise time of the arrival of trains. 
 
 » Part of tin' opinion is omitted.
 
 See. 1) GENERAL PRINCIPLES. 341 
 
 friendly, although they were on speaking and visiting terms. On the 
 morning of the homicide the deceased visited the residence of the 
 defendant, was received in a friendly manner, but after a while an alter- 
 cation arose, as a result of which defendant shot deceased in the abdo- 
 men, inflicting a wound that was necessarily mortal. Farrell fell to 
 the ground, stunned for an instant, but soon got up and went into 
 the house, saving: "Shoot me again; I shall die anyway." His 
 strength soon failed him, and he was put to bed. Soon afterward, 
 about how long does not appear, but within a very few minutes, when 
 no other person was present except a lad of about nine years of age, 
 nephew of the deceased and son of the defendant, the deceased pro- 
 cured a knife and cut his throat, inflicting a ghastly wound, from the 
 effect of which, according to the medical evidence, he must necessarily 
 have died in five minutes. The wound inflicted by the defendant 
 severed the mesenteric artery, and medical witnesses testified that un- 
 der the circumstances it was necessarily mortal, and death would en- 
 sue within one hour from the effects of the wound alone. Indeed, 
 the evidence was that usually the effect of such a wound would be to 
 cause death in less time than that, but possibly the omentum may have 
 filled the wound, and thus, by preventing the flow of the blood from 
 the body, have stayed its certain effect for a short period. Internal 
 hemorrhage was still occurring, and, with other effects of the gunshot 
 wound, produced intense pain. The medical witnesses thought that 
 death was accelerated by the knife wound. Perhaps some of them 
 considered it the immediate cause of death. 
 
 Now, i t is co ntended that this is a case where one languishing from 
 a mortal wound~is killed by an intervening cause, and, therefore, 
 deceased was not killed by Lewis. To constitute manslaughter, the 
 defendant must have killed some one, and if, though mortally wound- 
 ed by the defendant, Farrell actually died from an independent in- 
 tervening cause, Lewis, at the most, could only be guilty of a feloni- 
 ous attempt. He was as effectually prevented from killing as he would 
 have been if some obstacle had turned aside the bullet from its course 
 and left Farrell unwounded. And they contend that the intervening 
 act was the cause of death, if it shortened the life of Farrell for any 
 period whatever. 
 
 The Attorney General does not controvert the general proposition 
 here contended for, but argues that the wound inflicted by the de- 
 fendant was the direct cause of the throat cutting, and, therefore, de- 
 fendant is criminally responsible for the death. He illustrates his 
 position by supposing a case of one dangerously wounded and whose 
 wounds had been bandaged by a surgeon. He says : Suppose through 
 the fever and pain consequent upon the wound the patient becomes 
 frenzied and tears away the bandage and thus accelerates his own 
 death. Would not the defendant be responsible for a homicide? Un- 
 doubtedly he would be, for in the case supposed the deceased died 
 from the wound, aggravated, it is true, by the restlessness of the
 
 342 homicide. (Ch. 12 
 
 deceased, but still the wound inflicted by the defendant produced death. 
 Whether such is the case here is the question. 
 I The Attorney General seems to admit a fact, which I do not con- 
 cede, that the gunshot wound was not, when Farrell died, then itself 
 directly contributory to the death. I think the jury were warranted 
 v^in finding that it was. But if the deceased did die from the effect of 
 <t^the knife wound alone, no doubt the defendant would be responsible, 
 if it was made to appear, and the jury could have found from the ev- 
 idence, that the knife wound was caused by the wound inflicted by 
 the defendant in the natural course of events. If the relation was 
 causal, and the wounded condition of the deceased was not merely -the 
 occasion upon which another cause intervened, not produced by the 
 first wound or related to it in other than a casual way, then defendant 
 is guilty of a homicide. But, if the wounded condition only afforded 
 an opportunity for another unconnected person to kill, defendant 
 would not be guilty of a homicide, even though he had inflicted a 
 mortal wound. In such case, I think, it would be true that the de- 
 fendant was thus prevented from killing. 
 
 The case, considered under this view, is further complicated from 
 the fact that it is impossible to determine whether deceased was in- 
 duced to cut his throat through pain produced by the wound. May it 
 not have been from remorse, or from a desire to shield his brother-in- 
 law? In either case the causal relation between the knife wound and 
 the gunshot wound would seem to be the same. In either case, if 
 defendant had not shot the deceased, the knife wound would not 
 have been inflicted. 
 
 Suppose one assaults and wounds another, intending to take life, 
 but the wound, though painful, is not even dangerous, and the wound- 
 ed man knows that it is not mortal, and yet takes his own life to es- 
 cape pain, would it not be suicide only? Yet. the wound inflicted by 
 the assailant would have the same relation to death which the origi- 
 nal wound in this case has to the knife wound. The wound in- 
 duced the suicide, but the wound was not, in the usual course of things, 
 the cause of the suicide. 
 
 Though no case altogether like this has been found, yet, as was to 
 have been expected, the general subject has often been considered. 
 In 1 Hale's Pleas of the Crown, 42S, the law is stated. So far as 
 material here, his views may be thus summarized: (1) If one gives 
 another a dangerous wound, which might by very skillful treatment 
 be cured, and is not, it is a case of homicide. (2) If one inflicts a 
 dangerous \\<>und, and the man dies from the treatment, "if it can 
 clearly appear thai the medicine and not ihc wound was the cause of 
 the death, it seems it is nol homicide; but then it musl appear clearly 
 and certainly to be so." (3) If one receives a wound, not in itself 
 mortal, and fever or ne sets in because of improper treatment 
 
 or unruly conduct of the patient, and death ensues, it is homicide; 
 "for that wound, though it was not the immediate cause of his death,
 
 Sec. 1) GENERAL PRINCIPLES. 343 
 
 yet it was the mediate cause thereof, and the fever or gangrene was 
 the immediate cause of his death, yet the wound was the cause of the 
 gangrene or fever, and so, consequently, is causa causati." (4) One 
 who hastens the death of a person languishing with a mortal disease 
 is guilty of a nomicide; for the death is not merely by a visitation 
 of Providence, but the hurt hastens it and the wrongdoer cannot thus 
 apportion the responsibility, et cetera. It would make no difference, 
 I presume, if the person killed was languishing from a mortal wound, 
 rather than from an ordinary disease. 
 
 In State v. Scates, 50 N. C. 420, a child was found dead, badly burn- 
 ed, and with a wound from a blow on the head. The burning was ad- 
 mitted by defendant, but the blow was not, and it was not proven who 
 inflicted it. The medical witness thought the burning was the primary 
 cause of death, but the blow may have hastened it. The jury was 
 told that if it was doubtful which was the immediate cause of death 
 they must acquit, but if they found that the burning was the primary 
 cause of death and the blow only hastened it they could convict. 
 
 The case was reversed, the appellate court holding that the blow 
 might have been the independent act of another, and, if it hastened 
 the death, it, and not the burning, was the cause of death. 
 
 In Bush v. Commonwealth, 78 Ky. 26S, the deceased received a 
 wound not necessarily mortal, and, in consequence, was taken to a 
 hospital, where she took scarlet fever from a nurse and died of the 
 fever. The court said: "When the disease is a consequence of the 
 wound, although the proximate cause of the death, the person in- 
 flicting the wound is guilty, because the death can be traced as a 
 result naturally flowing from the wound and, coming in the natural 
 order of things ; but when there is a supervening cause, not naturally 
 intervening by reason of the wound, the death is by visitation of Prov- 
 idence, and not from the act of the party inflicting the wound. 
 * * * If the death was not connected with the wound in the 
 regular chain of causes and consequences, there ought not to be any 
 responsibility." 
 
 The last case, in my opinion, so far as it goes, correctly states the 
 law. The facts of this case do not bring it strictly within any of the 
 propositions found in Hale's Pleas of the Crown. The second and 
 third propositions both predicate a wound not necessarily mortal. 
 What the law would have been in the second case, had the wound been 
 mortal and the applications had hastened the death, is not stated. It 
 seems to me, however, the case of a person already languishing from a 
 mortal wound is precisely that of one suffering from a mortal dis- 
 ease. Certainly the willful and unlawful killing of such a person 
 would be a felony, and it cannot be true that the first offender and the 
 last can each be guilty of murdering the same man — if they had no 
 connection with each other, and both wounds were not actively operat- 
 ing to produce death when it occurred. 
 
 But why is it that one who inflicts a wound not mortal is guilty
 
 344 HOMICIDE. (Ch. 12 
 
 of a homicide, if through misconduct of the patient or unskillful treat- 
 ment gangrene or fever sets in, producing a fatal termination, when, 
 if it can be clearly made to appear that the medicine and not the wound 
 was the cause of the death, he is not guilty of a homicide? In each 
 case if the wound had not been, the treatment would not have been, 
 and the man would not then have died. In each case the wound occa- 
 sioned the treatment which caused or contributed to the death. The 
 reason, I think, is found in the words advisedly used in the last sen- 
 tence. In the one case the treatment caused the death, and in the 
 other it merely contributed to it. In one case the treatment aggravated 
 the wound, but the wound thus aggravated produced death. In the 
 other the wound, though the occasion of the treatment did not con- 
 tribute to the death, which occurred without any present contribu- 
 tion to the natural effect of the medicine from the wound. Take, for 
 instance, the giving of a dose of morphine, by mistake, sufficient to end 
 life at once. In such case it is as obvious that the treatment produced 
 death as it would have been had the physician cut off his patient's 
 head. But see People v. Cook, 39 Mich. 236, 33 Am. Rep. 380. In 
 this case it appears that defendant had inflicted a dangerous wound, but 
 it was contended by the defense that death was caused by an over- 
 dose of morphine. Defendant asked an instruction as follows: "If 
 the jury believe that the injury inflicted by the prisoner would have 
 been fatal, but if death was actually produced by morphine poisoning, 
 they must acquit." The instruction was refused, but the jury were 
 told that if the wound was not in itself mortal, and death was caused 
 solely by the morphine, they must acquit. The action of the trial 
 court was sustained, on the ground that a mortal wound had been 
 given which necessitated medical treatment, that the physicians were 
 competent and acted in good faith, and that it was not made clearly 
 to appear that the morphine solely produced death, and that the wound 
 did not at all contribute to the death at that time. Under the authori- 
 ties this was equivalent to the finding that the wound did not contri- 
 bute to the death. 
 
 This case differs from that in this: That here the intervening cause, 
 which it is alleged hastened death, was not medical treatment de- 
 signed to be helpful, and which the deceased was compelled to pro- 
 cure because of the wound, but was an act intended to produce death 
 and did not result from the first wound in the natural course of events. 
 But we have reached the conclusion by a course of argument un- 
 necessarily prolix, i from a desire to fully consider the earnest 
 and able argument of the defendant, that the test is — or at least one 
 test — whether, when the death occurred, the wound inflicted by the 
 defi tldant did contribute to the event. If it did, although other inde- 
 pendent i also contributed, (he causal relation between the un- 
 lawful acts of the defendanl and the death has been made out. Here, 
 when the throat was cut, Parrell was not merely languishing from 
 a mortal wound. He was actually dying -and after the throat was
 
 
 Sec. 1) GENERAL PRINCIPLES. 345 
 
 cut he continued to languish from both wounds. Drop by drop the 
 life current went out from both wounds, and at the very instant of 
 death the gunshot wound was contributing to the event. If the 
 throat cutting had been by a third person, unconnected with the de- 
 fendant, he might be guilty; for, although a man cannot be killed 
 twice, two persons, acting independently, may contribute to his death, 
 and each be guilty of a homicide. A person dying is still in life, and 
 may be killed; but, if he is dying from a wound given by another, 
 both may properly be said to have contributed to his death. 
 
 The court refused to instruct the jury as follows: "If you believe 
 from the evidence that it is impossible to tell whether Will Farrell 
 died from the wound in the throat or the wound in the abdomen, you 
 are bound to acquit." The instruction was properly refused. It as- 
 sumed that death must have resulted wholly from one wound or the 
 other, and ignored the proposition that both might have contributed, 
 as the jury could have found from the evidence. 
 
 The judgment is affirmed. 
 
 McFarland, and Henshaw, JJ., concurred. 
 
 Hearing in banc denied. 
 
 TAYLOR v. STATE. 
 
 (Court of Criminal Appeals of Texas, 1900. 41 Tex. Cr. R. 564, 55 S. W. 961., 
 
 Henderson, J. 1 Appellant objected to that portion of the charge 
 of the court which instructed the jury, in effect, that if defendant 
 and those with him took deceased, Johnson, in custody, and com- 
 pelled him to go against his will from the engine to the express car, 
 and that same was a place of danger, where deceased's life was ex- 
 posed, and that while said Johnson was in such place of danger, and 
 they were attempting to rob the train, and using him for that pur- 
 pose, if Buchanan, in resistance to the perpetration of said attempt- 
 
 "If one man inflicts a mortal wound, of which the victim is languishing, 
 and then a second kills the deceased hy an independent act, we cannot imagine 
 how the first can be said to have killed him, without Involving the absurdity 
 of saying that the deceased was killed twice. It is certain that the second 
 person could be convicted of murder if he killed with malice aforethought, 
 and to convict the first would be assuming that he had also killed the same 
 person at another time." Battle, J., in State v. Scates, 50 N. C. 423 (1S58). 
 
 See also People v. Ah Fat, 48 Cal. 61 (1874). 
 
 "Referring to the allegation, relating to the second ground of defense, that 
 a lost drainage tube (inserted by the surgeons in attendance to relieve their 
 patient, etc.) found its way into the spinal canal and caused the death of 
 John Schwindt, the learned judge said: 'But suppose it did: the prisoner 
 cannot escape by showing that death was the result of an accident occurring 
 in an operation which his felonious act made necessary. There is no pretense 
 that the drainage tubes were not required, or that they were improperly placed.' 
 This was clearly correct." Per Curiam, in Commonwealth v. Eisenhower, 181 
 Pa. 476, 37 Atl. 521, 59 Am. St. Rep. 670 (1897). 
 
 i Part of the opinion is omitted.
 
 
 346 homicide. (Ch. 12 
 
 ed robbery, in shooting at the robbers, innocently shot and killed 
 Lee Johnson, not intending to kill him, but intending to kill the par- 
 ties attempting to perpetrate the robbery, defendant and those with 
 him would be as guilty as if they themselves had shot and killed said 
 Lee Johnson. Appellant objected to this charge of the court on the 
 grounds: (1) That the evidence did not show that defendant and 
 those acting with him placed Johnson in front of the express car to 
 get him shot, but to prevent a shooting; (2) because in front of 
 the express car was not more dangerous than at any other place 
 along the line; (3) because said charge forced the jury to convict, 
 even if they believed that Buchanan killed Johnson, and did not al- 
 low them to pass upon that question; (4) it destroyed appellant's 
 innocence, and forced a conviction even if Johnson came to his 
 death by any outside, independent, and unexpected force, by a mere 
 passenger, when he was under no obligation to shoot; (5) it does 
 not give defendant the benefit of a reasonable doubt as to the exist- 
 ance of facts that would not render him guilty if Buchanan killed 
 Johnson; (6) it does not submit the law of murder in the second 
 degree. This presents a novel question, and has never, so far as we 
 are advised, been passed upon in this state ; nor do we find an an- 
 alogous case reported elsewhere. Appellant cites us to two cases 
 in support of his contention : Commonwealth v. Campbell, 7 Allen 
 (Mass.) 541, 83 Am. Dec. 705; Butler v. People, 125 111. 641, IS 
 X. E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423. Both of these were 
 cases of riot, where certain officers (in attempting to quell the riot), 
 in shooting, accidentally killed bystanders who were not engaged in 
 the riot. The prosecution attempted to hold the rioters respon- 
 sible for the killing by the officers who were opposed to them. The 
 court refused to hold the rioters responsible for the killing by the 
 officers, on the ground that the act was not done by the rioters, nor 
 in pursuance of any design by them; that the sheriff was not act- 
 ing with them, and they were in no wise responsible for his acts. 
 The court, after citing authorities, say: "That no person can be 
 held responsible for a homicide unless the act was either actually or 
 constructively committed by him ; and, in order to be his act, it must 
 be committed by his hand, or by some one acting in concert with 
 him, or in furtherance of the common design or purpose. Where 
 the criminal liability arises from the act of another, it must appear 
 that the act was done in furtherance of the common design, or in 
 ition of the common purpose for which the parties were as- 
 bled or combined together; otherwise, a person might be con- 
 victed for a crime, to the commission of which he never assented, 
 and could not be punished upon any principle of justice." And 
 again: "There wa common design or purpose existing be- 
 
 tween the two defendants and Conrey, the officer. They had not 
 assembled or conn' together fur the commission of any unlawful act. 
 They were enemies, bel o "p|">sile factions. And we know
 
 Sec. 1) GENERAL PRINCIPLES. 347 
 
 of no principle upon which it can be held that the defendants are 
 liable for the act of Conrey." And again: "They would be re- 
 sponsible for what they did themselves, and such consequences as 
 might naturally flow from their acts and conduct; but they never 
 advised, encouraged, or assented to the acts of Conrey, nor did they 
 combine with him to do any unlawful act, nor did they in any man- 
 ner assent to anything he did, and hence they could not be responsi- 
 ble for his conduct towards deceased. It would be a strange rule 
 of law, indeed, to hold a man liable for a crime which he did not 
 commit, which he did not advise, and which was committed without 
 his knowledge or assent, express or implied." This is correct doc- 
 trine, and applicable to the facts of those cases. But there are some 
 expressions in the opinion which suggest that there are cases per- 
 taining to another and different rule. For instance, it is said that 
 the parties would be responsible for a homicide actually or construc- 
 tively committed by them, and they would be responsible for what 
 they did themselves, and such consequences as might naturally flow 
 from their acts and conduct. If the rioters in said cases had taken the 
 man who was killed, and made a breastwork of him, it would be a 
 different case. We do not understand the doctrine enunciated to 
 apply to a case where the rioters might forcibly make use of another 
 in their design, and cause him to be killed by putting him in a place 
 of danger. Th e whole q uestion here is one of causal connection. 
 If theappdlant here sefTn~mbtion the cause which occasioned the 
 death of deceased, we hold it to be a sound doctrine that he would 
 be as culpable as if he had done the deed with his own hands. On 
 this subject we quote from 3 Greenleaf on Evidence, § 1420, as fol- 
 lows: "Forcing a person to do an act which causes his death ren- 
 ders the death the guilty deed of him who compelled the deceased 
 to do the act, and it not material whether the force was applied to 
 the body or to the mind; but, if it were the latter, it must be shown 
 that there was the apprehension of immediate violence, and well 
 grounded, and the circumstances by which deceased was surround- 
 ed; and it need not appear that there was any other way of escape, 
 but it must appear that the step was taken to avoid the threatened 
 danger, and such as a reasonable man might take." Again, 1 Rus- 
 sell on Crimes, p. 675, says: "Forcing a person to do an act which 
 is likely to produce his death, and which does produce it, is murder, 
 and threats may constitute such force." Mr. Bishop, to the same 
 effect, uses the following language: "He whose act causes in any 
 way, directly or indirectly, the death of another, kills him, within 
 the meaning of the law of felonious homicide. It is a rule both of 
 reason and the law that whenever one's will contributes to impel a 
 physical force, whether another's, his own, or a combined force, pro- 
 ceeding from whatever different sources, he is responsible for the 
 result, the same as though his hand, unaided, had produced it. The 
 contribution, however, must be of such magnitude, and so near the 

 
 348 HOMICIDE. (Ch. 12 
 
 result, that, sustaining to it the relation of contributory cause to ef- 
 fect, the law takes it within its cognizance." See 2 Bish. New Crim. 
 Law, §§ 424, 635, 636, 637, 657, 679, 689; 1 Bish. Crim. Law, §§ 
 562. 563. To the same effect see 1 Whart. Crim. Law, §§ 152, 167 ; 
 Whart. on Homicides, §§ 338-340; Adams v. People, 109 111. 444, 
 50 Am. Rep. 617. From these authorities, we apprehend, if the rob- 
 bers had commanded deceased to take his place in front of the in- 
 coming train, and by threats and force compelled him to stand there, 
 in order to wreck or stop it, that they might perpetrate a robbery, 
 •it will not be controverted that the causal connection between the 
 acts of the robbers and the death of the deceased would be com- 
 plete, in case deceased had been killed by the train, and that in such 
 case they would be liable for his murder. It occurs to us that the 
 causal connection in proof here was as complete. They caused de- 
 ceased to go to a place of danger, he protesting. They caused him 
 to do this by force, as the circumstances all indicate, and while he 
 was held in place by their command he was killed by those resist- 
 ing the robbery, or by the robbers themselves; and in either event 
 we consider the immediate means of his death immaterial. This is 
 the rule at common law, and is the logic of common sense, and is 
 recognized by our statutes on the subject. Article 77, Pen. Code, 
 is as follows: "If any one by employing a child or other person 
 who cannot be punished, to commit an offense, or by any means, 
 such as laying poison where it may be taken and with intent that it 
 shall be taken, or by preparing any other means by which a person 
 may injure himself, and with the intent that such person shall there- 
 by be injured, or by any other indirect means cause another to re- 
 ceive an injury to his person or property, the offender by the use 
 of such indirect means becomes a principal." Article 651 provides: 
 "Homicide is the destruction of the life of one human being by the 
 act, agency, procurement, or culpable omission of another." Ar- 
 ticle 656: "Although it is necessary to constitute homicide that it 
 shall result from some act of the party accused, yet if words be used 
 which are reasonably calculated to produce and do produce an act 
 which is the immediate cause of death, it is homicide. As, for ex- 
 ample: If a blind man, a stranger, child or a person of unsound mind 
 be directed by words to a precipice or other dangerous place, where 
 he falls and is killed, or if one be directed to take any article of medi- 
 cine, food or drink, known to be poisonous, and which docs produce 
 a fatal effect — in these and like cases, the person so operating upon 
 the mind or conduct of the person injured, shall be deemed guilty of 
 homicide." These authorities show that the person, in order to be 
 lilty of homicide, need not do the act of killing directly, but he can 
 produce the cause thus by indirection, such as by force and threats 
 opi ng upon the mind of another, and causing that oilier to take 
 a place of danger, where lie is liable to be killed. Mr. Wharton says 
 "that it is not necessary, in order to establish a causal relation between 
 the will and effect, that the effect should be precisely what the party
 
 Sec. 1) GENERAL PRINCIPLES. 349 
 
 wills to do. Nor is it necessary that it should be the primary object the 
 offender had in view, as it is sufficient if the object in view was one 
 which could not be obtained without lawbreaking. Nor need such 
 act of law-breaking be necessary to the execution of the purpose. It 
 may be only incidentally involved in such purpose, yet, if the will be 
 to effect the purpose, lawfully or unlawfully, the will is to be regarded 
 as causing the illegal act." 1 Whart. Crim. Law, § 152. So we see 
 that it may not have been, as is contended for by appellant, the primary 
 object of himself and companions to have Johnson killed, without 
 killing any one. But their act was unlawful. It was a felony. They 
 chose to put deceased in a dangerous place, in order to consummate 
 their purpose, regardless of whether he was killed or not. They put 
 him there in order to effect the robbery, and while they required 
 him to remain at the post assigned him, which was a place of danger, 
 he was shot. His life was taken on account of their direct and law- 
 less act, and they are responsible for his murder, whether it was oc- 
 casioned by their own volition or by the shots of their adversaries ; 
 and their act was the proximate cause of the destruction of his life, 
 and they cannot escape the consequences. Our statute defines murder 
 essentially the same as said offense is defined at common law, and 
 our Code further makes murder in the perpetration or attempted 
 perpetration of robbery, etc., murder in the first degree; and the 
 only question, therefore, is one of causal connection, and both the 
 common law and our statutes, as we have seen, are in harmony on 
 this proposition. Appellant was indicted as a principal, and the allega- 
 tion made that he shot and killed deceased ; and whether he or one of 
 his companions fired the fatal shot, or the shot which killed him was 
 fired by Buchanan in resistance to their attempt, they using deceas- 
 ed as a means to consummate the robbery, the allegation that ap- 
 pellant, as a principal, fired the shot which killed deceased, is equally 
 correct. We therefore hold that the court did not err in submitting 
 the question of causal connection, to wit. if appellant and those with 
 him in attempting to perpetrate the robbery of the train used de- 
 ceased for their purposes, and compelled him to occupy a dangerous 
 place in order to consummate their design, then appellant would be 
 responsible for his death. . On the contrary, the court should also 
 have instructed the jury that if appellant and those with him, engaged 
 in the perpetration of the robbery, etc., did not compel deceased to go 
 with them and occupy a place of danger in consummating their de- 
 sign, and he was killed by the opposite party, or those resisting the 
 design to rob, then appellant would not be responsible for his death. 2 
 
 2 The judgment was reversed on other grounds. 
 
 "It is unquestionably true that, where two or more persons conspire or 
 confederate together to commit a felony, each is criminally responsible for 
 every crime committed by his co-conspirators done in pursuance of the original 
 conspiracy, and which naturally or reasonably might be anticipated to result 
 from it. Therefore, if either of the defendants, in attempting to commit the 
 robbery for which they conspired, had shot and killed John Young, or had 
 shot at John Young, and, missing him, had killed a bystander, both would
 
 350 homicide. (Ch. 12 
 
 SECTION 2.— MURDER. 
 
 Homicide against the life of another, amounting to felony with 
 malice, is either murder or petit treason. And first of murder. 
 
 The word "murder" anciently signified only the private killing 
 of a man, for which, by force of a law introduced by King Canute 
 for the preservation of his Danes, the town or hundred where the 
 fact was done was to be amerced to the King, unless they could prove 
 that the person slain was an Englishman (which proof was called 
 Engleschire), or could produce the offender, etc. And in those days 
 the open, wilful killing of a man through anger or malice, etc., was 
 not called murder, but voluntary homicide. 
 
 But the said law concerning Engleschire having been abolished by 
 14 Edw. Ill, c. 4, the killing of any Englishman or foreigner through 
 malice prepense, whether committed openly or secretly, was by degrees 
 called murder; and 13 Rich. II, c. 1, which restrains the king's par- 
 don in certain cases, does in the preamble, under the general name 
 of murder, include all such homicide as shall not be pardoned without 
 special words ; and in the body of the act, expresses the same by 
 "murder, or killing by await, assault, or malice prepensed." 1 And 
 doubtless the makers of 23 Hen. VIII, c. 1, which excluded all wil- 
 ful murder of malice prepense from the benefit of clergy, intended 
 to include open as well as private homicide within the word murder. 
 
 By murder, therefore, at this day, we understand the wilful killing 
 of any subject whatsoever through malice forethought, whether the 
 person slain shall be an Englishman or foreigner. 
 
 1 Hawkins, P. C. c. 13. 
 
 Petit treason, according to St. 25 Edw. Ill, c. 2, may happen three 
 ways: By a servant killing his master, a wife her husband, or an 
 ecclesiastical person (either secular or regular) his superior, to whom 
 he owes faith and obedience. The punishment of petit treason in a 
 man is to be drawn and hanged, and in a woman to be drawn and 
 burned, the idea of which latter punishment seems to have been 
 handed down to us by the laws of the ancient Druids. 2 
 
 4 Blackstone, Com. 203. 
 
 have been guilty of murder. But this is not the case we have at bar. TTore 
 the homicide was not committed by 1 lio conspirators, cither in the pursuance 
 of the conspiracy or at all; but it was the result of action on the pari of 
 John Soung, the proprietor of tin' house, in opposition to the conspiracy, and 
 entirely contrary t<> the wishes ami hopes "f the conspirators. The defendants 
 can in n<> sense be said in have aided or abetted John foxing, for lie was Bring 
 :it tin ■in-, and i" ii'iM them responsible criminally for the accidental death <>f 
 
 a bystander, growing out of his bad aim, would lip carrying the rule of crimi- 
 nal responsibility for the acts of others beyond all reason." Barker, J., in 
 Commonwealth v Moore (Ky.) 88 s. \v. lose, 2 !>. It. A. cs. s.) 710 door..) 
 
 ■ See "Early History of Malice Aforethought" FT W. "Haltland", 8 L. Mag. 
 & Rev. (■itii Ber.) 406. 
 
 -The distinction between petil (reason and murder was abolished by st 
 9 Geo. in - , c. 81, § 2 (182J
 
 Sec. 2) MURDER. 351 
 
 REX v. HALLOW AY. 
 
 (King's Bench, 1G28. Cro. Car. 131.) 
 
 Halloway was indicted and arraigned at Newgate for murder- 
 ing one Payne. The indictment was that he, ex malitia sua praecog- 
 itata, tied the said Payne at a horse's tail and struck him two strokes 
 with a cudgel, being tied to the said horse, whereupon the horse ran 
 away with him, and drew him upon the ground three furlongs, and 
 thereby brake his shoulder, whereof he instantly died, and so mur- 
 dered him. 
 
 Upon this indictment he, being arraigned, pleaded not guilty, and 
 thereupon a special verdict found that the Earl of Denbigh was pos- 
 sessed of a park called Austerly Park; and that the said Halloway 
 was woodward of his woods in the said park, and that the said Payne, 
 with others unknown, entered the said park to cut wood there, and 
 that the said Payne climbed up a tree, and with a hatchet cut down 
 some boughs thereof ;. and that the said Halloway came riding into 
 the park, and seeing the said Payne on the tree commanded him to 
 descend, and he descending from thence the said Halloway struck 
 him two blows upon the back with his cudgel; and the said Payne 
 having a rope tied about his middle, and one end of the rope hang- 
 ing down, the said Halloway tied the end of that rope to his horse's 
 tail, and struck the said Payne two blows upon his back; whereupon 
 the said Payne being tied to the horse's tail, and the horse running 
 away with him, drew him upon the ground three furlongs, and by 
 this means brake his shoulder, whereof he instantly died, and the 
 said Halloway cast him over the pales into certain bushes. And. 
 whether upon all this matter found the said Halloway be guilty of 
 the murder, proyt? they pray the discretion of the court; and if the 
 court shall adjudge him guilty of the murder, they find him guilty of 
 of the murder; if otherwise, they find him guilty of manslaughter. 
 
 This special verdict was removed by certiorari into the King's 
 Bench, and depended three terms ; and the opinion of all the Judges 
 and Barons was demanded, and they all (except Hutton, who doubt- 
 ed thereof) held clearly that it was murder, for when the boy who 
 was cutting on the tree came down from thence upon his command 
 and made no resistance, and he then struck him two blows and tied 
 him to the horse's tail and then struck him again, whereupon the 
 horse ran away, and he by that means was slain, the law implies mal- 
 ice ; and it shall be said in law to be pr epens ed malice, he doing it to 
 one who made no resistance. And so M.irrs " term all the Justices de- 
 livered the reason of their opinions ; whereupon judgment was given, 
 and he was adjudged to be hanged, and was hanged accordingly.
 
 352 homicide. (Ch. 12 
 
 PEW'S CASE. 
 (King's Bench, 1630. Cro. Car. 1S3.) 
 
 Thomas Pew was arraigned for the murder of one Gardiner, and 
 upon evidence it appeared that the said Gardiner was a bailiff sworn 
 and known, and under-bailiff to the dean and chapter of Westminster; 
 and he having the sheriff's warrant to arrest the said Thomas Pew 
 upon a capias out of the Common Pleas, and seeing him in Shire 
 Lane, within the liberty of Westminster, the said Pew, seeing him 
 come towards him, drew his sword, and the said Gardiner approach- 
 ing to lay hold on him (not using any words of arrest, as was proved) 
 Thomas Pew said (as it was proved upon examination of two wit- 
 nesses before the coroner), "Stand off! come not near me! I know 
 you well enough : come at your peril !" and the bailiff taking hold of 
 him, he thrust him with his sword so that he died immediately. It 
 was held by all the court that it was murd er, for he coming as an of- 
 ficer to arrest, and not offering any other violence or provocation, 
 although he used not the words "I arrest you," or showed him any 
 warrant, because peradventure he had not time, nor was demanded the 
 cause, the law presumes it to be malice and murder in him that so 
 kills one being an officer and coming to execute process. 
 
 PENNSYLVANIA v. HONEYMAN. 
 (County Court of Allegheny, 1793. Add. [Pa.] 147.) 
 
 Honeyman was indicted for the murder of Benjamin Askins, on 23d 
 November, 1793. Askins, Honeyman, and two others, Ward and 
 Faris, had been drinking together, and were dancing in Askins' house. 
 Ward shoved Faris, who complained of it. Ward asked if he resent- 
 ed it. Askins said if he did not, he would ; and he threw off his 
 clothes, and struck at Ward, who kept off the blow, and left the house. 
 Honeyman called after him to come back and see it out, and he would 
 see fair play. Ward would not. Honeyman turned to Askins, said, 
 "You are a damned rascal to strike a man before he is read}," 
 knocked him down, stamped on him, and beat him. Two or three 
 kins raised himself to his knee, Honeyman knocked 
 him down, telling him, "lien, if you know when you arc well, lie 
 still." Askins died the next day of the bruises. He was a puny, weak 
 man; Honeyman was a stout young fellow. 
 
 Brackenridge and Carson, for the defendant. Fighting on a sud- 
 den quarrel, and killing, is only manslaughter. We admit this is man- 
 slaughter. Though implied malice be sufficient to make the killing 
 murder, still there must be malice. If there be no circumstances of 
 malignity, or if the killing 1"- udden, or with a weapon not likely to 
 kill, there is no ground for implying malice. Here there is no deliber-
 
 Sec. 2) murder. 353 
 
 ate design. The parties were in liquor. Askins and Honeyman wcrt 
 on terms of friendship. Askins violated the peace in his own house. 
 Honeyman wanted to repress him, and what he did was in defense o< 
 his friend. 
 
 Galbraith, for the state, contended that from the evidence, and 
 the law arising out of it, the killing was murder. 
 
 President. The unfortunate ground of this crime is that riotous 
 intemperance, so dangerous on all occasions, especially in unguarded 
 and unprincipled company. 
 
 This is not justifiable homicide, not having happened in the dis- 
 charge of any duty; nor is it excusable, not having happened in self- 
 defense, or by accident. It must, therefore, be felonious homicide; 
 and the question is whether it is murder or manslaughter 
 
 Prima facie, every killing is murder, for malice is presumed, un- 
 less the prisoner show extenuating circumstances, which take away 
 the presumption of malice. If there be no malice, it is but manslaugh- 
 ter. If there be express malice, or malice implied in the circumstances 
 of the transaction, it is murder. The distinction between murder and 
 manslaughter is nice ; and cases lying on the borders of both have 
 been often, and long and earnestly, disputed, and doubtfully decided. 
 Hence so many special verdicts, to find whether manslaughter or 
 murder. 
 
 I have said that every voluntary killing, or every act which ap- 
 parently must do harm, which is done with intent to do harm, and 
 done without provocation, and of which death is the consequence, is 
 murder 1 ; for provocation is not presumed, and malice is presum- 
 ed. The law implies malice, and the defendant must show provo- 
 cation, to rebut the presumption of malice. But malice may be more 
 than implied ; it may be express. Malice express is a deliberate or 
 formed design of taking away the life of another, or of doing him 
 some bodily mischief; and this may be manifested either by words or 
 actions. Implied malice is collected either from the manner of the 
 killing, or from the person killed, or the person killing. In willful 
 poisoning, in killing, though undesignedly, by a voluntary act, ap- 
 parently mischievous, or in killing without provocation, malice is 
 implied from the manner of the act ; and it is not necessary that the 
 malice should have existed long before. It is sufficient, if it exi^t 
 at the time. Malice, as used in the definition of murder, is a techni- 
 cal expression, and not to be taken in the common sense of that word. 
 In common acceptation, malice is taken to be a settled anger in one 
 person against another, and a desire of revenge. But in this legal 
 or technical acceptance it imports a wickedness, which includes a 
 
 i "There is no rule recognized as authority which will allow a conviction of 
 murder where a fatal result was not intended, unless the injury intended was 
 one of a very serious character, which might naturally and commonly involve 
 loss of life or grievous mischief." Campbell, J., in Wellar v. People, 30 Mich. 
 20 (1874). Accord: State v. Jarrott, 23 N. C. 76 (1S40). 
 Mik.Cb.L.— 23 
 
 C^K^7-Ay
 
 354 homicide. (Ch. 12 
 
 circumstance attending an act, that cuts off all excuse. It is used as 
 synonymous to frowardness of mind, and means that the fact hath 
 been attended with such circumstances as are the ordinary symptoms 
 of a wicked, depraved, malignant spirit, the plain indications of a 
 heart regardless of social duty, and fatally bent upon mischief. It is 
 a design of doing mischief, a voluntary cruel act. Malice, therefore, 
 is implied in every act of killing for which there is no legal justifica- 
 tion, excuse, or extenuation. 2 
 
 The excuse for murder arises from authority not wantonly or cruelly 
 exercised or abused, or from the infirmity of the human constitution. 
 A father may correct his child, or a master his servant, apprentice, 
 or scholar, in a reasonable manner; and if an accidental death ensue 
 it is only manslaughter, or perhaps homicide per infortunium. But 
 if the correction be unreasonable, with unusual or improper weapons, 
 or with extraordinary circumstances of cruelty, and if death be the 
 consequence of it, such killing is murder. Such would be the case of 
 a killing, by any person, in the preservation of the peace. If one, 
 having no authority over another, but provoked to passion by an act 
 of personal violence, in his passion beat the person thus violently 
 provoking him, and by such beating kill him, it is but manslaughter. 
 Passion excludes the presumption of malice. But if the provocation 
 was not sufficient, or, whatever it might have been, if there was no 
 passion excited, or, though excited, if there was time for the passion 
 to cool, and it had subsided, the killing is murder. Cool expressions, 
 wanton and deliberate or unusual cruelty, are evidences of want of 
 passion, and are therefore evidences of malice. Suddenly interfering, 
 in favor of a friend engaged in combat with another, and killing the 
 other in defense of this friend, has been held but manslaughter. This 
 must be on the supposition of passion excited by the danger of the 
 person in whose favor the killer interferes in the quarrel. 
 
 The jury are the judges whether the facts be true or not. The 
 court must judge of what description the crime is, which those facts 
 compose, whether murder, manslaughter, or inferior homicide; for 
 that is defining or explaining what the law is, and this is the duty of 
 the court. 
 
 It becomes our duty, therefore, to say, on the supposition that the 
 fads stated, and not contradicted here, were what really happened, 
 whether they amount to manslaughter only, or to murder. This de- 
 pends on whether Honeyman acted with malice aforethought in its 
 legal sense; and this depends on whether he acted on sufficient provo- 
 cation and in passion. 
 
 lie had no provocation. The provocation was to Ward. There 
 was no occasion to interfere in favor of Ward; for he had left the 
 
 2 "Reduced to Its lowest terms, malice in murder me:ms knowledge of such 
 circumstance! thai according t<i common experience there la =• plain and strong 
 likelihood thai < l « -; 1 1 >i win follow the contemplated act, coupled, perhaps, with 
 an Implied negation of any excuse or Justification." Holmes, 0. J., in Com- 
 monwealth v. Chance, 174 Mass. 252, 54 N. B>. 551, 75 Am. St. Rep. 300 (1899).
 
 Sec. 2) MURDER. 355 
 
 house, and was out of the reach of danger, if he had ever been in 
 any, from Askins. Askins was preserving (however improperly) the 
 peace of his own house. Honeyman had no right to interfere; and 
 we see no interest that he had in Ward more than in Askins, nor any 
 motive, but the love of mischief. If even there had been provocation 
 (and there was none), Honeyman appears to have been cool, and 
 without passion. As he knocks down Askins, he says, "If you know 
 when you are well, Ben, lie still." His acts are voluntary, wanton, 
 deliberate, and cruel, to a poor, weak man. They are the symptoms 
 of a froward mind, of a wicked, depraved, and malignant spirit, the 
 plain indications of a heart regardless of social duty and fatally bent 
 upon mischief. They therefore manifest malice aforethought; and 
 this killinGf is murder. 
 
 The jury found him guilty of murder; and sentence of death was 
 passed on him. An application was made for a pardon, and, on a 
 reference to the Attorney General, he suggested, as an error in the 
 indictment, that the epithets feloniously, willfully, etc., applied to the 
 assault, were not also applied to the stroke. On this a writ of error 
 was brought. What the issue of this was, or whether Honeyman was 
 pardoned, I know not. 8 
 
 REGINA v. HORSEY. 
 
 (Kent Assizes, 1862. 3 Fost. & F. 287.) 
 
 Murder, the indictment laying it of a person unknown. 
 
 The prisoner had willfully set fire to a stack of straw in an inclosure. 
 in which also was an outhouse or barn, but not adjoining to any 
 dwelling house. While the fire was yet burning, the prisoner was 
 seized on the spot, and the deceased was seen and heard to shriek in 
 the flames, and his body was afterwards found in the inclosure. It 
 did not very clearly appear whether he had been in the outhouse, or 
 merely lying on or by the side of the stack. There was no evidence, 
 however, who he was, and from this, coupled with the fact that he 
 was unable to get out, it should seem that he was in the barn, and that 
 he had been a tramp or beggar asleep when the fire was kindled. 
 T here w as—no -evidence how or when he came there, nor any evi- 
 dence that the prisoner had any idea that any one was, or was likely 
 to be, there. On the contrary, it rather appeared that he was shocked 
 and surprised to find that any one was in the flames, and, when he 
 saw and heard the deceased, wanted to save him. It did not exactly 
 appear how long the fire had been kindled before it was discovered, 
 but very soon after it was discovered the deceased was seen and heard 
 in the flames. 
 
 s The Judgment was afterwards reversed on the ground suggested by the 
 Attorney General. See Respublica v. Honeyman, 2 Dall. 22S, 1 L. Ed. 359 
 (1795).
 
 356 HOMICIDE. (Ch. 12 
 
 The prisoner had already been convicted of the arson. 
 
 At the close of the case, 
 
 Bramwell, B., told the jury that the law laid down was that where 
 • a prisoner, in the course of committing a felony, caused the death of 
 a human being, that was murder, even though he did not intend it; 
 and though (he said) that may appear unreasonable, yet, as it is laid 
 Y"down as law, it is our duty to act upon it. The law, however, is that a 
 man is not answerable except for the natural and probable result of 
 his own act; and therefore, if you should not be satisfied that the de- 
 ceased was in the barn or inclosure at the time the prisoner set fire to 
 the stack, but came in afterwards, then, as his own act intervened be- 
 tween the death and the act of the prisoner, his death could not be 
 the natural result of the prisoner's act. And in that view he ought 
 to be acquitted on the present charge. Verdict — Not guilty. 
 
 A 
 
 REGINA v. SERNfi. 
 (Central Criminal Court, 1887. 16 Cox, C. C. 311.) 
 
 The prisoners, Leon Serne and John Henry Goldfinch, were in- 
 dicted for the murder of a boy, Sjaak Serne, the son of the prisoner 
 Leon Serne; it being alleged that they willfully set on fire a house 
 and shop, No. 274 Strand, London, by which act the death of the boy 
 had been caused. 
 
 It appeared that the prisoner Serne, with his wife, two daughters, 
 and two sons, were living at the house in question, and that Serne at 
 the time he was living there, in midsummer, 18S7, was in a state of 
 pecuniary embarrassment, and had put into the premises furniture and 
 other goods of but very little value, which at the time of the fire were 
 not of greater value than £30. It also appeared that previously to the 
 fire the prisoner Serne had insured the life of the boy, Sjaak Serne, 
 who was imbecile, and on the 1st day of September, 1887, had in- 
 sured his stock at 274 Strand for £500, his furniture for £100, and 
 his rent for another £100, and that on the 17th of the same month the 
 premises were burnt down. 
 
 Evidence was given on behalf of the prosecution that fires were 
 seen breaking out in several parts of the premises at the same time, 
 soon after the prisoners had been seen in the shop together; two fires 
 being in the lower part of the house and two above, on the floor whence 
 
 uld he made onto the roof of the adjoining house, and in 
 
 whidi part were the prisoners and the wife and two daughters of 
 Serin', who e caped; thai on the premises were a quantity of tissue 
 transparencies for advertising purposes, which were of a most in- 
 flammable character, and thai on the site of one of the tires was found 
 a great quantity of these transparencies close to other inflammable 
 materials; that the pri oner Serne, his wife, and daughters were
 
 r ^o / Vse u-o 
 
 Sec. 2) murder. 357 
 
 rescued from the roof of the adjoining- house, the other prisoner being 
 rescued from a window in the front of the house, but that the boys 
 were burnt to death — the body of the one being found on the floor 
 near the window from which the prisoner Serne, his wife, and daugh- 
 ters had escaped, and the body of the other being found at the base- 
 ment of the premises. 
 
 STKPHL-:N r J- Gentlemen, it is now my duty to direct your atten- 
 tion to the law and the facts into which you have to inquire. The 
 two prisoners are indicted for the willful murder of the boy, Sjaak 
 Serne, a lad of about 14 years of age; and it is necessary that I 
 should explain to you, to a certain extent, the law of England with 
 regard to the crime of willful murder, inasmuch as you have heard 
 something said about constructive murder. Now, that phrase, gentle- 
 men, has no legal meaning whatever. There was willful murder ac- 
 cording to the plain meaning of the term, or there was no murder at 
 all in the present case. The definition of murder is unlawful homicide 
 with malice aforethought; and the words "malice aforethought" are 
 technical. You must not, therefore, construe them, or suppose that 
 they can be construed, by ordinary rules of language. The words 
 have to~i>e construed according to a long series of decided cases, 
 which have given them meanings different from those which might 
 be supposed. One of those meanings is the killing of another person 
 by an act done with an intent to commit a felony. Another meaning 
 is the act done with the knowledge that the act will probably cause the 
 death of some person. Now, it is such an act as the last which is 
 alleged to have been done in this case; and if you think that eitker 
 or both of these men in the dock killed this boy, either by an act done 
 with intent to commit a felony — that is to say, the setting of the house 
 on fire in order to cheat the insurance company — or by conduct which, 
 to their knowledge, was likely to cause death, and was therefore 
 eminently dangerous in itself, in either of these cases the prisoners 
 are guilty of willful murder in the plain meaning of the word. I will 
 say a word or two upon one part of this definition, because it is capable 
 of being applied very harshly in certain cases, and also because, though 
 I take the law as I find it, I very much doubt whether the definition 
 which I have given, although it is the common definition, is not some- 
 what too wide. Now, when it is said that murder means killing a man 
 by an act done in the commission of a felony, the mere words cover 
 a case like this ; that is to say, a case where a man gives another a 
 push with an intention of stealing his watch, and the person so pushed, 
 having a weak heart or some other internal disorder, dies. To take 
 another very old illustration, it was said that if a man shot a fowl 
 with intent to steal it, and accidentally killed a man, he was to be ac- 
 counted guilty of murder, because the act was done in the commis- 
 sion of a felony. I very much doubt, however, whether that is really 
 the law, or whether the Court for the Consideration of Crown Cases 
 Reserved would hold it to be so. The present case, however, is not
 
 
 * 
 
 358 homicide. (Ch. 12 
 
 such as I have cited, nor anything like them. In my opinion the 
 definition of the law which makes it murder to kill by an act done in 
 the commission of a felony might and ought to be narrowed, whilst 
 that part of the law under which the crown in this case claim to have 
 proved a case of murder is maintained. I think that, instead of say- 
 ing that any act done with intent to commit a felony and which causes 
 death amounts to murder, it would be reasonable to say that any act 
 known to be dangerous to life, and likely in itself to cause death, done 
 for the purpose of committing a felony, which caused death, should 
 be murder. As an illustration of this, suppose that a man, intending 
 to commit a rape upon a woman, but without the least wish to kill her, 
 squeezed her by the throat to overpower her, and in so doing killed 
 her, that would be murder. I think that every one would say, in a case 
 like that, that when a person began doing wicked acts for his own base 
 "purposes he risked his own life as well as that of others. 1 That kind 
 of crime does not differ in any serious degree from one committed 
 by using a deadly weapon, such as a bludgeon, a pistol, or a knife. 
 If a man once begins attacking the human body in such a way, he must 
 take the consequences if he goes further than he intended when he 
 t began. That I take to be the true meaning of the law on the subject. 
 In the present case, gentlemen, you have a man sleeping in a house 
 with his wife, his two daughters, his two sons, and a servant, and you 
 are asked to believe that this man, with all these people under his 
 protection, deliberately set fire to the house in three or four different 
 places, and thereby burnt two of them to death. It is alleged that he 
 arranged matters in such a way that any person of the most common 
 intelligence must have known perfectly well that he was placing all 
 those people in deadly risk. It appears to me that, if that were really 
 ne, it matters very little indeed whether the prisoners hoped the 
 people would escape, or whether they did not. If a person chose, for 
 some wicked purpose of his own, to sink a boat at sea, and thereby 
 caused the deaths of the occupants, it matters nothing whether at the 
 time of committing the act he hoped that the people would be picked 
 up by a passing vessel. He is as much guilty of murder, if the people 
 are drowned, as if he had flung every person into the water with his 
 own hand. Therefore, gentlemen, if Serne and Goldfinch set fire to 
 this house when the family were in it, and if the boys were by that 
 act stifled or burnt to death, then the prisoners are as much guilty of 
 murder as if they had stabbed the children. I will also add, for my 
 own part, that 1 think in so saying the law of England lays down a 
 rule of broad, plain, common sense. Treat a murderer how you will. 
 award him what puni hment you choose, it is your duty, gentlemen, 
 if you think him really guilty of murder, to say so. That is the law 
 
 • in Etei v. Lad, i Leach, 0. C. '•'»; (1772), where the prisoner had several 
 
 times committed raj d tin- body of a child, in consequence <>f which she 
 
 died, the jini^'s se< med t" doubl whether an Indictment for murder could be 
 maintained. Of. Reg, v. Greenwood, ante, p. 338.
 
 Sec. 2) murder. 359 
 
 of the land, and I have no doubt in my mind with regard to it. There 
 was a case tried in this court, which you will no doubt remember, and 
 which will illustrate my meaning. It was the Clerkenwell Explosion 
 Case in 18G8, when a man named Barrett was charged with causing 
 the death of several persons by an explosion which was intended to 
 release one or two men from custody ; and I am sure that no one can 
 say truly that Barrett was not justly hanged. With regard to the facts 
 in the present case, the very horror of the crime, if crime it was, the 
 abomination of it, is a reason for your taking the most extreme care 
 in the case, and for not imputing to the prisoners anything which is 
 not clearly proved. God forbid that I should, by what I say, produce 
 on your minds, even in the smallest degree, any feeling against the 
 prisoners. You must see, gentlemen, that the evidence leaves no rea- 
 sonable doubt upon your minds ; but you will fail in the performance 
 of your duty if, being satisfied with the evidence, you do not convict 
 one or both the prisoners of willful murder, and it is willful murder 
 of which they are accused. [The learned judge then proceeded to re- 
 view the evidence. In the result the jury found a verdict of not 
 guilty in respect of each of the prisoners.] 
 Verdict — Not guilty 
 
 STATE v. EEVELLE. 
 
 (Supreme Court of South Carolina, 1891. 34 S. C 120.) 
 
 Mr. Justice McIvkr. 1 The judge used this language in his charge 
 "In the eye of the law, self-destruction — suicide — is an offense. It is 
 an unlawful act, and if a man with a deadly weapon undertakes to 
 take his own life he is doing an unlawful act, and if in the commis- 
 sion or attempted commission of that act he takes the life of an in- 
 nocent party standing by, then in the eye of the law that is murder." 
 To this instruction there is no well-founded exception. In 1 Russell 
 on Crimes (3d Am. Ed.) 424, it is said: "Whenever an unlawful 
 act, an act malum in se, is done in prosecution of a felonious intention, 
 and death ensues, it will be murder." Now, as suicide is an unlawful 
 act, malum in se, and is a felony (1 Bish. Cr. Law, §§ 511-615), there 
 can be no doubt that the proposition laid down by the judge is correc 
 We have carefully examined the case of Commonwealth v. Mink, 123 
 Mass., 422, reported also in 25 Am. Rep. 109, cited by counsel for 
 appellant on this point, and we do not think it is applicable, for the 
 reason that in the state of Massachusetts they have a statute provid- 
 ing that "any crime punishable by death or imprisonment in the state 
 prison is a felony, and no other crime shall be so considered." Sui- 
 cide, therefore, is not a felony in that state, as from the very nature 
 of the case it cannot be punishable "by death or imprisonment in the 
 
 i Only so much of the opinion as relates to suicide Is printed. 
 
 ful 
 
 s
 
 3G0 homicide. (Ch. 12 
 
 state prison ;" and yet in that very case Gray, C. J., in delivering the 
 opinion of the court, intimates pretty plainly that one who, in an un- 
 successful attempt to commit suicide unintentionally kills another, 
 who is endeavoring to prevent it, is guilty of murder. But in this 
 state we have no such statute, and, on the contrary, section 2678 of 
 the General Statutes of 1882, prescribing the form of the verdict of 
 a coroner's inquest in a case of suicide, by the use of the term "feloni- 
 ously," expressly recognizes it as retaining its common-law character 
 as a felony. 
 
 The judgment of this court is that the judgment of the circuit 
 court be affirmed, and that the case be remanded to that court for 
 the purpose of having a new day assigned for the execution of the 
 sentence heretofore imposed. 2 
 
 See, also, cases in chapter IV. 
 
 SECTION 3.— STATUTORY DEGREES OF MURDER. 
 
 All murder which shall be perpetrated by means of poison, or 
 by lying in wait, or by any other kind of willful, deliberate and pre- 
 meditated killing, or which shall be committed in the perpetration of, 
 or attempt to perpetrate any arson, rape, robbery, or burglary, shall 
 be deemed murder of the first degree, and all other kinds of murder 
 shall be deemed murder of the second degree, 3 and the jury before 
 whom any person indicted for murder shall be tried, shall, if they 
 find such person guilty thereof, ascertain in their verdict whether it 
 be murder of the first or second degree; but if s ch person shall be 
 convicted by confession, the court shall proceed, by examination of 
 witnesses, to determine the degree of the crime, and to give sentence 
 accordingly. 
 
 Every person convicted of the crime of murder in the first de- 
 gree * * * shall be sentenced to suffer death by hanging by the 
 neck. * * * 
 
 Public Statutes of Pennsylvania, Act 1860; P. L. 402, §§ 74, 75. 
 
 Every person duly convicted of the crime of murder in the sec- 
 ond degree shall, for the first offense, be sentenced to undergo an im- 
 prisonment, by separate or solitary confinement, not exceeding twenty 
 
 ars, and for the second offense, for the period of his natural life. 
 Id. Act 1893; P. L. 17. 
 
 2 in Grace v. State, 44 Tex. Cr. R. 108, <;o 8. W. r>20 (1002). It is declared 
 thai Bulclde is qoI a crime in Texas. 
 
 For the history of the crii f suicide, see •". Columbia L. Rev. .'580. 
 
 • The statute <>f it:»i, of which this Is a re-enactment, was the forerunner 
 of all similar legislation in the United States.
 
 Sec. 3) STATUTORY DEGREES OF MURDER. 361 
 
 The killing of a human being, unless it is excusable or justifiable, 
 is murder in the first degree, when committed either 
 
 (1) From a deliberate and premeditated design to effect the death 
 of the person killed, or of another;- or (2) by an act imminently 
 dangerous to others, and evincing a depraved mind, regardless of 
 human life, although without a design to effect the death of any in- 
 dividual ; or (3) without a design to effect death, by a person en- 
 gaged in the commission of, or in an attempt to commit, a felony, 
 either upon or affecting the person killed, or otherwise; or (4) when 
 perpetrated in committing the crime of arson in the first degree. 
 
 A person who willfully, by loosening, removing or displacing a rail, 
 or by any other interference, wrecks, destroys or so injures any car, 
 tender, locomotive, or railway train, or part thereof, while running 
 upon any railway in this state, whether operated by steam, electricity, 
 or other motive power, as to thereby cause the death of a human 
 being, is guilty of murder in the first degree, and punishable accord- 
 ingly. 
 
 Such killing of a human being is murder in the second degree, when 
 committed with a design to effect the death of the person killed, or 
 of another, but without deliberation and premeditation. 
 
 Murder in the first degree is punishable by death. 
 
 Murder in the second degree is punishable by imprisonment for 
 the offender's natural life. 
 
 Penal Code of New York, §§ 183-187. 
 
 COMMONWEALTH v. DRUM. 
 (Oyer and Terminer of Westmoreland, 18G8. 58 Pa. 9.) 
 
 Justice ACxNEw charged the jury as follows: 3 
 
 In this case we have to deal only with that kind of murder in 
 the first degree described as "willful, deliberate, and premeditated. " 
 Many cases have been decided under this clause, in all of which it 
 has been held that the intention to kill is the essence of the offense. 
 Therefore, if an intention to kill exists it is willful, if this intention be 
 accompanied by such circumstances as evidence a mind fully conscious 
 of its own purpose and design it is deliberate, and if sufficient time be 
 afforded to enable the mind fully to frame the design -to kill, and to 
 
 2 Under the statutes in most states the killing of another than the person 
 intended is held to be murder in the first degree, if the killing of the person 
 intended would have been murder in that degree, even where the statute 
 contains no express provision to that effect. Wareham v. State, 25 Ohio St 
 601 (1874) ; State v. Payton, 90 Mo. 220, 2 S. W. 394 (1SS0) ; Commonwealth 
 v. Breyessee, 160 Pa. 451, 28 Atl. 824, 40 Am. St. Rep. 729 (1894). Contra: 
 Breedlove v. State, 20 Tex. App. 445, 9 S. W. 768 (18S8). 
 
 3 Agnew, J., of the Supreme Court, presided in the trial of this case, having 
 been delegated by that court for the purpose. Only so much of the case as- 
 relates to murder Is printed. 
 
 \
 
 3G2 HOMICIDE. (Ch. 12 
 
 select the instrument, or to frame the plan to carry this design into 
 execution, it is premeditated. The law fixes upon no length of time 
 as necessary to form the intention to kill, but leaves the existence of 
 a fully formed intent as a fact to be determined by the jury, from all 
 the facts and circumstances in the evidence. 
 
 A learned judge (Judge Rush, in Commonwealth v. Richard Smith, 
 2 Wheeler, Cr. Cas. [N. Y.] 79, 86) has said: "It is equally true, 
 both in fact and from experience, that no time is too short for a wicked 
 man to frame in his mind his scheme of murder and to contrive the 
 means of accomplishing it." But this expression must be qualified, 
 lest it mislead. It is true that such is the swiftness of human thought 
 that no time is so short in which a wicked man may not form a design 
 to kill and frame the means of executing his purpose ; yet this sudden- 
 ness is opposed to premeditation, and a jury must be well convinced 
 upon the evidence that there was time to deliberate and premeditate. 
 The law regards, and the jury must find, the actual intent ; ~that is to 
 say, the fully formed purpose to kill, with so much time for delibera- 
 tion and premeditation, as to convince them that this purpose is not 
 the immediate offspring of rashness and impetuous temper, and that 
 the mind has become fully conscious of its own design. If there be 
 time to frame in the mind, fully and consciously, the intention to kill, 
 and to select the weapon or means of death, and to think and know 
 beforehand, though the time be short, the use to be made of it, there 
 is time to deliberate and to premeditate. 
 
 The proof of the intention to kill, and of the disposition of mind 
 constituting murder in the first degree, under the act of assembly lies 
 on the commonwealth. But this proof need not be express or posi- 
 tive. It may be inferred from the circumstances. If, from all the 
 facts attending the killing, the jury can fully, reasonably, and satis- 
 factorily infer the existence of the intention to kill, and the malice 
 of heart with which it was done, they will be warranted in so doing. 
 He who uses upon the body of another, at some vital part, with a 
 manifest intention to use it upon him, a deadly weapon, as an ax. a 
 gun, a knife, or a pistol, must, in the absence of qualifying facts, be 
 presumed to know that his blow is likely to kill, and, knowing this, 
 must be presumed to intend the death, which is the probable and or- 
 dinary consequence of such an act. He who so uses a deadly weapon, 
 without a sufficient cause of provocation, must be presumed to do 
 it wickedly, or from a bad heart. Therefore he who takes the life of 
 another with a deadly weapon, and with a manifest design thus to 
 use it upon him, with sufficient time to deliberate, and fully to form 
 the conscious purpose of killing, and without any sufficient reason or 
 cause of extenuation, is guilty of murder in the first degree. 
 
 All murder nol of the first degree, is necessarily of the second de- 
 gree, and includes all unlawful killing under circumstances of de- 
 ity of heart and a disposition of mind regardless of social duty, 
 but where no intention to kill exists or can be reasonably and fully
 
 Sec. 3) STATUTORY DEGREES OF MURDER. 303 
 
 inferred. Therefore, in all cases of murder, if no intention to kill can 
 be inferred or collected from the circumstances, the verdict must be 
 murder in the second degree. 
 
 Having stated the law of the crime, we now note the law of the 
 evidence. And, first, it may be stated as a general rule that all homi- 
 cide is presumed to be malicious — that is, murder of some degree — 
 until the contrary appears in evidence. Therefore the burthen of re- 
 ducing the crime from murder to manslaughter, where it is proved 
 that the prisoner committed the deed, lies on him. He must show all 
 the circumstances of alleviation or excuse upon which he relies to 
 reduce his offense from murder to a milder kind of homicide, unless, 
 indeed, where the facts already in evidence show it. But though the 
 homicide, without the circumstances of alleviation or excuse, is pre- 
 sumed to be murder, it is not presumed to be murder of the first de- 
 gree. The presumption against him rises no higher than murder in 
 the second degree, until it is shown by the commonwealth to be mur- 
 der in the first degree. It therefore lies on the commonwealth to 
 satisfy the jury of those facts and circumstances which indicate the 
 deliberate intention to kill, and the cool depravity of heart and con- 
 scious purpose which constitute, as before stated, the crime of murder 
 in the first degree. When death ensues from the use of a deadly 
 weapon in a quarrel or affray, the jury must scan closely the conduct 
 of both parties, their former relations and behavior, and the current 
 of events, the character of the weapon, the manner of its use, and 
 circumstances attending it, and by a careful survey of the evidence 
 must endeavor to arrive at the true motive and cause which prompted 
 the fatal blow. Has there been a former difficulty? What feeling 
 did it produce, and what design did it beget? Was the weapon pre- 
 pared, and was the blow given coolly and without rage, or was it a 
 sudden and impetuous impulse, causing the act to be committed rashly 
 and without reflection? Were the parties engaged in mutual combat 
 when the blow was given, or was it given when the prisoner was not 
 fighting? Did he use the weapon when he might have avoided it, or 
 was the attack commenced by the deceased, and continued by him until 
 the fatal wound was given ? Was the prisoner hemmed in and without 
 means of escape? Was he in danger of life or great bodily harm, and 
 did he give the blow with the knife under the influence of excitement 
 and fear of loss of life or the infliction of great injury to his person ? 
 
 Again, the nature of the weapon, and the place and character of 
 the wound, are important to be considered. Was it a deadly instru- 
 ment — a knife, a dagger, or dirk knife? The deadliness of the weapon 
 tends to indicate the intention with which it is used. The place where 
 the thrust is made also throws light on the intention. If used upon 
 the arms or legs, it may indicate only an intention to cut and wound. 
 If used upon a vital part of the body, it may indicate an intention to 
 kill. All these are most pertinent inquiries to be made in this case,
 
 L5G1 HOMICIDE. (Ch. 12 
 
 in order to apply the results drawn from the evidence to the case as 
 presented by each side. 
 
 Starting, then, with the legal presumption of innocence in favor 
 of the prisoner, until the proof fairly establishes his guilt, the first 
 question to be decided is whether he is guilty of murder? If he formed 
 the designed to kill Mohigan, if in consequence of this purpose he 
 prepared or procured a deadly weapon and carried it about with him, 
 to be used when occasion offered itself, and if, when the opportunity 
 arose, he did use it, it would be murder. If at the time he did the 
 act he thought of his purpose to kill him, and had time to think that he 
 would execute it, and formed fully in his mind the conscious design 
 of killing, and had time to think of the weapon he had prepared, and 
 that he would use it, and accordingly so did use it, it would be murder 
 of the first degree. But, though he had prepared and carried the 
 weapon, intending to use it, if, at the time the attack was made upon 
 him, he had no real intention of killing Mohigan — did not deliberate 
 upon his act 2 — but in the suddenness of the occasion and impetuous- 
 ness of his temper he intended only to cut, wound, or do great bodily 
 harm to him, it would be murder of the second degree only. 
 
 But if the weapon was not prepared for the occasion, if the prisoner 
 entertained no previous purpose of killing Mohigan or of doing him 
 great bodily harm, and if under the impulse of passion, caused by 
 Mohigan's blows and arising when they were inflicted, the prisoner 
 struck the fatal blow without malice, he is guilty of manslaughter 
 only, even though on the instant and at the suddenness of the provo- 
 cation he intended to kill Mohigan. 
 
 Lastly, if not guilty of manslaughter, was the killing only an act 
 of self-defense? On this subject I have already said enough. 
 
 You will now take the case and render such a verdict as the evidence 
 warrants — one which will do justice to the commonwealth and to the 
 prisoner. 
 
 2 in Keenan v. Commonwealth, 44 Pn. 55, 84 Am. Pee. 414 (1862), the court 
 Bays: "The deliberation and premeditation required by the statute are not 
 upon tin- Intent, but upon the killing. It is deliberation and premeditation 
 enough to form the intent to kill, and not upon the intent after It has been 
 formed." 
 
 In Leighton v. People, 88 N. T. 117 (18S2). Danforth, J., says: "The statute 
 is not satisfied unless the Intention was deliberated upon." Cf. People v. 
 Conroy, 97 N. Y. 62 (1884); People v. Schmidt, 1GS N. T. 568, 61 N. B. 907 
 (1901).
 
 SCC. 3) STATUTORY DEGREES OF MURDER. 3G5 
 
 STATE v. BROWN. 
 (Supreme Court of Oregon, 1879. 7 Ore. 18G.) 
 
 Kelly, C. J. 1 The defendant admits that he committed a robbery 
 in the pawnshop of O'Shea, but insists that the crime was completed 
 when he and his codefendants forcibly seized the property described 
 in the indictment, and being- completed, he denies that the killing of 
 Joseph was done in the commission of the robbery. 2 We do not as- 
 sent~tcr the correctness of this conclusion. If this interpretation be 
 given to that part of section 506 which declares that any person who 
 kills another in the commission of any rape, arson, or robbery shall 
 be guilty of murder, then the statute will be practically nullified. If 
 this construction be given to that section, then a man who commits 
 a rape which results in the death of the woman will insist that, the 
 crime having been perpetrated before his victim died, he did not kill 
 her in the commission of that offense, and therefore he could not law- 
 fully be punished for the crime of murder under that section of the 
 law. When an incendiary applies his torch to a dwelling house and 
 sets it on fire, he has committed the crime of arson. If an hour after- 
 wards, unknown to him, a human being should perish in the flames, 
 ought the perpetrator of the deed to escape being punished as a mur- 
 derer, because his victim was burned to death after the house was 
 aflame ? 
 
 The burglary is complete where the burglar, with intent to com- 
 mit a crime, breaks and enters a dwelling house at night. If, after 
 having committed the crime by entering the house, he should slay the 
 owner while defending his property, could he escape punishment as 
 a murderer under this statute, because the killing took place after the 
 breaking into the house? 
 
 These crimes are referred to, to show what would be the effect of 
 construing the statute as the defendant insists it ought to be con- 
 strued in the case under consideration. Must the killing precede the 
 commission of the rape, arson, or burglary in order to constitute mur- 
 der under that part of the section? If so, then no one can be con- 
 victed under it, for the killing never takes place before the commis- 
 sion of either of those offenses. 
 
 When a person takes with force or violence the goods of another 
 from his person or presence and against his will, he has committed 
 robbery ; or, to use the more exact phraseology of the old writers upon 
 English criminal law, "an act of violence constitutes robbery," but it 
 does not necessarily complete the crime. It constitutes robbery so 
 
 i Part of the opinion only is printed. 
 
 2 The shot which caused the death of Joseph was fired when the defendant, 
 In escaping with the booty, pursued by a constable, had run four blocks of 200 
 feet each, and across two streets of 60 feet each. The shot, fired at the con- 
 stable, missed him and killed Joseph, who was standing nearby.
 
 366 HOMICIDE. (Ch. 12 
 
 far as to render the perpetrator liable to conviction for it; but the 
 act of robbery itself may be prolonged beyond the time when that 
 liability is fixed. When Brown and his codefendants took the property 
 by force from the person or presence of O'Shea, they committed the 
 crime of robbery so far as to render themselves liable to punishment 
 for it; but the robbery in contemplation of law was not completed 
 until the taking and carrying away was ended. The asportation of 
 the goods is a necessary ingredient of the robbery, as essential to com- 
 plete the crime as the violence to the owner or as the seizure itself; 
 and while anything remains to be done by the robbers to secure com- 
 plete control over the property taken the robbery is incomplete. The 
 act of taking and carrying away in the case of Brown and his code- 
 fendants commenced when the seizure was made in the pawnshop of 
 O'Shea, and continued until they had unmolested dominion over the 
 property which they had taken. When they first acquired that con- 
 trol the robbery was ended, and not before. 
 
 From the statement of facts in the bill of exceptions we are satisfied 
 that the asportation was one continuous act, from the violent seizure, 
 when O'Shea was stricken down senseless, until after Louis Joseph 
 was killed. There was no cessation in flight, no casting away or 
 secreting the property, no division of the spoils, and no disposition to 
 relinquish control of the goods ; but, on the contrary, there appeared 
 to be a concerted action to keep possession of them, and to defend 
 that possession, even if it became necessary to take human life to se- 
 cure it. 3 
 
 3 Compare People v. Young, 40 Misc. Rep. 256. 81 N. Y. Supp. 967 (1908).
 
 -liwwWL, £ f 3 7/"] 
 
 i> $7 (A 
 t ■ Tksa^ I 1 2- ' ^-p 1 J * 
 
 « ;
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 307 
 
 SECTION 4.— VOLUNTARY MANSLAUGHTER. 
 
 REGINA v. MAWGRIDGE. 
 
 (Queen's Bench, 1706. Kelyng, 119.) 
 
 At the Sessions of the Peace, held at Guildhall, London, on the 1st 
 of July, in the fifth year of the Queen, John Mawgridge, of London, 
 Gent., was indicted, for that on the 7th of June, in the same year, he 
 did feloniously, voluntarily, and of his malice forethought, make an 
 assault upon William Cope, Gent., and with a sword on the left part of 
 his breast, near the left pap, did him strike and pierce, giving him 
 thereby a mortal wound, of which he, the said William Cope, did in- 
 stantly die. Which indictment being delivered to the justices of gaol 
 delivery for Newgate, he was arraigned thereupon, and pleaded not 
 guilty. ^ 
 
 T he jury frm^d th\i gppri al yprfj irt ; 
 
 That William Cope was lieutenant of the Queen's Guards in the 
 Tower, and the principal officer then commanding there, and was then 
 upon the guard room ; and that John Mawgridge was then and there, 
 by the invitation of Mr. Cope, in company with the said William Cope 
 and with a certain woman of Mr. Cope's acquaintance, which woman 
 Mawgridge did then affront, and angry words passed between them 
 in the room, in the presence of Mr. Cope and other persons there 
 present, and Mawgridge there did threaten the woman; Mr. Cope 
 did thereupon desire Mawgridge to forbear such usage of the woman, 
 saying that he must protect the woman; thereupon Mawgridge did 
 continue the reproachful language to the woman, and demanded sat- 
 isfaction of Mr. Cope, to the intent to provoke him to fight; there- 
 upon Mr. Cope told him it was not a convenient place to give him 
 satisfaction, but at another time and place he would be ready to give 
 it to him, and in the meantime desired him to be more civil or to leave 
 the company; thereupon John Mawgridge rose up, and was going 
 out of the room ; and so going, did suddenly snatch up a glass bottle 
 full of wine, then standing upon the table, and violently threw it at 
 him the said Mr. Cope, and therewith struck him upon the head, and 
 immediately thereupon, without any intermission, drew his sword and 
 thrust him into the left part of his breast, over the arm of one Robert 
 Martin, notwithstanding the endeavor used by the said Martin to 
 hinder Mawgridge from killing Mr. Cope, and gave Mr. Cope the 
 wound in the indictment mentioned, whereof he instantly died. But 
 the jury do further say that immediately, in a little space of time, be- 
 tween Mawgridge's drawing his sword and the giving the mortal 
 wound by him, Mr. Cope did arise from his chair where he sate, and 
 took another bottle that then stood upon the table, and threw it at
 
 368 homicide. (Ch. 12 
 
 Mawgridge, which did hit and break his head ; that Mr. Cope had no 
 sword in his hand drawn all the while; and that after Mawgridge 
 had thrown the bottle Mr. Cope spake not. And whether this be mur- 
 der or manslaughter, the jury prays the advice of the court. 
 
 A day being appointed for the resolution of the court, and the mar- 
 shal required to bring the prisoner to the bar, returned he was escaped ; 
 which being recorded, the Chief Justice gave the opinion of the 
 judges in this manner: 
 
 This record being removed into this court, the case hath been ar- 
 gued before all the judges ; and all of us, except my Lord Chief Jus- 
 tice Trevor, are of opinion that Mawgridge is guilty of murder. 
 
 This hath been a case of great expectation. 
 
 This distinction between murder, and manslaughter only, is oc- 
 casioned by the statute of 23 Hen. VIII and other statutes that took 
 away the benefit of clergy from murder committed by malice pre- 
 pensed, which statutes have been the occasion of many nice specu- 
 lations. 1 
 
 3. I come now to the third matter proposed, which is to consider 
 what is in law such a provocation to a man to commit an act of vio- 
 lence upon another, whereby he shall deprive him of his life r -6G-as-$o 
 extenuate the fact, and make it to be a manslaughter only. First, 
 negatively, what is not. Secondly, positively, what is. First, mo words 
 / of reproach or infamy are sufficient to provoke another to such a de- 
 gree of anger as to strike or assault the provoking party with a sword 
 or to throw a bottle at him or to strike him with any other weapon 
 that may kill him; but if the person provoking be thereby killed it is 
 murder. 
 
 In the assembly of the judges, 18 Car. II, this was a point positively 
 resolved. Morley's Case, Kel. 53. 
 
 Therefore I am of opinion that if two are in company together, and 
 one shall give the other contumelious language (as suppose A. and 
 B.). A., that was so provoked, draws his sword and makes a pass at 
 B. (B. then having no weapon drawn), but misses him. Thereupon. 
 B. draws his sword and passes at A. And there being an interchange 
 of passes between them, A. kills B. I hold this to be murder in A., 
 for A.'s pass at B. was malicious, and what B. afterwards did was 
 i lawful. But if A., who had been so provoked, draws his sword, and 
 then, before lie passes, B.'s sword is drawn; or A. bids him draw, 
 and, B. thereupon drawing, there happen to be mutual passes, if A. 
 kills B. this will be manslaughter, because it was sudden, and A.'s dc- 
 nol SO absolutely to destroy B. but to combat with him, where- 
 by he run the hazard of his own life at the same time. But if time 
 was appointed to fighl (suppose the nexl day), and accordingly they 
 do fight, it is murder in him thai kills the other. But if they go into 
 
 die field immediately and fight, then but manslaughter. Suppose, up- 
 1 I'.'irt of tlir opinion Is omitted.
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 3C9 
 
 on provoking- language given by B. to A., A. gives B. a box on th^ 
 ear, or a little blow with a stick, which happens to be so unlucky that 
 it kills B., who might have some imposthume in his head, or other ail- 
 ment which proves the cause of B.'s death, this blow, though not 
 justifiable by law, but is a wrong, yet it may be but manslaughter, be- 
 cause it doth not appear that he designed such a mischief. 
 
 2. Secondly, as no words are a provocation, so no affronting ges- 
 tures are sufficient, though never so reproachful, which point was 
 adjudged, 3 Cro. 779, Wats and Brains, in an appeal of murder. 
 
 There having been a quarrel between A. and B., and B. was hurt 
 in the fray, and about two days after B. came and made a wry mouth 
 at A., who thereupon struck him upon the calf of the leg, of which 
 he instantly died. It was murder in A. For the affronting him in that 
 manner was not any provocation to A. to use that violence to B. 
 
 There hath been another case which I fear hath been the occasion 
 of some mistake in the decision of questions of this kind. Jones, W. 
 432, D. Williams' Case. He being a Welshman, upon St. David's Day 
 having a leek in his hat, a certain person pointed to a Jack of Lent 
 that hung up hard by, and said to him, "Look upon your country- 
 man," at which D. Williams was much enraged, and took a hammer 
 that lay upon a stall hard by and flung at him, which missed him, but 
 hit another and killed him. He was indicted upon the statute of 
 stabbing. Resolved, he was not within that statute, but guilty of man- 
 slaughter at common law. I concur with that judgment, that it is 
 not within the statute of stabbing, for it is not such a weapon or act 
 that is within that statute, neither could he be found guilty of mur- 
 der, but only of manslaughter, for the indictment was for no more. 
 But if the indictment had been for murder, I do think that the Welsh- 
 man ought to have been convicted thereof, for the provocation did 
 not amount to that degree as to excite him designedly to destroy the 
 person that gave it him. 
 
 3. Thirdly, if one man be trespassing upon another, breaking his 
 hedges or the like, and the owner or his servant shall upon sight there- 
 of take up an hedge-stake and knock him on the head, that will be 
 murder, because it was a violent act beyond the provocation, which 
 is sufficiently justified by Halloway's Case, who did not seem to intend 
 so much the destruction of the young man that stole the wood as that 
 he should endeavor to break his skull or knock out his brains, yet using 
 that violent and dangerous action of tying him to the horse-tail ren- 
 dered him guilty of murder. X 
 
 Having in these particulars shown what is not a provocation suffi- 
 cient to alleviate the act of killing, so as to reduce it to be but a bare 
 homicide. I will now, secondly, give some particular rules, such as are 
 supported by authority and general consent, and show what are always 
 allowed to be sufficient provocations. 
 
 1. First, if one man upon angry words shall make an assault upon 
 another, either by pulling him by the nose or filliping upon the fore- 
 Mik.Cr.L.— 24
 
 370 homicide. (Ch. 12 
 
 head, and he that is so assaulted shall draw his sword and immediately 
 run the other through, that is but manslaughter; for the peace is 
 broken by the person killed, and with an indignity to him that received 
 the assault. Besides, he that was so affronted might reasonably ap- 
 prehend that he that treated him in that manner might have some fur- 
 ther design upon him. 
 
 There is a case in Stiles, 467, Buckner's Case. Buckner was in- 
 debted, and B. and C. came to his chamber upon the account of his 
 creditor to demand the money. B. took a sword that hung up, and 
 was in the scabbard, and stood at the door with it in his hand undrawn 
 to keep the debtor in until they could send for a bailiff to arrest him. 
 Thereupon the debtor took out a dagger which he had in his pocket 
 and stabbed B. This was a special verdict and adjudged only man- 
 slaughter, for the debtor was insulted and imprisoned injuriously with- 
 out any process of law, and though within the words of the statute of 
 stabbing, yet not within the reason of it. 
 
 2. Secondly, if a man's friend be assaulted by another, or engaged 
 in a quarrel that comes to blows, and he, in the vindication of his 
 friend, shall on a sudden take up a mischievous instrument and kill 
 his friend's adversary, that is but manslaughter; so was the case, 12 
 Rep. 87. If two be fighting together, and the friend of the one takes 
 up a bowl on a sudden and with it break the skull of his friend's ad- 
 versary, of which he died, that is no more than manslaughter. So 
 it is, if two be fighting a duel, though upon malice prepensed, and 
 one comes and takes part with him that he thinks may have the dis- 
 advantage in the combat, or it may be that he is most affected to, not 
 knowing of the malice, that is but manslaughter. PI. Com. 101, John 
 Vaughan and Salisbury. 
 
 3. Thirdly, if a man perceives another by force to be injuriously 
 treated, pressed and restrained of his liberty, though the person abused 
 doth not complain or call for aid or assistance, and others out of com- 
 passion shall come to his rescue, and kill any of those that shall so 
 restrain him, that is manslaughter, 18 Car. II, adjudged in this court 
 upon a special verdict found at the Old Bailey in the case of one 
 Hugett, 18 Car. II. A. and others, in the time of the Dutch war, 
 without any warrant impressed B. to serve the king at sea. B. quietly 
 submitted, and went off with the press masters. Hugett and the 
 others pursued them and required a sight of their warrant; but they 
 showed a piece of paper that was not a sufficient warrant. There- 
 upon Hugett with the others drew their swords, and the press masters 
 theirs, and so there was a combat, and those who endeavored to rescue 
 the pressed man killed one of the pretended press masters. This was 
 hut manslaughter; fir when the liberty of one subject is invaded it 
 affects all the rest. Tt is a provocation to all people, as being of ill 
 example and pernicious consequence. All the judges of the King's 
 Bench, viz., Keiling, Twisden, Wyndham and Moreton, were of opin- 
 ion that it was murder, because he meddled in a matter in which he
 
 Sec. 4) 
 
 VOLUNTARY MANSLAUGHTER. 
 
 371 
 
 was not concerned. But the other eight judges of the other courts 
 conceived it only manslaughter, to which the judges of the King's 
 Bench did conform, and gave judgment accordingly. 
 
 4. Fourthly, when a man is taken in adultery with another man's 
 wife, if the husband shall stab the adulterer, or knock out his brains, 
 this is bare manslaughter; for jealousy is the rage of a man, and 
 adultery is the highest invasion of property. 1 Vent. 158; Raymond, 
 213, Manning's Case. 
 
 If a thief comes to rob another, it is lawful to kill him. And if a 
 man comes to rob a man's posterity and his family, yet to kill him is 
 manslaughter. So is the law, though it may seem hard that the killing 
 in the one case should not be as justifiable as the other. 20 Leviticus, 
 v. 10. If one committeth adultery with his neighbor's wife, even he 
 the adulterer and the adulteress shall be put to death. So that a man y 
 cannot receive a higher provocation. But this case bears no propor- ^ 
 tion with those cases that have been adjudged to be only manslaughter, 
 and therefore the court, being so advised, doth determine that Maw- 
 gridge is guilty of murder. More might be said upon this occasion, 
 yet this may at present suffice to set the matter now in question in 
 its true light, to show how necessary it is to apply the law to exter- 
 minate such noxious creatures. Upon this condition the court did 
 direct that process should be issued against Mawgridge, and so to pro- 
 ceed to outlawry if he cannot be retaken in the meantime. 
 
 STATE v. HILL. 
 
 (Supreme Court of North Carolina, 1S39. 20 N. C. 629. 34 Am. Dee. 396.) 
 
 The prisoner was indicted for murder, at Wake, on the last circuit, 
 before his honor, Judge Saunaers. \ * 
 
 The jury returned a verdict of guilty, and, sentence of death be- 
 ing pronounced upon the prisoner, he appealed. 
 
 Gaston, Judge. 1 The jury were instru cted "that if the prisoner 
 gave the first blow, and was then cut by~the deceased, although he 
 might have been agitated by excitement and anger, yet if they col- 
 lected from what he said and did, when or just before he gave the 
 mortal blow, that in fact he was possessed of deliberation and reflec- 
 tion, so as to be sensible of what he was then about to do, and did 
 the act intentionally, it was murder." This proposition, as we un- 
 derstand it, and as we must believe it to have been understood by the 
 jury, we are very confident cannot be sustained. 
 
 ~The proposition supposes that the first assault was made by the 
 prisoner without malice, and that the fatal wound was given while 
 under the influence of indignation and resentment, excited by the ex- 
 
 i Part of this case is omitted. 
 
 4 
 
 T
 
 372 homicide. (Ch. 12 
 
 cessive violence with which he had been in turn assailed by the de- 
 ceased ; but it refuses to the prisoner the indulgence which the law 
 accords to human infirmity suddenly provoked into passion, if such 
 passion left to him so much of deliberation and reflection as to enable 
 him to know that he was about to take, and to intend to take, the life 
 of his adversary. No doubt can be entertained, and it is manifest that 
 none was entertained, by his honor, but that the excessive violence 
 of the deceased, immediately following upon the first assault, consti- 
 tuted what the law deems a provocation sufficient to excite furious 
 passion in men of ordinary tempers. The case does not state that 
 the first blow given by the prisoner was such as to endanger life or 
 to threaten great bodily harm, nor that it was immediately followed 
 up by further efforts or attempts to injure the deceased. It must be 
 taken to have been a battery of no very grievous kind, and it justified 
 the deceased in resorting to so much force on his part as was reason- 
 ably required for his defense; and in estimating the quantum of force 
 which might be rightfully thus used the law will not be scrupulously 
 exact. But, when an assault is returned with a violence manifestly 
 disproportionate to that of the assault, the character of the combat 
 is essentially changed, and the assaulted becomes in his turn the as- 
 sailant. Such, according to the case, was the state of this affray, when 
 the mortal wound was given. To avenge a blow, the deceased at- 
 tacked the prisoner with a knife, made three cuts at him, and gave 
 him a severe wound in the abdomen. If instantly thereupon, in the 
 transport of passion thus excited, and without previous malice, the 
 prisoner killed the deceased, it would have been a clear case of man- 
 slaughter. Not because the law supposes that this passion made him 
 unconscious of what he was about to do, and stripped the act of kill- 
 ing of an intent to commit it, but because it presumes that passion 
 disturbed the sway of reason and made him regardless of her admoni- 
 tions. It does not look upon him as temporarily deprived of intellect, 
 land therefore not an accountable agent, but as one in whom the ex- 
 ercise of judgment is impeded by the violence of excitement, and ac- 
 countable therefore as an infirm human being. We nowhere find that 
 the passion which in law rebuts the imputation of malice must be so 
 overpowering as for the time to shut out knowledge and destroy voli- 
 tion. All the writers concur in representing this indulgence of the law 
 to be a con tision to the frailty of the human frame, which, during 
 
 the furor brevis, renders a man deaf to the voice of reason, so that, 
 although the ad done was intentional of death, it was not the result 
 of malignity of heart, but imputable to human infirmity. 
 
 The proper inquiry to have been submitted to the jury on this part 
 of the case was whether a sufficient time had elapsed after the prisoner 
 was stabbed, and before he gave the mortal wound, for passion to 
 subside and reason I ne her dominion; for it is only during the 
 
 temporary dethronement of reason by passion that this allowance is
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 373 
 
 made for man's frailty. 2 And in prosecuting this inquiry every part 
 of the conduct of the prisoner, as well words as acts tending to show 
 deliberation and coolness on the one side, or continued anger and re- 
 sentment on the other, was fit to be considered, in order to conduct 
 the jury to a proper result. 
 Judgment to be reversed. 
 
 STATE v. McCANTS. 
 
 (Court of Appeals of South Carolina, 1843. 1 Speers, 384.) 
 
 The indictment charged the prisoner with having murdered Wil- 
 liam Ladd on the 19th of March, 1842, by stabbing him to the heart 
 with a pocket knife. 
 
 The jury found a verdict of guilty, but recommended to executive 
 clemency. 
 
 The defendant appealed on the following grounds: 
 
 (1) Because the fatal blow was given in heat and passion, rea- 
 sonably excited during a sudden affray, and therefore the killing was 
 only manslaughter. 
 
 (2) Because his honor charged the jury that the material question / 
 for theriTwas whether the interval between the first and second com- 
 bat afforded time for a reasonable man to cool, whereas it is respect- 
 fully submitted the jury should have been charged to inquire whether 
 the suspension of reason arising from sudden passion excited during 
 the affray continued down to the time of the mortal stroke given, or 
 whether there were any such marks of deliberation as showed that 
 the prisoner did cool before giving the mortal stroke. 3 
 
 Curia, per Wardlaw, J. The second and third grounds of ap- 
 peal seem to show that the counsel for the prisoner did not under- 
 stand the charge of the presiding judge precisely as it has been re- 
 ported; but the objections which have been supposed to lie against 
 the charge as reported, in relation to the question of cooling and the 
 consideration which should be given to drunkenness, have been, under 
 these grounds fully discussed. It has been argued, under the second 
 ground, that the sole question as to cooling is whether the suspension 
 of reason continued down to the time of the mortal stroke, and that 
 so it must have done if no marks of deliberation showed that the 
 prisoner had cooled; whereas, the charge (not, however, stating the 
 question of reasonable time to be the only question, or, as above others, 
 the material question), held that, as to cooling, the questions were, 
 
 a "A transport of passion, which deprives of the power of self-control, is 
 in a modified or restricted sense, a dethronement of the reasoning faculty, 
 a divestment of its sovereign power ; but an entire dethronement is a depriva- 
 tion of the intellect for the time being." Clopton, J., in Smith v. State, 83 
 Ala. 28, 3 South. 551 (1887). 
 
 * Part of this case is omitted-
 
 
 374 homicide. (Ch. 12 
 
 did the prisoner cool, or was there time for a reasonable man to have 
 cooled? and that, reference being had for a standard to ordinary hu- 
 man nature, the time allowed for cooling was the time in which an 
 ordinarily reasonable man, under like circumstances, would cool. Any 
 signs of deliberation or reflection would be evidence of cooling; but 
 apart from all such signs, after a sufficient lapse of time, the law will 
 presume opportunity for cooling. "If, from any circumstance what- 
 ever, it appears that the party reflected, deliberated, or cooled any time 
 before the fatal stroke given, or if, in legal presumption, there was 
 time or opportunity for cooling, the killing will amount to murder-" 
 1 E. P. C. 252 ; 1 Russ. on Cr. 442. "Provocation will not avail, how 
 grievous soever it may have been, if it appears that there was an in- 
 terval of reflection, or a reasonable time for the blood to have cooled 
 before the deadly purpose was effected." 1 Russ. on Cr. 423. 
 
 Whether the lapse of time be taken as only evidence of cooling, 
 or as a substitute for it, which takes away the peculiar indulgence of 
 the law for sudden transport of passion, it was proper to submit the 
 question in the double form: Did the prisoner cool? or was there rea- 
 sonable time for his cooling? An affirmative answer to either of which 
 would be fatal to his attempt at mitigation. In the case of Rex v. One- 
 bey, 1 L,d. Ray. 1485, from which East, Russell, and other elementary 
 writers have drawn their doctrine on this subject, time seems to have 
 been considered only amongst the other evidences of cooling; and in 
 the charge before us it is said that from the reasonable time cooling 
 and malice will be inferred. Onebey's Case, however, decides that 
 whether the accused cooled is not a question of fact, but a question 
 of law, to be decided by the court, upon consideration of the length 
 of time and all other circumstances found by the jury upon a special 
 verdict; and in accordance is the case of Regina v. Fisher, 8 Car. & 
 P. 182, 34 E. C. L. R. 345, in the Central Criminal Court, before Mr. 
 Justice Park, Mr. Baron Parke and Mr. Recorder Law, where what 
 time shall be reasonable is said to be for the court, the jury having 
 found the length. The legal conclusion that the accused had cooled, 
 deduced by the court from the circumstances, is only, in other words, 
 the conclusion that he should have cooled — that the circumstances are 
 such, as in law, will imply deliberation. Was he cool means, not was 
 there in fact a gentle flowing of the blood which had been hurried in 
 ii- circulation, but means was there, in law, malice in his act; and 
 l he reasonable time is then not mere evidence of actual cooling, or 
 cooling in its popular sense, but is in itself a circumstance which in 
 law stands in place of such actual cooling and is equally significant of 
 malice. lie who has received a sufficient legal provocation, such as 
 might have mitigated to manslaughter a mortal blow proceeding from 
 it and given instantly, would not be less than a murderer if he should 
 remain in apparently undiminished fury for a length of time, unrea- 
 sonable under the circumstances, and then kill. By lashing himself 
 into greater fury by outward demonstrations of passion, no one should
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 375 
 
 obtain upon trial any advantage over another, who, in like circum- 
 stances, should in reasonable time master his passions, or at least cover 
 with a calm exterior the fires which inwardly consume him. The 
 law, in extending its indulgence to human frailty, does not look merely 
 to the fact that the act has proceeded from the violent impulse of 
 anger outstripping the tardier operations of reason. It asks whether 
 the anger has been provoked by sufficient cause, whether it has been 
 proportioned to the cause, whether it has been restrained from bar- 
 barous punishment, and whether it has been made to yield to the em- 
 pire of reason in proper time. No anger, however violent, will miti- 
 gate the guilt of him who snatches a deadly weapon upon provocation 
 by words only, no matter how hard to be borne. Even where the 
 provocation has been what is called legal, but slight, and the death of 
 the aggressor has ensued from an instant act of resentment, no matter 
 how uncontrollable the passion, the inquiry is, was the act of resent- 
 ment in reasonable proportion to the provocation? 2 And where an- 
 ger, excited by blows, has according to the frequent course of nature 
 increased with its gratification, and blows given in return have re- 
 doubled upon blows, malice would be presumed from unreasonable 
 and disproportionate excess of punishment. So, when anger, pro- 
 voked by a cause sufficient to mitigate an instantaneous homicide, has 
 been continued beyond the time which, in view of all the circumstan- 
 ces of the case, may be deemed reasonable, the evidence is found of 
 that depraved spirit in which malice resides. 
 
 The law regards men as rational creatures, and expects them to 
 subject their passions to reasonable control. The abatement of its 
 reign, which it grants to such frailty as is common to human nature, 
 it does not extend to unreasonable and excessive indulgences of pas- 
 sion. The standard of what is reasonable is ordinary human nature, 
 to be applied by the court if all the facts and circumstances be found 
 by a special verdict or to be applied by the jury in giving a general 
 
 2 "If a man should kill a woman or a child for a slight blow, the provoca- 
 tion would be no justification; and I very much question whether any 
 blow inflicted by a wife on a husband would bring the killing of her below 
 murder. Upon this view I have always doubted Stedman's Case, in which, 
 for a woman's blow in the face with an iron patten, given to a soldier in re- 
 turn for words of gross provocation, he gave her a blow with the pummel 
 of his sword on her breast, and then ran after her and stabbed her in the 
 back, and the crime was held to be only manslaughter. R. v. Stedman, Fost. 
 292. Where a blow is cruel or unmanly, the provocation will not excuse it." 
 Gibson, C. J., in Commonwealth v. Mosler, 4 Pa. 268 (1846). 
 
 "In the light of the evidence in this case the doctrine of 'cooling time' does 
 not apply. The deceased did not offer to strike the prisoner, and therefore 
 gave him no legal provocation. 'Words of reproach and of insult, however 
 grievous, do not make legal provocation, nor do indecent or provoking actions, 
 or gestures expressive of contempt or reproach, unless accomplished with 
 indignity to the person, as by a battery, or an assault, at least. * * * In 
 the absence of such provocation, there is in the eye of the law no adequate 
 cause for such furious state of mind of the prisoner and excessive heat of 
 blood as will mitigate the crime from murder to manslaughter. In such a 
 case there is no occasion for cooling time.' State v. McNeill, 92 N. C. 812." 
 Montgomery, J., In State v. Spivey, 132 N. C. 991, 43 S. E. 475 (1903).
 
 
 q 
 
 76 homicide. (Ch. 12 
 
 verdict. As to the reasonable time in which cooling should ensue 
 after provocation, no precise rule can be given. In Onebey's Case, 
 the cooling was held to take place, not when calmness has been re- 
 stored, but when that fury of passion which, for a brief time, takes 
 away the reasoning faculties, has abated, or that the accused reflects; 
 and in Lord Morley's Case, cited by Lord Raymond, it was held that, 
 to make it murder, the time need be such time only as it may appear 
 not to be done on the first passion, and that an observation made as to 
 the conveniency of a place for fighting, showed the temper to be such 
 as constituted murder. 
 
 In all cases where the time of cooling may be considered, whether 
 the time be regarded as evidence of the fact of cooling, or as con- 
 stituting of itself, when reasonable, legal deliberation, the whole cir- 
 cumstances are to be taken into the estimate in determining whether 
 the time be reasonable. The nature of the provocation, the prisoner's 
 physical and mental constitution, his condition in life and peculiar situ- 
 ation at the time of the affair, his education and habits (not of them- 
 selves voluntary preparations for crime), his conduct, manner, and 
 conversation throughout the transaction — in a word, all pertinent cir- 
 cumstances — may be considered, and the time in which an ordinary 
 man in like circumstances would have cooled is the reasonable time. 
 
 The motion is dismissed. 
 
 Richardson, O'Neau., Evans, and Butler, JJ., concurred. 
 
 STATE v. GRUGIN. 
 
 (Supreme Court of Missouri, 1S98. 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 
 
 774, 71 Arm St. Rep. 553.) 
 
 Sherwood, J. 1 The salient topics which this record presents, and 
 on which our attention will be centered, are these: 
 
 First. Did the outrage perpetrated by Hadley on his young sister- 
 in-law Alma, defendant's daughter, authorize and require a submis- 
 sion to the jury of the question whether defendant's shooting Hadley 
 was done in "hot blood," and therefore only manslaughter? 
 
 Second. Did the insolent and defiant reply of Hadley, when ques- 
 tioned by defendant as to the vile deed he had done to the latter's 
 daughter, authorize and require a, submission to the jury of the ques- 
 tion whether the words used by Hadley were such as to generate a 
 sufficient or reasonable provocation, so as to produce hot blood, and 
 thus lower the grade of the homicide in either degree to manslaughter? 
 
 Third. Whether certain instructions given at the instance of the 
 state should have been refused? 
 
 Fourth. Whether a certain instruction asked by defendant should 
 have been given, either as asked or in a modified form? 
 
 i Arguments of counsel and part of the opinion are omitted.
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 377 
 
 1. In discussing the first question propounded, we are necessarily 
 brought into contact with that line of cases which treat of "hot blood" 
 and how it may be engendered. Among other familiar instances fur- 
 nished by the books are those where a husband finds a man in the act 
 of adultery with his wife and immediately kills him or her. That is 
 accounted but manslaughter, and it is the lowest degree of that of- 
 fense; and therefore in such a case the court directed the burning 
 in the hand, to be gently inflicted, because there could not be a greater 
 provocation. Sir T. Raym, 212. 
 
 According to the old books, such discovery of the wife's adultery 
 must have been made in the very act, and the killing must have been 
 done "directly on the spot" in order to reduce the homicide to man- 
 slaughter. 4 Black. Com. 191; 3 Greenl. Ev. (14th Ed.) § 122. The 
 husband must have "ocular inspection of the act, and only then." 
 Pearson's Case, 2 Lew. 216; 1 Hale, P. C. 487. 
 
 But since the law, as other sciences, makes progress, it is no longer 
 accounted necessary that a husband should have "ocular inspection," 
 etc. It suffices if the provocation be so recent and so strong that the 
 husband could not be considered at the time master of his own under- 
 standing. State v. Holme, 54 Mo. 153. In the case just cited, the 
 case of Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, was ap- 
 proved, the facts in that case having been these: "The prisoner of- 
 fered evidence tending to show the commission of adultery by H. 
 with the prisoner's wife. Within half an hour before the assault 
 the proof showed that the prisoner saw them going into the woods 
 together under circumstances calculated strongly to impress upon his 
 mind the belief of an adulterous purpose; that he followed after 
 them to the woods; that they were seen not long after coming from 
 the woods, and that the prisoner followed on in hot pursuit, and was 
 informed on the way that they had committed adultery the day be- 
 fore; that he followed H. into a saloon in a state of excitement, and 
 there committed the assault. The court held that the evidence was 
 proper, as from it it would have been competent for the jury to find 
 that the act was committed in consequence of the passion excited by 
 the provocation, and in a state of mind which would have given to 
 the homicide, had death ensued, the character of manslaughter only. 
 The evidence showed that the prisoner, in following H. from the 
 woods, was laboring under great excitement, that when a friend told 
 him on the way what had happened the day before his passion was 
 increased, and that when he arrived at the saloon the perspiration had' 
 broken out all over his face." And in that case it was ruled that the 
 question as to what is an adequate or reasonable provocation is one 
 of fact for the jury, and so, also, is the question whether a reasonable 
 time had elapsed for the passion to cool and reason to resume its con- 
 trol. 
 
 In this connection it must not be forgotten what a high estimate 
 the men of all nations have placed on the chastity of their women
 
 378 homicide. (Ch. 12 
 
 and on the inviolability of their persons. Some of the fiercest tumults 
 and wars have had their origin in assaults made on the modesty or 
 honor of women. Notwithstanding this, the law as yet has made no 
 provision and provided no punishment for many such instances ; nay 
 more, a brother who detected a man in the act of adultery with his 
 sister, and thereupon stabbed him to death, was by the Supreme Court 
 of Pennsylvania adjudged guilty of murder. Lynch v. Common- 
 wealth, 77 Pa. 205. 
 
 Lord Macauley, in his "Report on the Indian Code," very forcibly 
 points out the gross injustice of accounting a husband who slays an 
 adulterer, found with his wife, only guilty of manslaughter, and yet 
 holds a high-spirited brother, who in a paroxysm of rage kills the 
 seducer of his sister, guilty of murder. Proceeding further, Lord 
 Macauley says : "There is another class of provocations which Mr. 
 Livingston does not allow to be adequate in law, but which have been, 
 and while human nature remains unaltered will be, adequate in fact 
 to produce the most tremendous effects. Suppose a person to take in- 
 decent liberties with a modest female in the presence of her father, 
 her brother, her husband, or her lover, such an assault might have 
 no tendency to cause pain or danger, yet history tells us what effects 
 have followed from such assaults. Such an assault produced the 
 Sicilian Vespers. Such an assault called for the memorable blow 
 of Wat Tyler. It is difficult to conceive any class of cases in which 
 the intemperance of anger ought to be treated with greater lenity. 
 So far, indeed, should we be from ranking a man who acted like 
 Tyler with murderers, that we conceive that a judge would exercise 
 a sound discretion in sentencing such a man to the lowest punishment 
 fixed by the law for manslaughter." 
 
 When testifying before the "Homicide Amendment Committee" in 
 1874, Blackburn, J., said: "Supposing a man is actually keeping 
 company with a young woman, she cannot be called his sister or his 
 ward, or even under his protection ; and suppose a ruffian steps for- 
 ward and in the presence of the other pulls up her petticoats and 
 catches hold of her, and the other struck him down and the man died. 
 That case was before Mr. Justice Pattison at York. Somehow or 
 other the jury and Mr. Justice Pattison contrived to acquit him al- 
 ther. I think that was provocation that would reduce it to man- 
 slaughter." 
 
 • I f. as Bishop states, the "law accepts human nature as God has 
 made it, or as it manifests itself in the ordinary man, and every sort 
 of conduct in others which commonly does in fact so excite the pas- 
 sions of the mass of men as practically to enthrall their reason, the 
 law holds to be adequate cause," I do not see how defendant is to 
 be denied the benefit of thai theory in the painful circumstances of 
 the present case. To him, in contemplation of law, the foul wrong 
 done his child, though not revealed to him until the morning of the 
 day of the homicide, was as Eresh and potent to stir his blood as if
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 379 
 
 done on that very morning. If this be the case, then the law, while 
 it softens the punishment of a husband who slays an adulterer found 
 in his bed, surely cannot be so illogical as to deny a like result to a 
 father who slays the ravisher of his young daughter. Indeed, it might 
 well be said that in the latter case there should be greater lenity 
 shown by the law than in the former, because the wife has been a 
 consenting party to the homicide-producing adultery. The trial court, 
 while it admitted the evidence which preceded the killing, yet by its 
 instructions denied that such evidence had any effect to lower the 
 grade of defendant's crime from either degree of murder to man- 
 slaughter. If the evidence referred to was to be denied any effect, 
 then it should not have been admitted. The instructions for the state 
 under review were also erroneous, in that they dictated to the jury as 
 a matter of law what was a sufficient or reasonable provocation and 
 what a sufficient cooling time. Y 
 
 2. The second interrogatory is next for consideration. It embodies -j | 
 and comprehends the question whether words constitute a sufficient 
 or reasonable provocation in law. Of course, the books abound in 
 utterance of the platitude that words, however opprobrious, constitute 
 no provocation in law. Speaking as the organ of this court, I have 
 often uttered this platitude myself; but the statement is subject to 
 many qualifications. The general good sense of mankind has in some 
 instances so far qualified the rigor of what is termed the ancient rule 
 that a statute has been passed in Texas which reduces a homicide to 
 manslaughter where insulting words are used to or concerning a fe- 
 male relative. The killing is reduced to manslaughter where it oc- 
 curs as soon as the parties meet after the knowledge of the insult. 
 9 Am. & Eng. Ency. of Law, 581. 
 
 In Alabama a statute provides that opprobrious words shall in some 
 circumstances justify an assault and battery. Riddle v. State, 49 Ala. 
 389. And in that state, without any statutory provision on the sub- 
 ject, it has been determined that "insult by mere words," when the 
 defendant acts on them and he has not provoked them, may be weighed 
 by the jury with other evidence in determining whether the killing 
 was murder in the first or second degree. Watson v. State, 82 Ala. 
 10, 2 South. 455. 
 
 After speaking of Morley's Case, Hale says: "Many who were of 
 opinion that bare words of slighting, disdain or contumely would not 
 of themselves make such a provocation as to lessen the crime into 
 manslaughter, yet were of this opinion : That if A. gives indecent 
 language to B., and B. thereupon strikes A., but not mortally, and 
 then A. strikes B. again, and then B. kills A., that this is but man- 
 slaughter, for the second stroke made a new provocation, and so it 
 was but a sudden falling out, and, though B. gave the first stroke, and, 
 after a blow received from A., B. gives him a mortal stroke, this 
 is but manslaughter. According to the proverb, the second blow
 
 3S0 HOMICIDE. (Cli. 12 
 
 makes the affray. And this was the opinion of myself and some oth- 
 ers." 1 Hale, P. C. 456. 
 
 Now in the case Hale supposes it is, as he says, the second stroke 
 that made a "new provocation" ; but the second stroke was given 
 by A. Then what made the old provocation? Evidently the "in- 
 decent words" of A., which, given by A. to B., prompted the latter 
 to give the first stroke. So, in Morley's Ca<=e it was agreed that "if 
 upon ill words both of the parties suddenly fight, and one kill the other, 
 this is but manslaughter; for it is a combat betwixt two upon a sud- 
 den heat, which is the legal description of manslaughter." 6 How. 
 St. Tr. 771. In that instance, also, it must be noted that "ill words" 
 were the provocation that made the hot blood which resulted only 
 in manslaughter. To test this matter further, suppose no "ill words" 
 used, what then the crime? Evidently murder. 
 
 It is said in the books that, though an insufficient assault or demon- 
 stration do not import coming violence, still it and insulting words 
 combined may so excite the passions as to reduce the killing to man- 
 slaughter. 2 Bishop's New Cr. Law, § 704. 
 
 If the inchoate assault be naught as provocation, and the oppro- 
 brious words be naught as provocation, I am unable to see how the 
 addition of these two ciphers can make a unit. "The moment, how- 
 ever, the person is touched with apparent insolence, then the provoca- 
 tion is one which, ordinarily speaking, reduces the offense to man- 
 slaughter." 1 Whart. Cr. Law (10th Ed.) § 456. And it is held that 
 such "apparent insolence" may be manifested in a variety of ways, 
 as, for instance, by a contemptuous jostling on the street, by tweak- 
 ing the nose, by filliping on the forehead, or by spitting in the face. 
 In most of these instances and illustrations there is no physical pain 
 or injury inflicted. The "sudden heat" springs from the indignity 
 the insult offered, and from nothing else. Kelly, Cr. Law, § 518. 
 This being true, the law should not be so unreasonable as to deny to 
 afrin<mlt offered 1 in words the same force and effect which all men rec- 
 ognize that it has as a matter of fact. If it "so excite the passions 
 of the mass of men as to enthrall their reason, the law should hold 
 it adequate cause" for the reduction of the grade of the offense re- 
 sulting from the use of the insulting words. No sound distinction 
 can, it seems, be taken in principle between insult offered by acts and 
 that offered by foul and opprobrious words. 
 
 I will now refer to some adjudications where insulting words have 
 been held a sufficient basis for a charge or an instruction on the of- 
 fense of manslaughter. Where the prisoner was indicted for the will- 
 ful murder of his wife, Blackburn, J., in summing up, said: "As a 
 general rule of law, no provocation of words will reduce the crime of 
 murder to that of manslaughter, hut under special circumstances there 
 may be such a provocation of words as will have that effect; for in- 
 stance, if a husband Suddenly hear from his wife that she had com- 
 mitted adultery, and he, having no idea of such a thing before, were
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 3S1 
 
 thereupon to kill his wife, it might be manslaughter. Now, in this 
 case, words spoken by the deceased just previous to the blows inflicted 
 by the prisoner were these: 'Aye; but I'll take no more for thee, for 
 I will have no more children of thee. I have done it once, and I'll 
 do it again.' Now, what you will have to consider is, would these 
 words, which were spoken just previous to the blows, amount to such 
 a provocation as would in an ordinary man, not in a man of violent 
 or passionate disposition, provoke him in such a way as to justify 
 him in striking her as the prisoner did?" Reg. v. Rothwell, 12 Cox, 
 C. C. 145. In that case (tried in 1871) the husband seized a pair of 
 tongs, close at hand, and struck his -wife three violent blows on the 
 head, from which she died within a week, and the verdict was for 
 manslaughter. 
 
 [The Court here reviewed Reg. v. Smith, 4 Fost. & F. 1066 ; Seals 
 v. State, 3 Baxt. (Tenn.) 466, and Wilson v. People, 4 Parker, Cr. 
 R. (N. Y.) 619, and continued:] 
 
 So it will be seen that there are circumstances where words do 
 amount to a provocation in law ; i. e., a reasonable provocation to be 
 submitted to the determination of the jury, and, if found by them to 
 exist, then the crime is lowered to the grade of manslaughter. If 
 there ever was a case to which this principle should be applied, it 
 would seem it should be applied to the case at bar. A father is in- 
 formed that his young daughter, just budding into womanhood, has 
 been ravished by his son-in-law, while under the supposed protection 
 of his roof. Arriving where the son-in-law is, and making inquiry 
 of him why he had done the foul deed, that father receives the an- 
 swer, "I'll do as I damn please about it." This insolent and defiant 
 reply amounted to an affirmation of Hadley's guilt ! So long as human 
 nature remains as God made it, such audacious and atrocious avowals I 
 will be met as met by defendant. It should be held, therefore, that the 
 words in question should have been left to the jury to say whether, in 
 the circumstance detailed in evidence, they constituted a reasonable 
 provocation, and, if so found, that then defendant was guilty of no 
 higher offense than manslaughter in the fourth degree. 
 
 The judgment should be reversed, and the cause remanded. Bur- 
 gess, J., concurs in toto. Gantt, P. J., does not concur as to that 
 portion of paragraph 2 in reference to words being regarded as a 
 reasonable provocation by either court or jury. 2 
 
 2 Compare State v. Neville, 51 N. C. 423 (1859) ; Hardcastle v. State, 36 Tex. 
 Cr. R. 555, 38 S. W. 186 (1896) ; State v. Senegal, 107 La. 452, 31 South. 867 
 (1902).
 
 382 homicide. (Ch. 12 
 
 STATE v. YANZ. 
 
 (Supreme Court of Errors of Connecticut, 1901. 74 Conn. 177, 50 Atl. 37, 54 
 
 L. R. A. 780, 92 Am. St. Rep. 205.) 
 
 Baldwin, J. The trial court, in its charge to the jury, used this 
 language: "If in fact no adultery was going on, and the husband is 
 mistaken as to the fact, though the circumstances were such as to 
 justify a belief even of adultery, the offense would not be reduced to 
 manslaughter. The husband must judge at his peril that the jury may 
 find that he was mistaken, and so find him guilty of murder instead of 
 manslaughter." 
 
 The law justifies a jury in calling it manslaughter when, on finding 
 his wife in the act of adultery, a man, in the first transport of passion, 
 kills her paramour. This is because, from a sudden act of this kind, 
 committed under the natural excitement of feeling induced by so gross 
 an outrage, malice, which is a necessary ingredient of the crime of 
 murder, cannot fairly be implied. The excitement is the effect of a 
 belief, from ocular evidence, of the actual commission of adultery. 
 It is the belief, so reasonably formed, that excites the uncontrollable 
 passion. Such a belief, though a mistaken one, is calculated to induce 
 the same emotions as would be felt were the wrongful act in fact 
 committed. 
 
 The law deems a husband's passion, excited by surprising his wife in 
 the act of adultery, so far uncontrollable, from the frailty of human 
 nature, that, if he kill her paramour on the impulse of the moment, 
 and no actual malice is disclosed, none ought to be implied. He is 
 not justified; but he is not a murderer. The reason of this rule of 
 law being the existence of an uncontrollable passion, naturally in- 
 duced, it must logically follow that it suffices if such a passion has 
 been naturally induced in the mind of the slayer by the sight of his 
 wife in the embrace of the man whom he killed and a reasonable be- 
 lief of her guilt, formed under circumstances such as those to which 
 the accused testified in the present case. If the jury believed this tes- 
 timony, or so much of it as showed a state of facts which, in their 
 opinion, justified and produced a reasonable belief on the part of the 
 accused that adultery was being committed when the shot was fired, 
 then, there having been no proof of actual malice, although they may 
 also have believed that it was fired intentionally, the natural excite- 
 ment of passion and want of premeditation make the offense man- 
 slaughter. Morris v. Piatt, 32 Conn. 75, S3. There is erro r. The 
 judgment is set aside, and a new trial is ordered. 
 
 Torrani i. and 1 1 \i.r., JJ., concurred. Andrews, C. J., dissented. 
 
 Hamersley, J. (dissenting). The particular passage of the charge 
 claimed to be erroneous is this: "If in fact no adultery was going on, 
 and the husband is mistaken as to the fact, though the circumstances 
 were such as to justify a belief even of adultery, the offense would
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 383 
 
 not be reduced to manslaughter." The statement is correct. The par- 
 ticular form of manslaughter the court was called upon to explain was 
 this : An intentional killing in a transport of passion induced by an 
 immediate wrong done to the killer by the person killed, which the 
 law deems to be of such nature that the ordinary man is unable, under 
 the first sting of its infliction, to control a natural impulse to punish 
 the offender. Such an injury, if unprovoked, constitutes a provoca- 
 tion which may render the immediate killing of the offender, in the 
 transport of sudden anger caused by the injury received, manslaugh- 
 ter, and not murder. It is a principle common to most systems of 
 jurisprudence, arising frorrFessential conditions of life, that the pun- 
 ishment for unjustifiable, intentional killing should be less severe when 
 tEe" fatal blow is impelled by a transient rage, reasonably induced by 
 and immediately following a wrongful act done by the person killed 
 to^the slayer. Such wrongful act constitutes legal provocation, which 
 demands the milder punishment ; that is, under our law reduces mur- y. 
 der to manslaughter. It should, however, be remembered that to call 
 for the milder punishment the killing must be in fact the result of a 
 sudden rage, difficult for the ordinary man to control, directly induced 
 by a grievous injury. If in fact it is the result of the cruel spirit of 
 revenge that must have life for a wrong, it is murder, no matter what 
 the provocation may be. In drawing the line between the crimes of 
 murder and manslaughter, the law repels the notion that killing in 
 revenge can be less than murder. The cases in which particular facts I 
 have been held to show legal provocation point to a principle, commonly 
 to all, by which each is determined, and suggests its foundation, name-V/ 
 ly, when the mind of the slayer is not possessed by that conscious 
 cruelty indicated by voluntary killing, but by a sudden transient rage'i 
 being the natural product of an injury then done to him by the person 
 killed, the offense may be manslaughter. Mere rage is insufficient. /^ 
 It must arise directly from an injury then received, which must be as 
 real as that caused by a severe battery. Mere insult is insufficient in 
 law to produce this rage, unless it involve some grievous injury ; not 
 a fanciful one, such as may result from mocking words or gestures, 
 but a substantial injury, such as may be caused in some conditions of 
 life by an unpunished personal affront, or such as may be suffered by - 
 a husband or father in the degradation of his wife or child. It is the 
 combination of adequate insult and injury received, of sudden and 
 uncontrollable transient rage thereby naturally produced, and of un- 
 lawful killing directly resulting from that rage, which marks such 
 killing as manslaughter. The essence of the common law, as affect- 
 ing the distinction between murder and manslaughter (excluding some 
 arbitrary tests), is this: Murder implies the presence as dominating 
 a voluntary act causing death of an inhuman or unnaturally cruel state 
 of mind ; manslaughter implies its absence. It is thus stated by Lord 
 Holt in 1707 : "He that doth a cruel act voluntarily, cloth it of malice 
 prepensed." Reg. v. Mawgridge, 1 Kel. 119 et seq. Sir J. F. Stephen
 
 3S4 homicide. (Ch. 12 
 
 characterizes this definition of malice aforethought as correct and 
 happy, and, with the insertion of the words "or cruelly reckless" as 
 solving nearly all questions as to the distinction between murder and 
 manslaughter. 1 Steph. Hist. Cr. Law Eng. pp. 70, 73. Russell thus 
 explains what may be involved in a cruel act: "Violent acts of re- 
 sentment, bearing no proportion to provocation or insult, are bar- 
 barous, proceeding rather from brutal malignity than human frailty; 
 and barbarity will often make malice." 1 Russ. Cr. (9th Am. Ed.) 
 713. Intentional unlawful killing is necessarily a cruel act, which 
 implies murder; but when the person killed is himself the aggressor, 
 through giving a provocation adequate to produce a sudden anger 
 and impulse to punish the wrong, sufficient to dominate the will of 
 the killer, the inherent cruelty of the act is so far modified as to make 
 the offense manslaughter. Provocation, therefore, is legally effective, 
 because for the moment it prevents, subdues, or excludes from the 
 mind of the criminal actor that unnatural cruelty which is the ear- 
 mark of murder through the controlling presence of natural rage im- 
 mediately induced by an adequate injury. The essential test of an 
 adequate injury is its inherent and judicially known capacity, under 
 existing social conditions, to cause such rage, as a rule, when inflicted 
 on the ordinary man. The conditions to which this part of the charge 
 applied were these: (1) An admittedly intentional unlawful killing; 
 (2) in a transport of rage; (3) induced by an injury and insult done 
 to the defendant by adultery committed with his wife in his presence. 
 To make the offense manslaughter, the injury must have been done. 
 Intentional unlawful killing in a rage is murder, and not manslaugh- 
 ter. Anger, thirsting for the blood of an enemy, is in itself an ear- 
 mark of murder, no less than revenge or brutal ferocity ; but when 
 it is provoked by the wrongful act of the person slain, who thus 
 brings upon himself the fatal blow, given in the first outbreak of rage, 
 caused by himself, the offense is manslaughter, not only because the 
 voluntary act is, in a way, compelled by an ungovernable rage, but 
 also because the victim is the aggressor, and his wrong, although it 
 cannot justify, may modify, the nature of the homicide thus induced. 
 The court therefore correctly told the jury that, to make the offense 
 manslaughter, the injury claimed as a provocation must have in fact 
 been done. Our law of homicide recognizes no provocation as legally 
 competent to so modify the cruelty of intentional, unlawful killing as 
 to reduce the offense to manslaughter, except the provocation involved 
 in an actual and adequate injury and insult. A different rule of provo- 
 cation applies when the killing is not intentional, as where it results 
 from the use of force, not intended, and not naturally adapted, to 
 e death. But, where the killing is both intentional and unlawful, 
 the only legal provocation is that given by an actual injury and insult. 
 The decision of the majority of the court is based on the assertion 
 that the intentional unlawful killing of an innocent person who has 
 done the slayer no wrong may be manslaughter, or, in other words,
 
 Sec. 4) VOLUNTARY MANSLAUGHTER. 385 
 
 an actual injury done to the slayer is not essential in order to reduce 
 such killing from murder to manslaughter. I find no authority in our 
 law for this assertion. During the three centuries in which the dis- 
 tinction between the crime of murder and that of manslaughter has 
 been developed and established, there is, so far as I have been able 
 to discover, no dictum of jurist or decision of court which has failed 
 to recognize the necessity of an actual injury and insult given by the 
 killed and suffered by the killer as necessary to the reduction of in- 
 tentional, unlawful killing from murder to manslaughter. It seems 
 to me unquestionable that the decision involves a clean-cut and radical 
 change of existing law. I think such a change would be unwise, and 
 inconsistent with the considerations of public policy that underlie our 
 law of homicide. It is, however, unnecessary to discuss the wisdom 
 of the change, for it is one within the province of the Legislature, and 
 not of the court, to make. 
 
 I think there is no error, and that a new trial should be denied. 1 
 
 For involuntary manslaughter, see chapter IV. 
 
 i Parts of the opinion of Baldwin, J., and Hamersley, J., are omitted. 
 
 "The seventh request was: 'If the jury believed that the defendant as- 
 sisted in killing Ouloosian, but under threats against the defendant by 
 Kasper. as shown by the evidence, then they are to find the defendant guilty 
 of manslaughter.' This request was refused. We have already seen that the 
 Intentional killing of another under threats is held to be murder. The only 
 ground upon which the request is urged — indeed, the only one upon which it 
 can be urged — is that fear, like passion, may so cloud the mind as to eliminate 
 malice. The comparison of the two elements of action is not apt. One's 
 ownjiassion is not a defense to reduce a crime, unless it is caused by provoca- 
 tion, like a fight or a gross indignity, between the victim and the assailant 
 Passion induced by a third person would be no defense to a homicide. So fear 
 induced by one person is no defense to a defendant who kills another under 
 its influence. This, of course, is a general rule; but it applies to this case. 
 There might be cases, like a panic, where a general fear might not only 
 reduce, but even excuse, an unlawful act: but such is not this case. If one 
 has sufficient power of mental action to put his own chances of safety 
 against the life of an innocent third person, his act can neither be entitled 
 to excuse nor reduction on the ground of fear. Something more, at least, 
 must appear than is shown in this request or in this case." Stiness, C J in 
 State v. Nargashian, 26 R. I. 299, 58 Atl. 953, 106 Am. St. Rep. 715 (1904). 
 Mik.Cb.L.— 25
 
 
 , . y 
 
 
 386 
 
 LARCENY. 
 
 (Ch. 13 
 
 CHAPTER XIII. 
 LARCENY. 
 
 SECTION 1.— PROPERTY THE SUBJECT OF LARCENY, 
 
 It is to be known that theft is, according to the laws, the fraudu- 
 lent handling of another person's property with the intention of steal- 
 ing, against the will of the lord whose property it is. I say with the 
 intention, for without the intention of stealing it is not committed. 
 
 Bracton, f. 134b. 
 
 The definitions of larceny are none of them complete. Mr. East's is 
 the most so ; but that wants some little explanation. His definition 
 is "the wrongful or fraudulent taking and carrying away by any per- 
 son of the mere personal goods of another, from any place, with a 
 felonious intent to convert them to his (the taker's) own use, and make 
 them his own property, without the consent of the owner." This is 
 defective in not stating what the definition of "felonious" in this defini- 
 tion is. It may be explained to mean that there is no color of right 
 or excuse for the act, and the intent must be to deprive the owner, not 
 temporarily, but permanently, of his property. 
 
 Parke, B., in Reg. v. Holloway, 2 Car. & K. 916 (1819). 
 
 
 ANONYMOUS. 
 
 (Kind's Bench, 1478. Y. B. 18 Edw. IV, 8, pi. 7.) 
 
 A man was indicted in the King's Bench for having, on Monday 
 next before the Feast of the Purification of the Blessed Virgin Mary, 
 10 Edw. IV, at C, in the county of M., with force and arms bro ken 
 into a dove cote and feloniously taken twenty young pigeons. And 
 this was adjudged a good indictment, notwithstanding the exception 
 because the property in the said pigeons would be at all times 
 in him to whom the dove cote belonged, inasmuch as they could not 
 go out, but he could take them at any time at his pleasure; but it is 
 e if lie were indicted for the taking of old pigeons, because 
 the law does not adjudge the propert) in them in any one, for they 
 go about the country and lie cannot take them at pleasure; and. there- 
 fore, if he were indicted f<>r this the indictment is void. Also, if he 
 be indicted for taking pike <>r tenches out of a pond or trunk feloni- 
 ously the indictment is good causa qua supra, otherwise is it if they
 
 '3*7' 
 
 iff ' f* 
 
 t 
 
 313' f' 
 
 b. 3 ^ 7. r^ - 
 
 
 L- 
 
 

 
 -<-y^-\ f ^ 
 

 
 Sec. 1) PROPERTY THE SUBJECT OF LARCENY. 387 
 
 be taken in the river; 1 the law is the same as to young goshawks 
 which cannot go or fly, hatched in my own park, it is felony, but it 
 is otherwise as to other goshawks ; and so note the difference when 
 the property is mine at my pleasure and when it is not. 2 
 
 ■ -A 
 
 REX v. SEARING. 
 
 (Court for Crown Cases Reserved, 1818. Russ. & R. 350.) 
 
 The prisoner was tried before Mr. Baron Wood, at the Lent Assizes 
 for Hertfordshire, in the year 1818, for larceny, in stealing "five 
 live tame ferrets confined in a certain hutch," of the price of 15 shil- 
 lings, the property of Daniel Flower. 
 
 T he jury fou nd the prisoner guilty; but on the authority of 2 East, 
 P. C. 614, where it is said that ferrets (among other things) are con- 
 sidered of so base a nature that no larceny can be committed of them, 
 the learned Jtrdge respited the judgment until the opinion of the 
 judges could be taken thereon. 
 
 It appeared in evidence that ferrets are valuable animals, and those 
 in question were sold by the prisoners for 9 shillings. 
 
 In Easter Term, 1818, the judges met and considered this case. 
 They were of opinion that ferrets (though tame and salable) could 
 not be the subject of larceny, and that the judgment ought to be ar- 
 rested. 8 
 
 i Accord: Rex v. Hudson, 2 East, P. C. Gil (1781) ; State v. Krider, 78 N. C. 
 481 (1ST8). 
 
 2 "These pheasants, having been hatched by hens, and reared in a coop, 
 were tame pheasants at the time they were taken, whatever might have been » 
 their destiny afterwards. Being thus, the prosecutor had such a property in 
 them that they would become the subject of larceny." Channell, B., in Reg. 
 v. Cory, 10 Cox, C. C. 23 (1864). Accord: Reg. v. Shickle, 11 Cox, C. C. 180 
 (1868). 
 
 s "Under decisions of English and American courts, made upon the common- 
 law definition of larceny, Mr. Bishop classes the following animals, when re- 
 claimed, as the subjects of the offense: Pigeons, doves, hares, conies, deer, 
 swans, wild boars, cranes, pheasants, partridges and fish suitable for food, 
 including oysters. To which might be safely added wild turkeys, geesr. 
 ducks, etc., when reclaimed./pDf those animals of which there can be no lar- 
 ceny, though reclaimed, he puts down the following: Dogs, cats, bears, foxes, 
 apes, monkeys, polecats, ferrets, squirrels, parrots, singing birds, martins, ami 
 coons. In the South, squirrels are in common use as food animals, and the 
 hunters of all climates regard bears as good food. Iowa is credited with 
 the decision (Warren v. State, 1 G. Greene, 106) that coons are unfit for food, 
 and therefore, by the common law, not the subject of larceny, when reclaimed. 
 Among the colored people of the South the coon, when fat in the fall and 
 winter, is regarded as a luxury, and the Iowa decision would not be regarded 
 by them as sound law or good taste. On the whole subject, see 2 Bishop on 
 Criminal Law (6th Ed.) §§ 757, 7S1, and notes." English, C. J., in Haywood v. 
 State, 41 Ark. 479 (1SS3). 
 
 "Hales, J., * * * is said (Stanford, p. 275) to have 'thought it no felony 
 to take a diamond, rubie, or other such stone (not set in gold or otherwise) 
 because they be not of price with all men, howsoever some do hold them 
 both dear and precious.' " 3 Steph. Hist. Cr. L. 143.
 
 1 
 
 388 LARCENY. (Ch. 13 
 
 CARVER v. PIERCE. 
 
 (King's Bench, 1648. Style, 66.) 
 
 Carver brings an acti on upo n the c ase against Pierce for speaking 
 these words of him, Thou art a thief, for thou hast stolen my dung; 
 and hath a verdict. The defendant moved in arrest of judgment, that 
 the words were not actionable : for it is not certain whether the dung 
 be a chattel, or part of the freehold, and if so, it cannot be theft to 
 take it, but a trespass, and then the action will not lie. 
 
 Bacon, Justice. Dung is a chattel and may be stolen. 
 
 But Roll, Justice, answered : Dung may be a chattel, and it may 
 not be a chattel ; for a heap of dung is a chattel, but if it be spread 
 upon the land it is not, and said, the word thief here is actionable 
 alone, and there are no subsequent words to mitigate the former words, 
 for the stealing of dung is felony if it be a chattel. 
 
 Bacon, Justice, said: It doth not appear in this case of what value 
 the dung was, and how shall it be known whether it be felony or petty 
 larceny. 
 
 To this Roll answered : The words are scandalous notwithstand- 
 ing, and actionable, though the stealing of the dung be not felony. 
 
 The rule was to move it again Tuesday next. 
 
 REX v. WESTBEER. 
 
 (King's Bench, 1740. 1 Leach [4th Ed.l 12.) 
 
 At the Old Bailey January Session, 1739, Thomas Westbeer was 
 i ndic ted before Lord Chief Baron Comyns, and Mr. Justice Chapple, 
 fur stealing a parchment writing, purporting to be a commission, dated 
 in the reign of Queen Anne, impow ering the commissioners therein 
 named (pursuant to an order which had been previously made in 
 chancery, in a cause between Lord Chesterfield and John Cantrell and 
 others) to enter and ascertain the boundaries of the manors of Brad- 
 bury and Hartsherne, and to certify how high the water of Furnace 
 Pool ought to be kept, etc. And also one other parchment writing, 
 purporting to be a return made to the said commission. The prop- 
 erty was laid to be the goods of our sovereign lord the king, and of 
 the value of four shillings. 1 
 
 'I'm. COURT gave no opinion, whether these were properly laid to be 
 the goods of the kin^-, nor whether the law as to this case was altered 
 by 8 lien. VI, c. 12; but thev were unanimously of opinion that these 
 parchment writings concerned the realty, and thai therefore the pris- 
 oner was not guilty of the felony charged in the indictment.' 
 
 i Part <>f tills case is omitted. 
 
 2 in Seled Pleas <>( the Crown (Sel. Boc.) pi. 82, Is reported for the year 
 1200 .'in appeal for robbery of the title deeds to land.
 
 Sec. 1) PROPERTY THE SUBJECT OF LARCENY. 389 
 
 HOSKINS v. TARRENCE. 
 
 (Supreme Court of Indiana, 1S40. 5 Blackf. 417. 35 Am. Dec. 12D.) 
 
 Dewey, J. This was an action of slander . The words laid in the 
 declaration to have been spoken by the defendant of the plaintiff, 
 among others, are: "He broke into my room and stole the key." 
 Plea, not guilty. Verdict and judgment for plaintiff. There was evi- 
 dence that the defendant said of the plaintiff: "He broke into a room 
 of my house, and stole the key out of the door." The ^defendant 
 moved the court to instruct the jury "that the key in the lock" of the 
 door of a house, and belonging thereto, is part of the realty, and not 
 the subject of larceny, unless the same is first severed from the realty 
 by one act, and then stolen by another and distinct act." The court 
 refused the charge. 1 
 
 It is true that the keys of a house follow the inheritance; and the 
 writers who lay down this doctrine make no distinction between keys 
 in the lock and those in the pockets of their owners. They are, never- 
 theless, not fixtures, but personal property, which, from a rule of law 
 founded on public convenience, like title papers, go with the land. And 
 as no decision, so far as we know, has as yet ranked them among the 
 articles upon which larceny cannot be committed, and as we see no 
 good reason for carrying the doctrine of exemption farther than it 
 has already gone, we feel at liberty, upon the authority of Rex v. 
 Hedges, supra, as well as on principle, to decide that as "personal 
 goods" they are within the purview of our statute relative to crime 
 and punishment, and are the subjects of theft. Rev. St. 1838, p. 207. 
 
 The circuit court committed no error in refusing the instruction to 
 the jury which was asked for by the defendant. 
 
 Per Curiam. The judgment is affirmed, with 1 per cent, damages 
 and costs. 
 
 REGINA v. WATTS. 
 
 (Court of Criminal Appeal, 1854. 6 Cox, a C. 304.) 
 
 The prisoner, William Mote Watts, was indicted at the Quarter 
 Sessions for the North Riding of Yorkshire, on the 2d of June, 1853, 
 for stealing on the 3d day of May, 1853, a piece of paper, the property 
 of the prosecutor, Francis Patteson, and was convicted. The piece 
 of paper found to have been stolen had written upon it, when taken 
 by the prisoner, as alleged in the indictment, an agreement b etween 
 the prosecutor and the prisoner, signed by each of them. The agree- 
 ment could not be produced, but secondary evidence of it was re- 
 ceived, from which it appeared that the prisoner contracted thereby 
 to build two cottages for the prosecutor, for a sum specified, accord- 
 
 i Part of this case is omitted.
 
 \Jh 
 
 390 LARCENY. (Ch. 13 
 
 ing to certain plans and specifications, and the latter agreed to pay 
 two installments, being part of the price agreed on, at certain stages 
 of the work, and the remainder on completion ; and it was stipulated 
 that any alterations that might take place during the progress of the 
 building should not affect the contract, but should be decided upon 
 by the employer and employed, previous to such alterations taking 
 place. Under this instrument the work was commenced and con- 
 tinued. At the time when it was stolen by the prisoner, as alleged, 
 the work was going on under it. Nevertheless it was proved at the 
 trial that when the agreement was stolen the prisoner had been paid 
 all the money which he was entitled to under it, although there was 
 money owing to him for extras and alterations. The agreement was 
 unstamped. The counsel for the prisoner objected, at the close of 
 the case for the prosecution, that from the evidence it was clear that, 
 at the time the piece of paper referred to in the indictment was taken 
 by the prisoner, it was, in reality, a subsisting and valid agreement, 
 and therefore not the subject of larceny (as a piece of paper only) 
 at common law. The question for the opinion of the court is whether, 
 under the circumstances above stated, the prisoner could be lawfully 
 convicted of feloniously stealing a piece of paper, as charged in the 
 indictment. No judgment was passed on the prisoner, and he was 
 discharged on recognizance of bail to appear and receive judgment 
 when required. 
 
 This case was before the court on the 12th November, 1853, and 
 was sent back to be restated, and an alteration was made in it to the 
 effect that the agreement was one which required a stamp. 1 
 
 Price, for the prosecution. First, this was not a chose in action 
 at all, because whatever was due under the agreement had been paid. 
 2 Bl. 397. 
 
 Crompton, J. But the work was still going on. 
 Martin, B. And an action might be maintained upon it for not 
 building according to the specification. 
 
 Price. Then the want of stamp prevents it from being a chose in 
 action. 
 
 MaulE, J. Strictly speaking, a chose in action is an incorporeal 
 right, and, of course, therefore, cannot be the subject of larceny; 
 but the rule means that those instruments which are the evidence of 
 a chose in action arc nol the subject of larceny. 
 
 Price. When the objection is taken at nisi prius, it is enough to 
 say that the proper evidence of the contract is not produced. Jardine 
 v. Payne, 1 B. & Vd. 670. It is unnecessary- to say that the unstamped 
 paper is not a chose in action ; but in truth it is not, because the stamp 
 laws prevent any court from regarding it as an available security. If 
 
 i The argument of Bllra for the prisoner and the concurring opinions of 
 Alderson, B., and Crdmpton, Coleridge, Maule, and Pintt, JJ. f and tiie dis- 
 sent in- opinions of Parke, r. . are omitted. Wlghtman, Cresswell, and Wil- 
 iinins, .i.i. , and Martin, B., concurred with the Chief Justice.
 
 Sec. 1) PROPERTY THE SUBJECT OF LARCENY. 391 
 
 the prisoner had been indicted for stealing a valuable security, this 
 unstamped agreement would not have proved it. In R. v. Hart, 6 
 Car. & P. 106, the prisoner was indicted for stealing blank acceptances 
 on unstamped paper; but it was held they were not within the stat- 
 ute, either as bills or orders for payment of money or securities for 
 money, and the charge of stealing the stamps and paper was disposed 
 of on the ground that there was no sufficient taking. Other cases of 
 imperfect securities were: R. v. Perry, 1 Car. & K. 725, 1 Cox, C. 
 C. 222, and R. v. Vyse, 1 Moo. C. C. 218. In Perry's Case, the pris- 
 oner was charged with stealing a check, described in another count 
 as a piece of paper, and he was convicted on the latter count. 
 
 Alderson, B. Because the check was absolutely void, having been 
 issued unstamped beyond the limited distance. It never could be made 
 a good check. 
 
 Price. The judges do not appear to have decided that the check 
 was void, but to have thought that, whether it was so or not, the 
 prisoner might be convicted of stealing the paper. Vyse's Case is 
 also like this, because there the things stolen were bank notes, which 
 had been paid in London, and which one of the partners of the bank- 
 ing firm was carrying back into the country to be reissued, and it was 
 held that they were properly described as unstamped pieces of paper 
 for the purposes of the indictment, although some of the judges 
 doubted whether they were or were not valuable securities. R. v. 
 Clark, R. & Ry. 181, is to the same effect. 
 
 MaulE, J. The notes were nothing but paper until reissued, be- 
 cause they derived their whole operation from being delivered to 
 some one. 
 
 Price. In a court of justice the writing upon the unstamped paper 
 in the present case bound nobody. 
 
 Maule, J. It is the signature of the parties which binds. 
 
 Price. Lastly, even assuming this unstamped agreement to be a 
 chose in action, the prisoner is rightly convicted. All the writers on 
 Criminal Law, in stating the rule that a chose in action is not the 
 subject of larceny, refer to the Year Books (10 Edw. IV, 14a; 49 
 Hen. VI, fols. 9, 10), as the authority upon which it rests. It ap- 
 pears, however, by reference to those books, that the ground of the 
 rule was that choses in action could not be valued, and at that time 
 there was no felony unless the things stolen were of the value of 12 
 pence ; but, the law as to value being abolished, cessante ratione cessat 
 lex, there may be a difference as to title deeds, which savor of the 
 realty. R. v. Walker, Ry. & M. 155. At all events, the thing stolen 
 in this case was a piece of paper; and so the indictment is proved. 
 
 Bliss, in reply. The general rule cannot be disputed. 
 
 Lord Campbell, C. J. We are all of the opinion that, except so 
 far as the Legislature has interfered with it, the rule is that docu- 
 ments which are the evidence of a chose in action are not the subject 
 of larceny.
 
 392 LARCENY. (Ch. 13 
 
 Bliss. The cases cited are quite distinguishable. R. v. Vyse and 
 R. v. Clark were cases of satisfied notes ; but here there is no ground 
 for saying that the agreement was at an end. 
 
 Lord Campbell, C. J. I am of opinion that this conviction is 
 wrong. I think that the prisoner could, not, under the circumstances 
 stated, be indicted for stealing a piece of paper. If the agreement 
 had been stamped, it seems to be allowed, notwithstanding the in- 
 genious argument of Mr. Price, that an indictment for stealing a 
 piece of paper could not be supported, because then it would be what 
 is commonly called a chose in action, and by the common law larceny 
 cannot be committed of a chose in action. Strictly speaking, the in- 
 strument, of course, is not a chose in action, but evidence of it, and 
 the reason of the common-law rule seems to be that stealing the evi- 
 dence of the right does not interfere with the right itself. Jus non 
 in tabulis. The evidence may be taken, but the right still remains. 
 At all events, whatever be the reason of the rule, the common law 
 is clear that for a chose in action larceny cannot be supported; and 
 the Legislature has repeatedly recognized that roler-by— making spe- 
 cial provision with regard to instruments, which are choses in action, 
 and of which, but for those enactments, larceny could not be com- 
 X mitted. As to this not being a chose in action, because all that w as 
 due had been paid upon it, it appears that the agreement is still execu- 
 tory, and might be used by either side to prove their rights. Then 
 comes the objection as to its not being stamped; but, though it is not 
 stamped, I am of opinion that it is an agreement. There is a very 
 clear distinction between instruments which without a stamp are 
 wholly void, and those which may be rendered available at any mo- 
 ment, by having a stamp impressed upon them. There are many 
 cases in which an unstamped agreement is considered evidence of 
 a right. When the question arises at nisi prius, as soon as it appears 
 that the agreement was reduced into writing, parol evidence is ex- 
 cluded, because the written instrument is the proper and only evi- 
 dence; and Bradley v. Bardsley, 14 M. & W. 873, is strong to show 
 that the court considers an unstamped agreement evidence of a right. 
 To an action on an agreement a plea that it was not stamped is 
 clearly bad, for the agreement may be stamped even pending the 
 trial, and may then be given in evidence, as the stamping reflects 
 back to the period of the making of the instrument. I agree that we 
 must look at the state of the instrument at the time of the larceny 
 committed; but it then had a potentiality of being rendered available, 
 and it was evidence of an agreement. It was therefore evidence of 
 a chose in action, and not the subject of larceny. 
 
 Conviction reversed. 1 ' 
 
 2 Compare Reg. v. ivn-y. 1 Oar. ft K. 725 (1845). 
 
 Conviction of larceny baa been upheld Cor the stealing of the following 
 property: 
 
 Illuminating gas, Reg. v. White, 8 Cox, 0. 0. 218 (1863); Commonwealth 
 r. Shaw, i Allen (Mass.) 808, 81 Am. Dec. 706 (1862); State v. Well man, 34
 
 Sec. 1) PROPERTY THE SUBJECT OF LARCENY. 393 
 
 REGINA v. TOWNLEY. 
 
 (Court of Criminal Appeal, 1871. 12 Cox, C. C. 59.) 
 
 Case reserved for the opinion of this court by Mr. Justice Black- 
 burn. 
 
 The prisoner and one George Dunkley were indicted before me 
 at the Northampton Spring Assizes for stealing 126 dead rabbits. 
 
 The evidence showed that Mr. Hollis' keepers, about 8 in the morn- 
 ing on the 23d of September, discovered 126 dead and newly killed 
 rabbits and about 400 yards of net concealed in a ditch, in the forest, 
 behind a hedge, close to a road passing through the forest. 
 
 The rabbits were some in bags and some in bundles, strapped to- 
 gether by the legs, and had evidently been placed there as a place of 
 deposit by those who had netted the rabbits. 
 
 The keepers lay in wait, and about a quarter to 11 on the same 
 day Townley and a man, who escaped, came in a cab driven by Dunk- 
 ley along the road. Townley and the man who escaped left the cab 
 in charge of Dunkley, and came into the forest, and went straight 
 to the ditch where the rabbits were concealed, and began to remove 
 them. 
 
 The prisoners were not defended by counsel. 
 
 It was contended by the counsel for the prosecution that the rabbits 
 on being killed and reduced into possession by a wrongdoer became 
 the property of the owner of the soil, in this case the queen (Blades 
 v. Higgs, 7 L. T. [N. S.] 798, 831), and that, even if it was not lar- 
 ceny to kill and carry away the game at once, it was so here, because 
 the killing and carrying away was not one continued act. 
 
 1 Hale, P. C. 510, and Lee v. Risdon, 7 Taunt. 191, were cited. 
 
 The jury, in answer to questions from me, found that the rabbits 
 had been killed by poachers in Selsey Forest, on land in the same oc- 
 cupation and ownership as the spot where they were found hidden. 
 
 That Townley removed them, knowing that they had been so killed, 
 but that it was not proved that Dunkley had any such knowledge. 
 
 I thereupon directed a verdict of not guilty to be entered as re- 
 garded Dunkley, and a verdict of guilty as to Townley, subject to a 
 case for the Court of Criminal Appeal. 
 
 It is to be taken as a fact that the poachers had no intention to 
 abandon the wrongful possession of the rabbits which they had ac- 
 quired by taking them, but placed them in the ditch as a place of de- 
 posit till they could conveniently remove them. 
 
 Minn. 221, 25 N. W. 395 (1885) ; Woods v. People. 222 111. 293, 78 N. E. 607, 
 7 L. R. A. (N. S.) 520, 113 Am. St. Rep. 415 (390G) ; water supplied in pipes 
 t*> consumers, Ferens v. O'Brien, 15 Cox, C. C. 332 (1SS3) ; intoxicating liquor 
 kept for sale contrary to law, Commonwealth v. Coffee, 9 Gray (Mass.) 139 
 (1857); State v. May, 20 Iowa, 305 (I860); implements used for gambling, 
 Bales v. State, 3 W. Va. 685 (1SGS). Contra: State v. Wilmore, 9 Ohio Dec. 
 (Reprint) 61 (1883). 
 Electricity has been made the subject of larceny by statute in some states.
 
 394 LARCENY. (Ch. 13 
 
 The question for the court is whether on these facts the prisoner 
 was properly convicted of larceny. 
 
 The prisoner was admitted to bail. 
 
 Colin Blackburn. 
 
 No counsel appeared to argue on either side. 
 
 Bovill, C. J. (after stating the facts). The first question that 
 arises is as to the nature of the property. Live rabbits are animals 
 ferae naturae, and are not the subject of absolute property, though 
 at the same time they are a particular species of property ratione 
 soli, or rather the owner of the soil has the right of taking and killing 
 them, and as soon as he has exercised that right they become the 
 absolute property of the owner of the soil. That point was decided 
 in Blades v. Higgs, supra, as to rabbits, and in Lonsdale v. Rigg, 26 
 L. J. 196, Ex., as to grouse. In this case the rabbits, having been 
 killed on land the property of the crown, and left dead on the same 
 ground, would therefore, in the ordinary course of things, have be- 
 come the property of the crown. But before a person can be con- 
 victed of larceny of a thing not the subject of larceny in its original 
 state, as, e. g., of a thing attached to the soil, there must not only 
 be a severance of the thing from the soil, but a felonious taking of 
 it also after such severance. Such is the doctrine as applied to steal- 
 ing trees and fruit therefrom, lead from buildings, fixtures, and min- 
 erals ; but, if the act of taking is continuous with the act of severance, 
 it is not larceny. The case of larceny of animals ferae naturae stands 
 on the same principle. Where game is killed and falls on another's 
 land, it becomes the property of the owner of the land ; but the mere 
 fact that it has fallen on the land of another does not render a person 
 taking it up guilty of larceny, for there must be a severance between 
 the act of killing and the act of taking the game away. In the present 
 case we must take it that the prisoner was one of the poachers, or 
 connected with them. Under these circumstances we might come 
 to the conclusion that it was a continuous act, and that the poach- 
 ers netted, killed, packed up, and attempted to carry away the rab- 
 bits in one continuous act, and therefore that the prisoner ought 
 not to have been convicted of larceny. 
 
 Martin, B. I am of the same opinion. It is clear that if a 
 person kills rabbits, and at the same time carries them away, ho is 
 not guilty of larceny. Then, when he kills rabbits, and goes and 
 hides them, and comes back to carry them away, can it be said that 
 is larceny? A passage from Hale's P. C. 510 — "If a man comes to 
 . or the k-ad off a church or house, and sever it, and after 
 aboul an hour's time or so come and fetch it away, it is felony, be- 
 e the act is nol continuated, bul interpolated, and in that inter- 
 val the property lodgeth in the righl owner as a chattel, and so it 
 was argued by the Court of King's Bench (9 Car. I), upon an in- 
 dictment for stealing the lead off Westminster AJbbey" was relied 
 on by the prosecution. There is also a dictum of Gibbs, C. J., to 
 the same effect, in Lcc v. Risdon, 7 Taunt. 191. I am not insensible
 
 Sec. 1) PROPERTY THE SUBJECT OF LARCENY. 395 
 
 to the effect of those dicta ; but here we must take it as a fact that 
 the poachers had no intention to abandon possession of the rabbits, 
 but put them in the ditch for convenience sake; and I concur in 
 t hinking that the true law is that, when the poachers go back for the 
 purpose of taking them away, in continuation of the original inten- 
 tion, it does not amount to larceny. 
 
 BramwEll, B. Our decision does not appear to me to be con- 
 trary to what Lord Hale and Gibbs, C. J., have said in the passages 
 referred to. If a man, having killed rabbits on the land of another, 
 gets rid of them because he is interrupted, and then goes away, and 
 afterwards comes back to remove the rabbits, that is a larceny, and 
 so if, on being pursued, he throws them away; and it is difficult to 
 perceive any distinction where the owner of a chattel attached to the 
 freehold finds it on his land severed, and the person who severed it 
 having abandoned it afterwards comes and takes it away. It is 
 in those cases so left as to be in the possession of the true owner, 
 and the act is not, as Lord Hale expresses it, continuated. In this 
 case, however, the rabbits were left by the poachers as trespassers 
 in a place of deposit, though it happened to be on the land of the 
 owner; and it is just the same as if they had been taken and left 
 at a public house, or upon the land of a neighbor. If they had been 
 left on the land of a neighbor, or at a public house, could it have 
 been said to be larceny? Clearly not; and, if not, why is it larceny 
 because the poachers left them in a place of deposit on the owner's 
 own land? It seems to me that the case is not within the dicta of 
 Lord Hale and Gibbs, C. J., but that here the act was continuous, 
 and that there was an asportation by the poachers to a place of de- 
 posit, where they remained not in the owner's possession. 
 
 ByeES, J. I cannot say that I have not entertained a doubt 
 in this case; but upon the whole I think that this was not larceny. 
 The wrongful taking of the rabbits was never abandoned by the 
 poachers, for some of the rabbits were in their bags. It could hardly 
 be said that if a poacher dropped a rabbit, and afterwards picked 
 it up, that could be converted into larceny; yet that would follow 
 if the conviction were upheld. 
 
 Blackburn, J. I am of the same opinion. Larceny has al- 
 ways been defined as the taking and carrying away of the goods and 
 chattels of another person ; and it was very early settled, where the 
 thing taken was not a chattel, as where a tree was cut down and 
 carried away, that was not larceny, because the tree was not taken 
 as a chattel out of the owner's possession, and because the severance 
 of the tree was accompanied by the taking of it away. The same 
 law applied to fruit, fixtures, minerals, and the like things, and statutes 
 have been passed to make stealing in such cases larceny. Though in 
 the House of Lords, in Blades v. Higgs, it was decided that rabbits 
 killed upon land became the property of the owner of the land, it 
 was expressly said that it did not follow that every poacher is 
 guilty of larceny, because, as Lord Cranworth said: "Wild animals,
 
 396 LARCENY. (Ch. 13 
 
 whilst living, though they are, according to Lord Holt, the property 
 of the owner of the soil on which they are living, are not his personal 
 chattels, so as to be the subject of larceny. They partake, while 
 living, of the quality of the soil, and are, like growing fruit, con- 
 sidered as part of the realty. If a man enters my orchard and fills 
 a wheelbarrow with apples, which he has gathered from ray trees, 
 he is not guilty of larceny, though he has certainly possessed him- 
 self of my property; and the same principle is applicable to wild 
 animals." The principle is as old as 11 Year Book, par. 33, where 
 it is reported that a forester who had cut down and carried away 
 trees could not be arraigned for larceny, though it was a breach of 
 trust; but it was said it would have been a different thing if the lord 
 of the forest had cut down the trees and the forester had carried 
 them away. Then that would have been larceny. So that, in the 
 case of wild animals, if the act of killing and reducing the animals 
 into possession is all one and continuous, the offense is not larceny. 
 The jury have found in this case that the prisoner knew all about 
 the killing of the rabbits, and that they were lying in the ditch. It 
 is clear that, during the_ three -iiours t hey were lying ther e, no one 
 had any physical possession of them, and that they were still left on 
 the owner's soil ; but I do not see that that makes any difference. 
 Then there is the statement from Hale's P. C. 510, where it is said 
 that larceny cannot be committed of things that adhere to the free- 
 hold, as trees, or lead of a house, or the like, yet that the Court 
 of King's Bench decided that, where a man severed lead from West- 
 minster Abbey, and after about an hour's time came and fetched it 
 away, it was felony, because the act is not continuous but interpolat- 
 ed ; and Lord Hale refers to Dalton, p. 166, c. 103. And Gibbs, C. 
 ]., expressed the same view very clearly in Lee v. Risdon. Now, 
 if that is to be understood as my Brother Bramwell explained, 
 I have no fault to find with it; but if it is to be said that the mere 
 fact that the chattel having been left for a time on the land of the 
 owner has thereby remained the owner's property, 'and that the 
 person coming to take it away can be convicted of larceny, I cannot 
 ee with it as at present advised. If we are to follow the view- 
 taken by my Brother Bra m well of these authorities, they do not 
 apply here, for no one could suppose that the poachers ever part- 
 ed with the possession of the rabbits. I agree that, in point of 
 principle, it cannot make any difference that the rabbits were left 
 an hour or so in a place of deposit on the owner's land. The passage 
 from Lord Hale may be understood in the way my Brother Bram- 
 v. i.u. has interpreted it, and, if so, the facts do not bring this case 
 within it. 
 Conviction quashed.'' 
 
 • in Beg, v. rdcy, 26 l. R. (Ireland) 2!>t> (1889), the facta were that Foley, 
 b former tenant, re-entered the premises and cu1 grass belonging to the land- 
 lord- Three days later be again entered, raked the grass, and carted it 
 away. On a case reserved n conviction for larceny of the grass was afliruied;
 
 Sec. 1) PROPERTY THE SUHJECT OF LARCENY. 397 
 
 COMMONWEALTH v. STEIMLING. 
 
 (Supreme Court of Pennsylvania, 1893. 156 Pa. 400, 27 Atl. 297.) 
 
 Mr. Justice Williams. 1 It appeared on the trial that Bower, the 
 prosecutor, was the owner of a farm which was crossed by Mahanoy 
 creek. Some distance up the stream coal mines were in operation and 
 had been for many years. The culm and waste from the mines and 
 breaker, which had been thrown into, or piled upon the bank of, the 
 creek, had been carried down the stream by the current and the floods, 
 and deposited in the channel and along the shores in considerable 
 quantities. This material, having been abandoned by its original own- 
 ers, belonged to him on whose land the water left it. The water, drop- 
 ping the heavy pieces first and carrying the smaller particles and dust 
 along in the current, served as a screen ; and as the result of this 
 process considerable quantities of coal suitable for burning were lodged 
 along the channel and the banks of the stream throughout its course 
 over the prosecutor's farm. The defendant, descending the stream 
 with a flatboat, entered upon the lands of Bower and began to gather 
 coal from the surface. He was provided with a scoop or shovel made 
 of strong wire or iron rods, with which he gathered up the coal. The 
 sand and gravel passed through the meshes of the scoop, leaving the 
 pieces of coal within it. When the gravel was all sifted out, the cleaned 
 coal was emptied upon the flatboat. This process was continued un- 
 til a boat load was obtained. The boat was then towed or pushed to 
 some bins on the shore opposite to Bower's house, and the coal was 
 transferred from the boat to the bins. This was repeated until from 
 8 to 12 tons of coal had been gathered, cleaned, deposited on the boat, 
 transported to the bins, and unloaded. This coal was afterwards de- 
 livered to purchasers, or taken for consumption, from the bins. Here 
 was a taking with intent to carry away and convert, a carrying 
 away, and an actual conversion, which the commonwealth held sus- 
 tained the indictment for larceny. The learned judge, however, in- 
 structed the jury that the process of collecting, cleaning, loading 
 
 Palles, C. B., dissenting. Gibson, J., said: "Townley's Case only decides: (1) 
 That, where there is evidence of actual possession continuing, the fact that 
 there is an interval of time between the taking and carrying away does not 
 constitute larceny where the wrongdoer's intention is not abandoned and the 
 transaction is in substance continuous ; (2) that chattels may be in the thief's 
 possession, though left on the owner's land. The expressions 'abandon' and 
 •intention to abandon,' found in the report of Townley's Case, L». R. 1 C. C 
 R. 315, though not inappropriate when read with reference to the special 
 facts of that case, are liable to misconstruction if employed in reference to 
 such a case as that before us. Where chattels, after severance, are left on 
 the property of the true owner, no matter what the wrongdoer's intention 
 may be, he cannot escape the common-law doctrine, if his possession is not 
 in fact continuous. Continuity of intention is not the equivalent of continuity 
 of possession. The transaction here was not continuous, and the conviction 
 is right." 
 
 i Part of the opinion is omitted.
 
 398 LARCENY. (Ch. 13 
 
 upon the flatboat, transporting to the bins, and unloading the coal 
 into them must be regarded as one continuous act, like the act of 
 him who tears a piece of lead from a building and carries it off, or 
 who, passing an orchard, plucks fruit and takes it away, and that 
 the defendant was, therefore, a trespasser only. The distinction in 
 the mind of the learned judge was that between real and personal 
 estate. The coal lying upon the surface he held to be real estate. 
 The lifting it up in the shovel was on this theory a severance, which 
 forcibly changed its character and made it personal. The loading 
 into the flatboat, the transportation to the bins, and unloading of the 
 boat, all of which acts were done within the lines of the prosecu- 
 tor's land, and occupied hours of time for each boat load, were so 
 connected with the severance as to make but a single act. For this 
 reason he held that the defendant was guilty of a trespass only. 
 The common law did distinguish between things that are connected 
 with or savor of the real estate and those that are personal goods. 
 An apple growing upon a tree was connected with the land by means 
 of the tree that bore it, and so held to partake of the nature of the 
 land, and to be real estate. One who plucked it from the tree, and 
 at once ate or carried it away, was therefore a trespasser; but if 
 he laid it down, and afterwards carried it away, so that the taking 
 and the asportation were not one and the same act, then, if the 
 carrying away was done animo furandi, the elements of larceny were 
 present. 
 
 Blackstone tells us, in volume 4, p. 233, of the Commentaries, that 
 larceny cannot be committed of things that savor of the realty, be- 
 cause of "a subtility in the legal notions of our ancestors." He then 
 explains the subtile distinction as follows: "These things (things 
 that savor of the realty) were parcel of the real estate, and there- 
 fore, while they continued so, could not by any possibility be the 
 subject of theft, being absolutely fixed and immovable. And if they 
 were severed by violence, so as to be changed into movables, and at 
 the same time, by one and the same continued act, carried off by 
 the person who severed them, they could never be said to be taken 
 from their proprietor in their newly acquired state of mobility." But 
 he explains that, if the act of severance and that of carrying away 
 be separated, so that they do not constitute "one and the same con- 
 tinued act," the subtile distinction between personal goods and 
 those that savor of the real estate ceases to protect the wrongdoer 
 from a criminal prosecution, and a charge of larceny can be sustain- 
 ed. The guj Stion whether this coal, lying loose upon the surface, 
 like other drift of the stream, was real or personal estate, does not 
 
 i in to have been raised in the court below, and it is not before us. 
 
 The real question pre ented is whether this case upon its facts 
 is one for the application of the common-law rule. Have we here 
 a severance and an asportation that constitute "one and the same 
 continuous act?" If the picking of the coal from the surface be
 
 Sec. 1) PROPERTY THE SUBJECT OF LARCENY. 390 
 
 treated as an act of severance, we have next the act of cleaning and 
 sifting, then the deposit of the cleaned coal upon the flatboat little 
 by little, then the transportation of the boat load to the bins, and then 
 the process of shoveling the coal from the boat into the bins. 
 
 The acts, occupying considerable time for each boat load, were 
 all done within the inclosures of the prosecutor. It is as though 
 one should come with team and farm wagon into his neighbor's 
 corn field and pluck the ears, load them into the wagon, and, when 
 the wagon would hold no more, draw the corn away to his own 
 corn house, and then return again, and continue the process of har- 
 vesting in the same manner until he had transferred his neighbor's 
 crop to his own cribs. If such acts were done under a bona fide 
 claim of title to the crop, they would not amount to larceny; but, if 
 done animo furandi, all the elements of larceny would be present. 
 In the case before us it is conceded that the coal belonged to Bower, 
 and was in his possession as part of his real estate. The defend- 
 ant entered his lands for the purpose of collecting coal and carry- 
 ing it away. He makes no bona fide claim of title, no offer to pur- 
 chase, sets up no license, but rests on the proposition that, like the 
 man who plucks an apple from a tree and goes his way, he is liable 
 only as a trespasser. If this be true, he could gather the coal from 
 Bower's land as often as the stream made a sufficient deposit to 
 justify the expenditure of time necessary to gather, clean, transport, 
 and put it in bins. Upon the same principle he might gather all the 
 crops growing on Bower's farm as they matured, and by hauling 
 each load away when it was made up, defend against the charge 
 of larceny, on the ground that the gathering from the tree, the stalk, 
 or the hill, the loading into wagons, and the carrying of the loads 
 away, though occupying hours for each load and many days for the 
 crop, was "one and the same continuous act" of trespass. We can- 
 not agree to such an extension of the common-law rule, but are of 
 the opinion that this case should have gone to the jury on the exist- 
 ence of the animo furandi. 2 
 
 2 See, also, Bradford v. State, 6 Lea (Tenn.) 634 (1881). 
 
 There can be no larceny of abandoned property. In Sikes v. State (Tex. 
 Cr. App.) 28 S. W. G88 (1S041, a conviction of the larceny of two turbine 
 wheels that had been left by the owner for nine years on the right of way of 
 the carrier by whom they had been transported, was upheld; and in Reg. v. 
 Edwards, 13 Cox, C. O. 384 (1877), the Court for Crown Cases Reserved affirm- 
 ed a conviction for the larceny of three pigs, which having been bitten by a mad 
 dog, had been killed and buried by the prisoner for the owner. 
 
 Estravs are subjects of larceny. See Crockford v. State, 73 Neb. 1, 102 
 N. W. 70 (1905).
 
 p I - y | 
 
 400 LARCENY. (Ch. 13 
 
 SECTION 2.— THE OWNERSHIP OF THE PROPERTY. 
 
 HAYNES' CASE. 
 
 (Leicester Assizes, 1577. 12 Coke, 113.) 
 
 Note, in the Lenten Assize, held at Leicester 11 and 12 Jac, the 
 case was, that one William Haynes had digged up the several graves 
 of three men and one woman in the night, and had taken their wind- 
 ing sheets from their bodies, and buried them again; and it was 
 resolved by the justices at Serjeants Inn, Fleet street, that the prop- 
 erty of the sheets remain in the owners, that is, in him who had 
 property therein, when the dead body was wrapped therewith, for 
 the dead body is not capable of it, as in 11 Hen. IV. If apparel be 
 put upon a boy, this is a gift in the law, for the boy hath capacity 
 to take it ; but a dead body being but a lump of earth hath no ca- 
 pacity ; also it is no gift to the person, but bestowed on the body 
 for the reverence towards it, to express the hope of resurrection. 
 Also a man cannot relinquish the property he hath to his goods, un- 
 less they be vested in another ; and accordingly at the said assizes, 
 he was severally indicted for taking each of these sheets: and the 
 first indictment was of petty larceny, for which he was whipped: 
 and at the same assizes he was also indicted for the felonious tak- 
 ing the three other sheets, for which he had his clergy, and so es- 
 caped the sentence of death, which he well deserved, for this inhuman 
 and barbarous felony. 1 
 
 ANONYMOUS. 
 
 (Common Pleas, 1510. Keilw. 1G0. pi. 2.) 
 
 REDE, C. J., said, that if one rob me of my goods and another 
 rob him of the same goods, I have an appeal of robbery against 
 the first that robbed me, and against the second also, for the prop- 
 erty in the goods was at all times in me. 2 
 
 i Bt 1 Jac. I, c. 12, made it felony to steal bodies for purposes of witch- 
 craft. 
 
 2 Part of Uiis case is omitted.
 
 Sec. 2) THE OWNERSHIP OF THE PROPERTY", 401 
 
 WARD v. PEOPLE. 
 (Court of Errors of New York, 1843. 6 Hill, 144.) 
 
 Ward was indicted for petit larceny in stealing a quantity of 
 butter, stated in the indictment to have been the property of J. Flagg. 
 Flagg testified that he was the owner of the butter which was stol- 
 en from his possession, and that he bought it of the master of a 
 canal boat. Ward thereupon proposed to ask the witness whether 
 he did not steal the butter on board the boat, or whether he and the 
 master of the boat did not steal it together, which question was ob- 
 jected to by the public prosecutor and overruled by the court. 1 
 
 Walworth, Chancellor. The objection was properly sustained 
 upon the ground that the answer to the question was not relevant 
 to the matter of the issue, as it was not material to know whether 
 Flagg became possessed of the butter wrongfully or otherwise. The 
 plaintiff in error was therefore rightfully convicted, * * * and 
 the judgment of the court below should be affirmed. 
 
 Foster, Senator, said, among other things, that the Supreme Court 
 erred in overruling the question put to Flagg. Conceding that the 
 witness might have refused to answer, because of the danger of ex- 
 posing himself to criminal punishment, was this a ground upon which 
 either the court who tried the cause or the public prosecutor could 
 interfere? No. The privilege was that of the witness, and he alone 
 had the right to avail himself of it. ,..' Nor was the question irrele- 
 vant. It called for an answer which might have gone far towards 
 discrediting Flagg with the jury. \f Besides, it was relevant by way 
 of disproving a material allegation in the indictment, viz., that the 
 article stolen' was the property of Flagg. If he had nothing but 
 a possession acquired by theft, the property was not in him, but 
 remained where it was before the theft was committed. Common- 
 wealth v. Morse, 14 Mass. 217. An act of this kind, so far from 
 divesting the property of the owner, does not even change the pos- 
 session, in contemplation of law. Per Gould, J., in The King v. 
 Wilkins, 1 Leach's Cr. Law, 520, 522. It is true the proposition is 
 laid down by East and some other elementary writers of high re- 
 pute, that "if A. steal goods of B., and after C. steal the same goods 
 from A., C. is a felon both as to A. and B. ; and he may be indict- 
 ed of stealing the goods of B." 2 East's Cr. Law, p. 654, c. 16, § 
 90. East cites Hale, who states the proposition thus: "If A. steals 
 the horse of B., and after C. steals the same horse from A., in this 
 case C. is a felon both as to A. and as to B., for by the theft by A., 
 B. lost not the property, nor in law the possession of the horse or 
 other goods; and therefore in that case C. may be appealed of fel- 
 ony by B., or indicted of felony, quod cepit et asportavit the horse 
 
 i The statement is abridged from the opinion of Walworth, Ch., and part of 
 the opinion is omitted. 
 
 Mik.Cr.L.— 26
 
 402 LARCENY. (Ch. 13 
 
 of B." 1 Hale's P. C. 507. The single expression made use of by 
 these authors, that "C. is a felon both as to A. and B.," may indeed 
 furnish an inference favorable to the doctrine maintained by the 
 court below ; but if we take the whole passage together, especially 
 as quoted from Hale, and construe it in reference to the leading 
 idea which the writer intended to illustrate, it furnishes no suffi- 
 cient warrant for saying that, in the instance put, C. might be in- 
 dicted and convicted as for stealing the property of A. On the 
 contrary, Hale expressly affirms that B. "lost not the property, nor 
 in law the possession" ; and this accords with all just views of the 
 nature of property and the mode of its acquisition. I have been 
 unable to find any adjudged case where an indictment for larceny 
 has been sustained which alleged the property to be in one who had 
 himself stolen it, and who had no other pretence of right to the pos- 
 session. Nor do I believe that such a doctrine can be established 
 without interfering with some of the most familiar principles of the 
 common law. 
 
 I think the judgment of the court below should be reversed. 
 
 On the question being put, "Shall this judgment be reversed?" 
 the members of the court voted as follows : 
 
 For reversal: Senators Bartut, Dixon, Foster, Strong, and 
 Wright — 5. 
 
 For affirmance: The Chancellor, and Senators Bockee, Dennjs- 
 
 TON, .b RAN KLIN, HARD, LAWRENCE, LOTT, MlTCHELL, PLATT, PORTER, 
 
 Putnam, Rhoads, Scott, and Scovn. — 14. 
 
 ANONYMOUS. 
 (King's Bench, 1429. Y. B. 7 lien. VI, 42, pi. 18.) 
 
 It was said if I bail certain goods to you to keep and afterward 
 I feloniously retake them, I shall be hanged, notwithstanding the 
 property was in me. And Norton said that this was law. 1 
 
 HENRY v. STATE. 
 
 (Knprome Court of Georgia, 1900. 110 Ga. 750, 30 S. E. 65, 78 Am. St. Rep. 137.) 
 
 Lewis, J. Sherman Henry was placed upon trial in the city 
 court of Albany, upon an accusation charging him with entering the 
 dwelling house of one Tempie Mack with intent to steal, and with 
 wrongfully, fraudulently, and privately taking and carrying away 
 therefrom, with intent to steal the same, one suit of clothes and one bi- 
 cycle, of the value of $15, the i" I onal property of said Mack. To this 
 
 > Part of tills case only is printed.
 
 Sec. 2) THE OWNERSHIP OF THE riiOrERTY. 40'.) 
 
 accusation he pleaded not guilty. Briefly stated, the following is the 
 substance of the testimony introduced on the trial : Tempie Mack, the 
 prosecutrix, testified that the accused came to her to engage board. 
 She replied to him that he would have to pay her in advance, as she 
 had lost so much by boarders. Accused replied that he had a trunk 
 full of clothes and a bicvele, and that he would deliver them to her 
 as security for the board. This conversation took place during the 
 day, and that night the accused came back to the home of the prose- 
 cutrix, bringing with him his trunk and bicycle, and said: "Here is 
 a suit of clothes that cost me $8, and a bicycle, that I turn over to 
 you as security for my board." She accordingly received these 
 chattels, and had them placed in a room in her house occupied by her 
 son. The accused also was assigned to this room, where he lodged as 
 a boarder. He kept the key to his trunk, wore the clothes, and rode 
 the bicycle occasionally. In the trunk was a new suit of clothes. 
 He agreed to pay $2 per week for board, and he remained in the house 
 as a boarder a little over three weeks, for which he was due $7. 
 A demand was made on him for the money. lie left the house, 
 leaving the bicycle and trunk therein. Two or three days afterward 
 the landlady missed the bicycle. She then examined the trunk, and 
 found the new suit of clothes had also been taken away. It fur- 
 ther appeared from the testimony that the accused had sold the 
 bicycle, and was wearing the new suit of clothes in another place, 
 where he was engaged in work. The accused introduced no evidence, 
 but made a statement, in which he admitted that he told the land- 
 lady his trunk and clothes would be responsible for his board, but 
 denied delivering them to her, stating that he kept the key to his 
 trunk, wore his clothes, and rode his bicycle whenever he wished; 
 said he did not intend to steal anything, but he put on the new suit 
 of clothes to attend to a job in Arlington, where he was working 
 when arrested, and simply desired to make some money so that he 
 could pay his board. The judge of the city court, before whom the 
 case was tried without a jury, after hearing the evidence, found the 
 accused guilty, w hereupon he made a motion for a new trial, on the 
 gene ral grounds that the verdict was contrary to law and evidence. 
 To" the judgment of the court overruling this motion the accused ex- 
 ceptsT" 
 
 "There can be no question about the soundness of the proposition 
 that property stolen from a bailee may be charged in an indictment 
 to be his property, and authorities have even gone to the extent of 
 holding that property stolen from one who had himself stolen it 
 could be alleged as his. It is equally true that property in the hands 
 of a bailee may be stolen by the g e neral owner. Clark's Criminal 
 Law, 21G-7; 18 Am. & Eng. Enc. L. 598, 599. In the case of Wim- 
 bish v. State, 89 Ga. 294, 15 S. E. 325, it was decided by this court 
 that "the ownership of personal property, in an indictment for lar- 
 ceny, may be laid in a bailee having possession of the property when
 
 404 LARCENY. (Ch. 13 
 
 it was stolen, though the bailment was gratuitous." In Davis v. 
 State, 76 Ga. 721, it appears that the accused was indicted for 
 obstructing an officer in the execution of legal process. It seems that, 
 after a levy of a fi. fa. by the sheriff, the defendant in fi. fa. privately 
 took and carried the property levied upon to an adjoining county. 
 It was held by a majority of this court that this did not constitute 
 the offense with which he was charged, and on page 722, Justice Bland- 
 ford says: "In this case that which the plaintiffs in error did was 
 not to oppose the officer, but it was to defeat the execution of the 
 process by committing the crime of simple larceny. * * * The 
 plaintiffs in error should have been indicted for simple larceny, and 
 I not for the offense for which they were indicted." From these 
 principles it necessarily follows that, when property has been deliver- 
 ed by the owner to one as a pledge to secure a debt, the pledgee has 
 sufficient interest in the same to maintain a prosecution against any 
 one, even the general owner, by charging that the property belong- 
 ed to him, the pledgee. We do not understand, however, that this 
 principle is denied. Counsel for plaintiff in error seeks a reversal 
 in this case upon the idea that the testimony does not show such a 
 delivery of the property in question as would constitute a valid pledge 
 in law. We think there is sufficient testimony for the judge to infer 
 an actual delivery by the accused of this property as security for the 
 payment of his board. The fact that he was permitted to use it does 
 not deprive the pledgee in this case of the right to its custody and 
 control. Nothing can be gathered from the evidence in the record 
 to indicate that she ever consented to such a use or disposition of 
 the same as to absolutely deprive her of such possession. A por- 
 tion of the property pledged was actually sold to another party by 
 the pledgor without her knowledge and consent; and the circumstances 
 developed by the evidence touching the manner of its disposition by 
 the pledgor were amply sufficient for the judge to infer that he had 
 a fraudulent purpose of depriving his creditor of this security. This 
 identical question was made and passed upon by the Supreme Court 
 of Iowa in the case of Bruley v. Rose, reported in 57 Iowa, 651, 11 
 X. \Y. 629. It was there decided: "A pledgee has a special property 
 in the thing pledged, and a pledgor who takes the property from 
 the pledgee's possession with the felonious design of depriving such 
 pledgee of his security may be guilty of larceny." In that case it 
 appeared that Bruley had been charged with larceny of a span of 
 
 es which he had bought from Rose. For these horses Bruley 
 was indebted t" Rose in the sum of $45.60, and to secure the payment 
 of this balance it was claimed that Bruley delivered the horses to 
 
 • as a pledge, ami afterwards gained po> n of them under 
 
 pretetl i and with the felonious design of depriving him of 
 
 his security. It appeared that Rose did give him permission to take 
 
 the horses for a particular purpose. It was accordingly held that,
 
 Sec. 2) THE OWNERSHIP OF THE PROPERTY. 405 
 
 if he took them for a fraudulent purpose, he was guilty of the offense 
 of larceny. 
 
 Applying these principles to the facts in this case, we think the 
 court did right in overruling the motion for a new trial. 1 
 
 Judgment affirmed. All concurring, except Fish, J., absent. 
 
 ANONYMOUS, 1443. 
 
 (Fitzherbert, Abr. Corone, 455.) 
 
 Note. — By Forster, that a woman cannot steal the goods of her 
 husband. Porter concurred. 
 
 REGINA v. KENNY. 
 (Court of Criminal Appeal, 1877. 13 Cox, C. C. 397.) 
 
 Case reserved for the opinion of this court by the Recorder of 
 Chester. 
 
 At the Quarter Sessions for the city and borough of Chester and 
 county of the same city, held before me on Monday, the 8th of Jan- 
 uary, 1877, William Edward Kenney was tried upon an indictment 
 which charged him in the first count with stealing, on the 26th of 
 August, 1876, certain money to the amount of £143, one purse, one 
 silver watch, one child's cloak, one scarf, one American box, one 
 prayer book, two money bags, and other articles of the moneys,, 
 goods, and chattels of Edward Gurn, and in the second count with 
 feloniously receiving on the day and year aforesaid the moneys, 
 goods, and chattels aforesaid, well knowing the same to have been 
 feloniously stolen. 
 
 The counsel for the prosecution relied on the second count of the 
 indictment and contended, on the authority of the cases of Reg. v. 
 Deer, L. & C. 240, 9 Cox, C. C. 225, and Reg. v. Featherstone, Dears. 
 C. C. 369, 6 Cox, C. C. 376, that the wife by adultery with the prisoner 
 in August, at Chester, "determined her quality of wife," and in then 
 converting her husband's goods to her own use, was guilty of lar- 
 ceny, and that the prisoner consequently could be guilty of receiving. 2 
 
 Kelly, C. B. I am of the opinion that the conviction must be 
 quashed. This is not a case of stealing; but the prisoner has been 
 convicted of receiving the property well knowing it to have been 
 stolen. It may well be that when a wife has taken away the goods 
 
 i Accord: State v. Nelson, 36 Wash. 126, 78 Pac. 790, 68 L. R. A. 2S3, 104 
 Am. St. Rep. 945 (1904). Compare State v. Mazyck, 3 Rich. Law (S. C.) 291 
 (1832) ; Adams v. State, 45 N. J. Law, 448 (18S3). 
 
 2 Part of this case is omitted.
 
 -■ 
 
 406 LARCENY. (Ch. 13 
 
 of her husband with a view to an ulterior adulterous intercourse, 
 and her adulterer has participated in the act of taking them away, 
 he may be indicted for larceny. This view seems to have passed 
 through the mind of Lord Campbell, C. J., in Reg. v. Featherstone ; 
 but there is nothing in that case to show that a wife can be indicted 
 for stealing the property of her husband. In the present case th« 
 prisoner is not convicted for stealing the property of the husband 
 and it is possible, if he had been, the question might have arisen 
 whether he could have been convicted upon the evidence. I am 
 far from saying that he could not. That is not the case here; but 
 the prisoner has been convicted of receiving, and the case fails in 
 showing that the property could have been stolen by any other person 
 than the prosecutor's wife. By the law of England a wife cannot 
 steal her husband's property. ~If the wife has not stolen the prop- 
 erty, there was no evidence of the property having been stolen at 
 all, and therefore the conviction of the prisoner for receiving the 
 property, well knowing it to be stolen, cannot be sustained. 
 
 Lush, J. I am of the same opinion. The property, if stolen in 
 this case, must have been stolen by the wife. It is admitted that the 
 wife did not steal the property when she left Burslem, as a wife 
 cannot steal her husband's property, and they are one person in the 
 eye of the law, and neither can be a witness for or against the other 
 in criminal proceedings. At what time, then, did she become a thief? 
 It is said when she became an adulteress. But how can that be? 
 Adultery affords ground for a divorce, but the mere act of adultery 
 does not make a difference in the status of husband and wife per se, 
 and constitute the wife a thief if she takes away her husband's prop- 
 erty. Therefore, if the property was not stolen by the wife in this 
 case, the prisoner could not be guilty of receiving it well knowing 
 it to be stolen. 2 
 
 Conviction quashed. 8 
 
 2 Mellor, J., and Huddleston, B., delivered concurring opinions, and Denman, 
 J., concurred. 
 
 The law has been changed in England by statute. See Reg. v. Streeter, 
 p. 5 I-':. 
 A-CCord: Slate v. Banks, 48 Ind. 107 (1S74). In Beaslcy v. State, 138 End. 
 552, 38 N- E. 35, -HI Am. St. Bep. 418 (1894), it was held that under the stat- 
 utes enabling a married woman to hold property, the husband could be con- 
 victed <>r larceny of the wife's goods. Contra: Thomas v. Thomas, 51 UJ 
 1G2 (1889); State v. Parker, 3 Ohio Dec. (reprint), 551 (1SS2).
 
 Sec. 2) THE OWNERSHIP OF THE PROPERTY. 407 
 
 REX v. BRAMLEY. 
 (Court for Crown Cases Reserved, 1822. Russ. & R. 478.) 
 
 The prisoner was tried upon a charge of burglary, before Mr. 
 Clarke, the king's counsel, at the Spring Assizes for the county of 
 Derby, in the year 1822. 
 
 The indictment charged the prisoner with a burglary in the dwelling 
 house of one Thomas Noon, and with stealing a box, two purses, 
 £22. 10s. in silver, 6s. 3d. in copper, a promissory note for the pay- 
 ment of ilO, and 18 promissory notes for the payment of £1 each, 
 the property of the said Thomas Noon. In another count the prop- 
 erty was stated to belong to Sarah Sisson, Ann Fretwell, and Ann 
 Noon. 
 
 The box and the other articles (all of which were in the box when 
 taken by the prisoner) were the property of a Female Friends' 
 Society, established under St. 33 Geo. Ill, c. 54, and the rules, 
 orders, and regulations of which had been exhibited to, and allowed 
 and confirmed by, the sessions, as directed by that statute. The 
 society held their meetings at a public house kept by Thomas Noon, 
 the person mentioned in the indictment; and the funds of the society 
 were kept in the box, which, with the funds it contained, was always 
 deposited in a bed chamber in the house of Thomas Noon after the 
 meetings of the society had ended. It was directed by the rules of 
 the society that the box should remain in the custody of the land- 
 lord of the house, or any other person whom the society should ap- 
 point; he being responsible for whatever effects were lodged therein. 
 
 The persons In whom the property was laid irT one of Lhc eoiiiils 
 of the indictment, namely, Sarah Sisson, Ann Fretwell and Ann 
 Noon, were stewardesses of the society, appointed according to its 
 rules. The box (as directed also by the rules of the society) had 
 three different locks upon it, and each stewardess had one key. The 
 stewardesses were (by the same rules) to serve for one year, and 
 then to resign their keys, cash, and books to the new stewardesses. 
 
 The society met on the evening of the night in which the offense 
 was committed, and the Sox with the funds in it was, after the 
 meeting broke up, deposited in the usual place in Thomas Noon's 
 house, from whence it was afterwards taken by the prisoner, who 
 gained admission to the chamber by means of a ladder and breaking 
 open the window. 
 
 The prisoner had been for some time a member of the society. 
 One of the rules of the society was that each member should pay six- y ^- 
 
 pence to the stock every fourth Monday, and that if a member failed 
 to pay for four successive nights she should be excluded. The 
 prisoner had failed to pay for four successive nights, the last of 
 which was the night the property was taken: but no order for 
 excluding her had been made by the society.
 
 408 larceny. (Ch. 13 
 
 The prisoner was convicted, but a case was reserved for the opinion 
 of the judges upon the question whether, considering the situation 
 in which the prisoner stood with respect to this property, the con- 
 viction was proper. 
 
 In Easter Term, 1822, the judges (ten of them being present) were 
 clear that, as the landlord was answerable to the society for the 
 property, the conviction was right. 
 
 
 
 REX v. WILLIS. 
 (Court for Crown Cases Reserved, 1832. 1 Mood. 375.) 
 
 The prisoner, the wife of John Willis, was tried and convicted be- 
 fore Mr. Justice Park, at the Spring Assizes for the county of Wilts, 
 in the year 1833, for stealing 25 sovereigns, 10 half sovereigns, 8 
 half crowns, and 40 shillings, the property of William Orchard and 
 30 or 40 others, and amongst them the prisoner's husband, all of 
 whom were named in the indictment. 
 
 This was a case of a friendly society held at the public house kept 
 by the prisoner's husband, he being a member of the society, and 
 the box containing the property was always left in the house of the 
 husband of the prisoner; but the box had four locks, kept by the 
 stewards, of whom he was not one. 
 
 The facts of the case were quite clear, the wife having broken open 
 this box and stolen a great deal of money to pay some debts of a 
 former husband, and the jury convicted her to the learned judge's 
 satisfaction as to the facts; but the learned judge thought it right 
 to ask the opinion of the judges whether a wife can be convicted of 
 larceny in stealing money in which her husband has a joint property, 
 and deferred the sentence. 
 
 The learned judge referred the judges to 1 Hale, P. C. 514, Russell 
 on Crimes, p. 19, Rex v. Bramley, Russ. & Ry. 478, and to the first 
 case in the Old Bailey Sessions Papers for the January Sessions, 
 1818, tried before the learned judge, in the presence of Lord Tenter- 
 den, then Mr. Justice Abbott. 
 
 In Easter Term, 1833, this case was considered at a meeting of 
 the judges, and they were of opinion that the conviction was wrong, 
 and the prisoner was discharged.
 
 V^A. ^ 
 
 Sec. 3) THE CAPTION AND ASPORTATION. 409 
 
 SECTION 3.— THE CAPTION AND ASPORTATION. 
 
 CHERRY'S CASE. 
 
 (Court for Crown Cases Reserved, 1781. 2 East, P. C. 550.) 
 
 William Cherry was indicted for stealing a wrapper and some 
 pieces of linen cloth; and it appeared that the linen was packed up 
 in the wrapper in the common form of a long square, which was laid 
 lengthway in a wagon, that the prisoner set up the wrapper on one 
 end in the wagon for the greater convenience of taking the linen out, 
 and cut the wrapper all the way down for that purpose, but was ap- 
 prehended before he had taken anything. All the judges agreed that 
 this was no larceny, although his intention to steal was manifest; 
 for a carrying away, in order to constitute felony, must be a removal 
 of the goods from the place where they were, and the felon must, for 
 the instant at least, have the entire and absolute possession of them. 1 
 
 REGINA v. SIMPSON. 
 (Court for Crown Cases Reserved, 1854. 1 Dears. 421.) 
 
 The following case was reserved for the opinion of the Court 
 of Criminal Appeal by W. H. Bodkin, Esq., acting as assistant 
 judge of the Middlesex Sessions. 
 
 William Simpson was tried before me at the Sessions of the Peace 
 for the county of Middlesex, in July, 1854, upon an indictment which 
 charged him with having stolen from the person of Michael Map- 
 per a gold watch and chain, his property. The watch was carried 
 by the prosecutor in the pocket of his waistcoat, and the chain, 
 which was at one end attached to the watch, was at the other end 
 passed through the buttonhole of his waistcoat, where it was kept 
 by a watch key, turned so as to prevent the chain slipping through. 
 The prisoner took the watch out of the prosecutor's pocket, and 
 forcibly drew the chain out of the buttonhole; but his hand was 
 seized by the prosecutor's wife, and it then appeared that, although 
 
 i In the conference on this case, Mr. Baron Eyre mentioned a case before 
 him where goods in a shop were tied to a string which was fastened by one 
 end to the bottom of the counter, a thief took up the goods and carried 
 them away towards the door as far as the string would permit, and this he 
 held not to be a severance, and consequently no felony, 2 East, P. C. 556. 
 And the principle of this case was recognized in Wilkinson's Case, 1 Hale, 
 508, where one had his keys tied to the strings of his purse in his pocket, 
 which the prisoner attempted to take from him and was detected with the 
 purse in his hand, but the strings of the purse still hung to the owner's 
 pocket by means of the keys, and this was ruled to be no asportation; for 
 the purse could not be said to be carried away, as it still remained fastened 
 to the place where it was before. Leach, C. C. 321, note. 

 
 rtlO LARCENY. (Ch. 13 
 
 the chain and watch key had been drawn out of the buttonhole, the 
 point of the key had caught upon another button, and was thereby 
 suspended. It was contended for the prisoner that he was guilty of 
 an attempt only; but I thought that, as the chain had been removed 
 from the buttonhole, the felony was complete, notwithstanding its 
 subsequent detention by its contact with the other button. The jury 
 found the prisoner guilty of the felony; and, a former conviction 
 having been proved, he was sentenced to penal servitude for four 
 years. The execution of the sentence was respited, and the pris- 
 oner was committed to the House of Correction, Coldbath Fields, 
 where he now is. I have to pray the judgment of this honorable 
 court whether the facts above stated justify the conviction in point 
 of law. 
 
 This case was argued on the 11th of November, 1854, before 
 Jervis, C. J., Alderson, B., Coleridge, J., Martin, B., and Crow- 
 dl:r, J. 
 
 Payne appeared for the crown, and Parry for the prisoner. 
 
 Parry, for the prisoner. The conviction was wrong. There may 
 have been a simple larceny, but the asportation was not sufficient 
 to warrant a conviction for stealing from the person. The watch 
 chain, though drawn out of the buttonhole, caught on the button, 
 and the property never was entirely severed from the prosecutor's 
 person. 
 
 Alderson, B. Whilst it was between the button and the button- 
 hole, where was it? 
 
 Parry. It was about the person of the prosecutor. The watch 
 always remained about his person, and its ultimate condition was 
 that it was suspended from the button. It never was finally and 
 entirely removed from the person of the prosecutor. In Rex v. 
 Wilkinson, 1 Hale, P. C 508, where a thief took from the pocket 
 of the owner a purse, to the strings of which some keys were tied, 
 and was apprehended with the purse in her hand, but still hanging 
 by means of the keys to the pocket of the owner, it was ruled not 
 to be larceny, for the prosecutor had still, in law, the possession of 
 the purse, and licet cepit non asportavit. 
 
 Coleridge, J. In that case there never was a severance, here there 
 was, and the case expressly speaks of the "subsequent detention" of 
 chain. 
 
 Parry. It is not necessary for me to go so far as that case, be- 
 cause it may be conceded that in this case there was a sufficient as- 
 portation to support a charge of simple larceny. 
 
 \i im.ism.v, l:. The nearest case to the present one seems to be 
 Rex v. Thompson, 1 Moo. 78. 
 
 Tarry. In thai case a pocketbook was drawn by the prisoner out 
 of the own- ide coat pocket, and lifted one inch above the top 
 
 of the pocket, and then, tin- hand of the thief being caught, it fell 
 back into the pocket, and, though all the judges held it larceny, they 
 were divided whether it was a stealing from the person, as the
 
 Sec 3) THE CAPTION AND ASPORTATION. 411 
 
 pocketbook remained about the person of the owner; and the ma- 
 jority of the judges held that it was not. 
 
 Alderson, B. How do you distinguish this case from Rex v. 
 Lapier, 1 Leach, C. C. 60, in which the earring was torn from a 
 lady's ear and fell upon her curl? 
 
 Parry. There the forcing it from her ear was a severance from 
 her person, but I contend that in this case there was no actual 
 severance. There is a case of Rex v. Farrell, 1 Leach, C. C. 3G2, 
 where it appeared that the prisoner stopped the prosecutor as he 
 was carrying a feather bed on his shoulders, and told him to lay it 
 down or he would shoot him, and the prosecutor accordingly laid 
 the bed on the ground, but the prisoner was apprehended before he 
 could remove it from the spot where it lay; and the judges were 
 of opinion that the offense of robbery was not completed. All the 
 cases show the wide distinction between a simple larceny and a steal- 
 ing from the person. The distinction is one which ought to be con- 
 sidered strictly in favor of a prisoner, and, although this case may 
 be on the very confines of a severance, I contend that no actual sev- 
 erance ever took place. 
 
 Payne, for the crown, was not called upon. 
 
 Jervis, C. J. We all are of opinion that the conviction was right. 
 This case is in no respect like that mentioned by Lord Hale, where 
 the prisoner took the purse attached by its strings to the keys, which 
 entangled in the pocket of the prosecutor. In that case there was 
 at no moment the slightest severance from the person; but this is 
 precisely similar to Lapier's Case, in which the jewel was torn from 
 the ear of the prosecutrix and dropped amongst her curls. The ear 
 in Lapier's Case is like the buttonhole in this, and the curl is like 
 the button below. The watch was no doubt temporarily, though 
 but for one moment, in the possession of the prisoner. In Thomp- 
 son's Case there seems to have been some confusion in the use of 
 the expression "about the person." The words of the act are "from 
 the person," and, with submission to the majority of the judges who 
 held the asportation in that case not to be sufficient, I think the 
 minority were right. The judges in that case may have thought 
 that the outer coat which covered the pocket formed a protection 
 to the pocketbook; but we must not fritter away the law by refin- 
 ing upon nice distinctions in a way to prevent our decisions from 
 being consistent with common sense. 
 
 Aederson, B. To constitute the offense there must be a removal 
 of the property from the person ; but a hair's breadth will do. 
 
 The other learned judges concurred. 
 
 Conviction confirmed. 1 
 
 i Accord: As to simple larceny. Eckels v. State. 20 Ohio St. 508 (1S70) ; 
 Harrison v. People, 50 N. Y. 518. 10 Am. Rep. 517 (1872); State v. Ckainbt ;-. 
 22 W. Va. 779, 4G Am. Rep. 550 (1SS3) ; Files v. State, 36 Tex. Cr. R. 20G, 
 3G S. W. 93 (1S90).
 
 412 LARCENY. (Cll. 13 
 
 REGINA v. WALLIS. 
 
 (Cambridgeshire Assizes, 1848. 3 Cox, C. C. 67.) 
 
 The indictment charged the prisoner with stealing five pints of 
 porter, the property of the Eastern Counties Railway Company, at 
 Cambridge. The evidence showed that the prisoner had made a 
 hole in the barrel through which the porter flowed into a can on 
 the ground, and that a witness rushed in and snatched up the can 
 while the porter was running into it in the presence of the prisoner. 
 
 At the close of the case for the prosecution — 
 
 Naylor, for the prisoner, submitted that there was no sufficient 
 asportavit; there was a stealing and taking, but no carrying away. 
 R. v. Cherry, 2 East, P. C. 556. So in a case at Cambridge, where 
 a man indicted for horse-stealing had his hand on the halter for the 
 purpose of leading him away, the judge held that not to be a suffi- 
 cient asportavit. If the prisoner were answering a charge of ma- 
 licious injury to property, the answer would be that there was a 
 can there for the purpose of carrying the beer away. 
 
 Coltman, J. I think there was a sufficient asportavit of what 
 was run out, but I will reserve the point. 
 
 Wells, for the prosecution. 
 
 Verdict— Guilty. 
 
 REGINA v. WHITE. 
 
 (Court of Criminal Appeal, lSr.3. G Cox, C. C. 213.) 
 
 The prisoner was indicted at the last Quarter Sessions for Ber- 
 wick-upon-Tweed, for stealing 5,000 cubic feet of carburetted hy- 
 drogen gas, of the goods, chattels, and property of Robert Oswald 
 and others. Mr. Oswald was a partner in the Berwick Gas Com- 
 pany, and the prisoner, a householder in Berwick, had contracted 
 with the company for the supply of his house with gas, to be paid 
 for by meter. The meter, which was hired by the prisoner of the 
 company, was connected with an entrance pipe through which it 
 received the gas from the company's main in the street, and an exit 
 pipe through which the gas was conveyed to the burners. The 
 prisoner had the control of the stopcock at the meter, by which the 
 was admitted into it through the entrance pipe, and he only 
 paid the company, and he had only to pay them, for such quantity 
 of gas as appeared by the index of the meter to have passed through 
 it. The entrance and exit pipes were the property of the prisoner. 
 Tli-- prisoner, to avoid paying for the full quantity of gas consum- 
 ed, and without the consent or knowledge of the company, had 
 ,-,\ i, i be in erted a connecting pipe with a stopcock upon it in- 
 to the entrance and exit pipes, and extending between them; ami,
 
 Sec. 3) THE CAPTION AND ASPORTATION. 413 
 
 the entrance pipe being charged with the gas of the company, he 
 shut the stopcock at the meter, so that gas could not pass into it, 
 and opened the stopcock in the connecting pipe, when a portion of 
 the gas ascended through the connecting pipe into the exit pipe, and 
 from thence to the burners, and was consumed there, and the gas 
 continued so to ascend and be consumed until by shutting the stop- 
 cock in the connecting pipe the supply was cut off. This operation 
 was proved to have taken place at the time specified by the prose- 
 cutor. It was contended for the prisoner that, the entrance pipe, 
 into which the gas passed from the main, being the property of the 
 prisoner, he was in lawful possession of the gas by the consent of 
 the company as soon as it had been let into his entrance pipe out of 
 their main, and that his diverting the gas in its course to the meter 
 was not an act of larceny. I told the jury that if they were of opin- 
 ion, on the evidence, that the entrance pipe was used by the com- 
 pany for the conveyance of the gas by the permission of the pris- 
 oner, but that he had not by his contract any interest in the gas or 
 right of control over it until it passed through the meter, his prop- 
 erty in the pipe was no answer to the charge, that there was nothing 
 in the nature of gas to prevent its being the subject of larceny, and 
 that, the stopcock on the connecting pipe being opened by the pris- 
 oner, and a portion of the gas being propelled through it by the 
 necessary action of the atmosphere, and consumed at the burners, 
 there was a sufficient severance of that portion from the volume of 
 gas in the entrance pipe to constitute an asportavit by the prisoner, 
 and that if the gas was so abstracted with a fraudulent intent he 
 was guilty of larceny. The jury answered the questions put to them 
 in the affirmative, and found the prisoner guilty. I postponed judg- 
 ment, taking recognizance of bail according to the statute for the 
 appearance of the prisoner at the next sessions to receive judgment 
 if this court should be of opinion that he was rightly convicted. 1 
 
 Lord Campbell, C. J. I think that the conviction ought to be 
 affirmed, and that the direction of the learned Recorder was most 
 accurate. Gas is not less a subject of larceny than wine or oil; but 
 is there here a felonious asportation? No one who looks at the 
 facts can doubt it. The gas, no doubt, is supplied to a vessel which 
 is the property of the prisoner; but the gas was still in the posses- 
 sion of the company. Then, being in the possession of the com- 
 pany, and their property, it is taken away animo furandi by the 
 prisoner. If the property remains in the company until it has pass- 
 ed the meter, which is found, to take it before it has passed the 
 meter constitutes an asportation. If the asportation was with a 
 fraudulent intent, and this the jury also have found, it was larceny. 
 As to the act of Parliament, the Legislature has, for convenience 
 
 i The argument of Ballantine for the prisoner Is omitted.
 
 414 LARCENY. (Ch. 13 
 
 sake, added a specific penalty ; but that cannot reduce the offense 
 to a lower degree. My Brother Maule has, however, given a prob- 
 able explanation of that provision. 
 
 Parke, B., Maule, J., Talfourd, J., and Martin, B., concurred. 
 
 Conviction affirmed. 
 
 
 
 STATE v. ALEXANDER. 
 
 (Supreme Court of North Carolina. 1S76. 74 N. C. 232.) 
 
 Bynum, J. The defendant was indicted for stealing a hog run- 
 ning at large in the "range." The hog was found dead, having 
 been shot. Its ears had been cut off, and one of its hams skinned, 
 but the skin had not been severed from the animal ; no part being 
 cut off except the ears. There was no evidence that the hog had 
 been killed elsewhere than where found, or had been removed from 
 the spot where it had been killed. There was evidence that the de- 
 fendant shot the hog and did the skinning. His honor charged the 
 jury that if the defendant shot and skinned the hog, as alleged, and 
 had it under his control, with the intent to steal, there was in law a suf- 
 ficient asportation, and he was guilty. There is error. 
 
 To complete the crime of larceny, it is no! "sufficient that the de- 
 fendant had the control of the article — that is, had the power to 
 remove it; but there must be an asportation of the thing alleged 
 to have been stolen. It is true a very slight asportation will be deem- 
 ed sufficient, yet there must be some removal to complete the offense. 
 The case here shows that there was no removal of the hog, but that it 
 remained in situ, as it had been shot down. 1 In State v. Jones, 
 Go N. C. 395, it was held that the turning of a barrel of turpentine, 
 which was standing upon its head, over upon its side, with a felo- 
 nious intent, was not such an asportation as constituted larceny. So 
 in State v. Butler, 65 N. C. 309, which is a case almost identical 
 with this, it was held that an indictment at common law for stealing 
 a cow is not supported by proof that the cow was shot down and 
 her ears cut off by the defendant with a felonious intent, because 
 there was no asportation of the cow, the thing charged to have been 
 
 i Accord: Rex v. Williams, 1 Itfoody, 107 (1825); State v. Sender, i Rich. 
 I.iiw (S. <M 30, 42 Am. Dec, 404 (1844); People v. Murphy, 47 Cal. 103 (1873); 
 Williams v. State <;:'. Mis--. r,.x (is.s.-»; Molton v. State, 105 Ala. IS, 10 South. 
 795, 53 Am. St. Rep. 97 (1894). 
 
 Compare Lundy v. State, 80 Ga. 148 (1878); Kemp v. State, 89 Ala. 52, 7 
 South. 413 (18S9); State v. Gilbert, 68 Vt 188, 34 All. 697 (1896); Wllbuni 
 v. Territory, 10 X. M. 402, 62 Pac. 968 (1900). 
 
 By statute, In Texas, asportation is doI a necessary element of larceny, "it 
 is only necessary thai the property stolen should have gone Into the posses- 
 sion of the iiiief. it need nol be carried away in order to accomplish the 
 offense." Pen. Code, art. 880. See ciemmona V. State, 89 Tex. Cr. R, lv.), 
 a' 91 i. 78 Am. si. Rep. 923 (1898).
 
 SCC. 3) THE CAPTION AND ASPORTATION. 415 
 
 stolen. These cases and others of our own, as well as English, are 
 decisive. State v. Jackson, 65 N. C. 305; Roscoe, 570; 2 Bish. 
 Cr. Law, 804; 2 East, P. C, 556. 
 Pj;R Curiam. Judgment reversed. 2 
 
 CUMMINGS v. COMMONWEALTH. 
 (Court of Appeals of Kentucky, 18S3. 5 Ky. Law Rep. 200.) 
 
 Opinion of the court by Chief Justice Hargis. 8 
 
 The appellant, Cummings, according to the evidence, told Sweet 
 he wished to sell him a sow and pigs, and, after agreement on the 
 price went to where a sow and pigs were lying down on the com- 
 mons and pointed them out as his, and Sweet paid him*$7 in money 
 for them and then drove them off. The sow and pigs belonged to John 
 Flauher, who lived near by. 
 
 The appellant seems to have been out of money, and resorted to 
 this means of obtaining some to supply his wants, and then proceeded 
 to the fair. 
 
 Having been convicted of* the offense of larceny or hog stealing 
 under the statute, the appellant has appealed, and his counsel contend 
 that his offense was not larceny, because there was no asportation 
 by him; but it was obtaining money by false pretenses, if anything. 
 
 He was not indicted for obtaining the $7 for the sow and pigs, 
 but for stealing the sow and pigs. Whether his acts constituted both 
 offenses of larceny of the hogs and obtaining money by false pre- 
 tenses, for which he might be punished, need not be determined, as 
 there has been no attempt to try him twice for the same acts. 
 
 The owner of the sow and pigs never parted with the possession 
 or the property in them. The asportation was by the hand or physi- 
 cal act of Sweet; but the act of felonious taking was that of the ap- 
 pellant committed through Sweet, who was his instrument in com- 
 mitting the trespass upon the property of Flauher. 
 
 East, Hale, and Hawkins, who are approved by Archbold, say that 
 if the taking be by the hand of another it is the same as if by the 
 hand of the thief himself. For instance, if the thief procure a child 
 
 2 "The indictment charges that the prisoners did 'take and carry away' 
 the wheel. To take an article signifies merely to lay hold of, grasp, or seize 
 it, with the hands or otherwise. Webster. With this understanding of the 
 meaning of the term, can it be reasonably said that the act of the prisoners 
 in laying hold of, and with a sledge breaking the wheel in pieces, animo 
 furandi, was not a taking of it within the contemplation of the criminal law? 
 We think not. As to the asportation or carrying away of the wheel, * * * 
 we think such removal might be properly inferred from the seizure of the 
 wheel, the mode of breaking it, and the subsequent disposition made of its 
 parts." Lake, O. J., in Gettinger v. State, 13 Neb. 308, 14 N. W. 403 (1882). 
 
 3 Part of the opinion, relating to another point, is omitted.
 
 416 LARCENY. (Ch. 13 
 
 within the age of discretion, or an idiot, to steal goods for him, such 
 taking must be charged to him. 
 
 It is also a well-established rule, if by artifice or fraud of the thief 
 intending to steal goods the owner is induced to part with their pos- 
 session merely, and does not part with the title, that this is such a 
 taking as will sustain the charge. It seems, therefore, that instead 
 of fraudulently procuring the owner to part with the possession, 
 the appellant sold the sow and pigs, and caused her removal by Sweet, 
 who was innocent in the trick of placing the asportation on him, 
 and it should be treated as his act through the innocent agency of 
 Sweet, and should be charged to him. 
 
 The judgment is therefore affirmed. 2 
 
 SECTION 4.— THE TRESPASS. 
 I. Possession Necessary for Trespass to Attach. 
 
 It is to be observed that all felonies irfclude trespass, and that every 
 indictment of larceny must have the words "felonice cepit," as well 
 as "asportavit," whence it follows that, if the party be guilty of no 
 trespass in taking the goods, he cannot be guilty of felony in carrying 
 them away. 1 Hawkins, P. C. 142. 
 
 REX v. DINGLE Y. 
 
 (King's Bench, 1GS7. Show. 53.) s 
 
 A servant or journeyman employed to sell goods, and receives 
 money for his master's use, sells a considerable quantity and receives 
 L60 guineas for his master, and goes away with 150 when discharged, 
 and lays the 10 in a private place in the chamber where he lay J. that 
 being discharged his master's house and service, he afterwards, in the 
 nighttime, breaks open the house and takes the 10 guineas so hid. 
 Held no burglary, for that the taking the money was not felony, for, 
 though his master's money in right, yet his in possession, and the 
 
 ■ Accord: State v. Hunt, 46 Iowa, 673 (1877); Commonwealth v. Barry, 
 125 Mass. 890 (1878); sikes v. State (Tex. Or. App.) us s. w. ess (1894); 
 Lane v. State, n Tex. Cr. K. 668, :>•"> s. \Y. 831 (Unto). But sou People v. 
 Glllis, 6 Utah, 81. ui [':■'■. ioi (is«)»). 
 
 i Tins case, as printed, is taken from sir B. Shower's argument in Rex 
 v. Meera. in Bazeley's case, Leach, 885, Oonsl read a substantially similar 
 statement of the case f r<mi a manuscript report in the possession of the 
 Clerk of Arraigns of the Old Bailey.
 
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 Sec. 4) THE TRESPASS. 417 
 
 first original act is no felony; and if he had laid it underground in 
 the garden, and afterwards come and took it away, this would have 
 been no felony, per Wright, Herbert, Atkins, Powell, and Holt. 
 
 PENNSYLVANIA v. CAMPBELL. 
 
 (Westmoreland County Court, 1794. Add. [Pa.] 232.) 
 
 Campbell was indicted for stealing a $50 bank note, the property 
 of Daniel Prosser. 
 
 William Todd, having contracted with the Governor for making 
 a certain distance of the state road from Philadelphia to Pittsburg, 
 employed Campbell and Prosser to make the road in part of that 
 distance, and advanced j&60, viz., 10 silver dollars, and a $50 bank 
 .bill. Camp bell took up the bill, and Prosser the silver, and they went 
 to a neighboring tavern to get the bill changed for dollars, and then 
 divide the whole money equally between them. Not getting the bill 
 changed at the tavern, Campbell desired Prosser to give him the 
 silver and take the note to another tavern on his way home, and there 
 have it changed, and give him his share afterwards. The note was 
 then lying on the table, with a paper in which it had been given them, 
 by Todd. Prosser gave Campbell the silver, and proceeded to take 
 urj the note. Campbell bade him stop till he folded it up. While 
 Campbell was folding it up, Prosser turned about to drink with 
 some one in company. Campbell delivered the folded paper to Pros- 
 ser, who immediately put it in his pocket. When he opened the 
 paper at home, there was no note in it. There was some evidence that 
 Campbell, folding and delivering the paper retained a dirty paper, and 
 that he afterwards proposed to pay Prosser $30, on his return from 
 Philadelphia, whither he was going, if Prosser would swear that he had 
 lost the note. This Prosser refused to do. 
 
 Woods and Young, for the defendant. This can be no larceny; 
 for there never was a possession in Prosser, and there was a joint 
 property. Supposing, therefore, a purloining or embezzling, it is 
 not stealing. The offense, if there be any, is of another kind, a cheat. 
 
 Galbraith and Brackenridge, for the state. There is an actual and 
 constructive possession, an absolute and special property; and lar- 
 ceny may be of either. 
 
 President. There must be a taking, as well as a carrying 
 away. Unless you can conclude, from the proof, that Campbell had 
 abandoned the possession of the note to Prosser, who, from this 
 abandonment and his undertaking to change the note, became liable 
 to Campbell, or that Prosser, in consequence of his agreement with 
 consent to change, had taken the note, he had no possession. ^ There- 
 fore there can be no taking, and, of course, no larceny. But if the pos- 
 session was changed from Campbell to Prosser, a taking and a carry- 
 Mik.Cb.L.— 27
 
 41S LARCENY. (Ch. 13 
 
 ing away by Campbell would be larceny, though Prosser had a share 
 in the note ; for the change of possession rendered Prosser answerable 
 to Campbell for his half. If the possession of the note was not chang- 
 ed, and if Campbell imposed an empty paper for one inclosing a note, 
 though punishable as a misdemeanor, this is no felonyA; Therefore, 
 if the proof amount only to this, there can be no conviction on this 
 indictment, although you or I may think that there is little natural 
 difference in the degree of enormity of such misdemeanor and larceny. 
 The jury found him guilty. 
 
 REX v. BULL. 
 (Court for Crown Cases Reserved, 1797. 2 Leach, S41.)i 
 
 The prisoner, Thomas Bull, was tried at the Old Bailey, January 
 Session, 1797, before Mr. Justice Heath, on an indictment charging 
 him with having stolen, on the 7th of the same month, a half crown 
 and three shillings, the property of William Tilt, who was a con- 
 fectioner in Cheapside, with whom the prisoner lived as a journeyman ; 
 and Mr. Tilt having had, for some time before, strong suspicion that 
 the prisoner had robbed him, adopted the following method for the 
 purpose of detecting him: On the 7th of January, the day laid in 
 the indictment, he left only four sixpences in the till, and, taking 
 two half crowns, thirteen shillings, and two sixpences, went to the 
 house of Mr. Garner, a watchmaker, who marked the two half crowns, 
 several of the shillings, and the sixpences with a tool, used in his 
 line of business, that impressed a figure something like a half moon. 
 Mr. Tilt, having got the money thus marked, went into the house of 
 a Mrs. Hill, and, giving a half crown and three of the shillings to 
 Ann Wilson, one of her servants, and five of the shillings and the 
 other sixpence to Mary Bushman, another of her servants, desired 
 them to proceed to his house and purchase some of his goods of the 
 prisoner, whom he had left in care of the shop. The two women went 
 accordingly to Mr. Tilt's shop, where Ann Wilson purchased con- 
 fectionery of the prisoner to the amount of five shillings and three- 
 pence, gave him the half crown and three shillings, and received three- 
 pence in change ; and Mary Bushman purchased of him articles to 
 the amount of four shillings and sixpence, for which she paid him 
 out of the moneys she had so received, and returned the other shilling 
 to her mistress, Mary Hill. Bui neither of these women observed 
 whether the prisoner put cither the whole or any part of the money 
 into the till or into his pock et. While the women, however, were 
 purchasing these things, Mr. Tilt and Mr. Garner were waiting with 
 
 i Tins report is taken from the Btatement <>r the case by Cons! in Rex v. 
 Bazeley, Leach, 835 \ Blmllar reporl is given in 2 Bast, P. C. r>72, and it is 
 approved in Res v. Beadge, Leach, 1033 (1809), and Commonwealth v. Kyau. 
 155 Mass, 523, 80 N. i: 364, 15 L R. k. 817, 81 Am. St. Rep. 560 (1892).
 
 Sec. 4) THE TRESPASS. 419 
 
 a constable at a convenient distance on the outside of the shop door; 
 and, when they observed the women come out, they went immediately 
 into the shop, where, on examining the prisoner's pockets, they found 
 among the silver coin, amounting to fifty-three shillings, which he 
 had in his waistcoat pocket, the marked half crowns and three of the 
 marked shillings which had been given to Wilson and Bushman ; only 
 seven shillings and sixpence were found in the till, and it appeared 
 that Mrs. Tilt had taken one shilling in the shop and put it into the 
 till during her husband's absence, so that the two shillings which had 
 been left therein in the morning, the one shilling which Mrs. Tilt had 
 put into it, the four shillings and sixpence laid out by Mary Bushman, 
 and the five shillings and sixpence marked money which was found 
 in the prisoner's pocket, made up the sum which ought to have been 
 put into the till. The prisoner, upon this evidence, was found guilty 
 and received sentence of transportation. But a case was reserved 
 for the opinion of the twelve judges: Whether, as Mr. Tilt had 
 divested himself of this money by giving it to Mary Hill, who had 
 given it to her servants in the manner and for the purpose above 
 described, and as it did not appear that the prisoner had, on receiv- 
 ing it from them, put it into the till or done anything with it that 
 could be construed a restoring it to the possession of his master, 
 the converting of it to his own use by putting it into his own pocket 
 could amount to the crime of * larceny ; it being essential to the 
 commission of that offense that the goods should be taken from the 
 possession of the owner, and, although no opinion was ever pub- 
 licly delivered upon this case, the prisoner was discharged. 2 
 
 REX v. SULLENS. 
 
 (Court for Crown Cases Reserved, 1826. 1 Mood. 129.) 
 
 The prisoner was tried before Alexander, C. B., at the Spring 
 Assizes for the county of Essex, in the year 1826, on an indictment 
 at common law — the first count of which charged the prisoner with 
 stealing at Doddinghurst, on the 25th of September, 1825, one prom- 
 issory note, value £5, the property of Thomas Nevill and George 
 Nevill, his masters; the second count, with stealing silver coin, the 
 property of Thomas Nevill and George Nevill. 
 
 It appeared in evidence that Thomas Nevill, the prisoner's master, 
 gave him a £5 country note, to get change, on the said 25th of Sep- 
 tember; that he got change, all in silver, and on his obtaining the 
 change he said it was for his master, and that his master sent him. 
 The prisoner never returned. 
 
 2 On the consultation among the judges on this case, they were of opinion 
 that Bull was not guilty of felony, but only of a breach of trust ; the money 
 never having been put into the till, and. therefore, not having been in the 
 possession of the master as against the defendant. 2 East, P. C. 572.
 
 420 LARCENY. (Ch. 13 
 
 The jury found the prisoner not guilty on the first count, but guilty 
 on the second count. 
 
 The question reserved for the consideration of the judges was 
 whether the conviction was proper, or whether the indictment should 
 not have been on St. 39 Geo. Ill, c. 85, for embezzlement? 
 
 In Easter Term, 1826, the judges met and considered this case, 
 and held that the conviction was wrong, because, as the masters 
 never had possession of the change, except by the hands of the prison- 
 er, he was only amenable under St. 39 Geo. Ill, c. 85. 1 
 
 REGINA v. MASTERS. 
 
 (Court for Crown Cases Reserved, 1848. 1 Denison, 332.) 
 
 Orlando Masters, a clerk in the employment of William Holliday, 
 was tried at the Michaelmas Quarter Sessions, A. D. 1848, for the 
 borough of Birmingham, on an indictment charging him with em- 
 bezzling three sums of money received by him for and on account of" 
 his master, the prosecutor. 
 
 It appeared in evidence that the course of business adopted by 
 the house was for the customers to pay moneys into the hands of 
 certain persons, who paid them over to a superintendent. He ac- 
 counted with the prisoner, and paid over such moneys to him, and the 
 prisoner, in his turn, accounted with cashiers, and paid over the 
 moneys to them — he having no other duty to perform with respect to 
 such moneys than to keep an account which might act as a check on 
 the superintendent and the cashiers ; their accounts being in like 
 manner checks upon him. These four parties to the receipt of the 
 moneys are all servants of the prosecutor. 
 
 With respect to the three sums in question, it was proved that 
 they passed in due course from the customers through the hands of 
 the immediate receivers and the superintendent to the prisoner, who 
 willfully and fraudulently retained them. 
 
 On behalf of the prisoner it was objected, on the authority of 
 Rex v. Murray, 1 Moody's C. C. 276, that the moneys, having before 
 they reached the prisoner been in the possession of the prosecutor's 
 servants, did in law pass to the prisoner from his master, and that con- 
 sequently the charge of embezzlement could not be sustained. 
 
 The Recorder left the case to the jury, reserving the point. 
 
 The prisoner was convicted and sentenced to 12 months' imprison- 
 ment, with hard labor. 
 
 This case was argued before Pollock, C. B., and Pattkson, 
 Maull, Crkswkll. and Krll\ JJ., on the 11th of November, 1848, 
 at the first sitting of the court created by St. 11 & 12 Vict. c. 78. 
 
 i Accord: Reg e. Hawtln, 7 Oar. & P. 281 (1S30); Commonwealth v. King, 
 
 9 Ouah. (Mass.; 'Mi (1852).
 
 Sec. 4) THE TRESPASS. 421 
 
 Pollock, C. B. The court are unanimously of opinion that 
 no further argument is necessary. This case is quite different from 
 that of R. v. Murray, 1 Moo. C. C. 276. There the case was not 
 within St. 7 & 8 Geo. IV, c. 29, § 47, because the master had had 
 possession of the money by the hands of another servant, and when 
 it was given to the prisoner by that servant, to be paid away on ac- 
 count of the master, it must be deemed in law to have been so given 
 to the prisoner by his master. The fraudulent appropriation of it, 
 being thus a tortious taking in the first instance, was not embezzle- 
 ment, but larceny. But here the money never reached the master at 
 all. It was stopped by the prisoner on its way to him. The original 
 taking was lawful, and therefore the fraudulent appropriation was 
 embezzlement. 
 
 REGINA v. KAY. 
 (Court for Crown Cases Reserved, 1857. 7 Cox, C. C 2S9.) 
 
 The following case was reserved by Bramwell, B. : 
 
 The prisoner was tried before me at the last assizes for Ruthin on 
 an indictment which charged him with stealing a post letter and a 
 watch, laid to be the property of the Postmaster GeneraUand in anoth- 
 er count of Thomas Jones. 
 
 Thomas Jones had bought a watch in London, which, requiring 
 some regulating, he had sent to the seller, named Myers. A letter 
 was written by some person, in his name and without his authority,, 
 requesting the seller to return the watch to him, Thomas Jones, in 
 a letter directed to the care of the postmaster at Brymbo. After 
 this letter had been written, the prisoner, and a person who falsely 
 represented himself to be Thomas Jones, came to the Brymbo post 
 office and asked for the watch. It had not arrived, and the man 
 personating Thomas Jones requested that, when it did, it might be 
 delivered to the prisoner. This was accordingly done by a clerk at 
 the post office at the prisoner's request next day, on the arrival of 
 the watch. It must be taken that the writing of the letter, the per- 
 sonation of Thomas Jones, and application for the watch were parts 
 of the same scheme, and that the watch was sent to Brymbo by the 
 seller in pursuance of the fraudulent letter. 
 
 On this and other evidence the prisoner was convicted. 
 
 Coleridge, J., now delivered the judgment of the court. We 
 are of opinion that the prisoner in this case was rightly convicted 
 of felony. Thomas Jones, the owner of a watch, had placed it with 
 the seller for a specific purpose, the regulating it ; and, as it is 
 not stated that he had given any specific directions when or how it was 
 to be returned, it must be taken that the seller had no authority to 
 deliver it to any one but Thomas Jones, or some one commissioned 
 by him to receive it. By the fraud of the prisoner he is induced to
 
 422 LARCENY. (Ch. 13 
 
 believe that Thomas Jones had desired him to send it by post to the 
 postmaster at Brymbo, inclosed in a letter addressed to Thomas 
 Jones. The postmaster, also, induced by the fraud of the prisoner, 
 delivers the watch to him, believing him to be Thomas Jones or his 
 agent, and thus the possession is obtained. Now, assuming it to 
 have been correctly contended in the argument that the seller of the 
 watch had more than a bare charge and was the bailee of it, yet his 
 special property has not put an end to the general property of the 
 true owner; and when he sent the watch away to a third person, 
 addressed to the true owner, intending such third person to deliver it 
 to the true owner, and that third person, the postmaster, received 
 it for that purpose, the seller's possession and right of possession and 
 special property all ceased. The general property of the true owner 
 became entirely unincumbered and drew to it the possession, unless 
 the postmaster himself became the bailee, as the seller had been before. 
 But this he did not, according to Pearce's Case, 2 East, P. C. 603, 
 where the prisoner, pretending to be a mail guard, obtained from the 
 postmaster the bags of letters, and was held to have been rightly 
 convicted of stealing letters out of the post office ; the postmaster 
 having no property in them, but only a charge. Although the prisoner 
 had by fraud induced the seller to part with his special property, as- 
 suming that he had such, yet no possession had thereby in fact be- 
 come vested in him ; and, when the possession in fact had come to the 
 postmaster, it would be unreasonable to hold that the prisoner, by 
 calling himself Thomas Jones, and falsely pretending to be the true 
 owner, had made the postmaster his servant and agent, or the 
 postmaster's actual possession his, since the postmaster had receiv- 
 ed it for the true owner and intended to deliver it to the true owner. 
 The postmaster being the servant of the true owner for this purpose, 
 his possession was the possession of the true owner, and could not be 
 divested by the tortious taking from him, according to Wilkin's Case, 
 2 East, P. C. 673, 674. On this ground the prisoner's offense appears 
 to have been clearly larceny. 
 Conviction affirmed. 1 
 
 REGINA v. REED. 
 (Court of Criminal Appeal, L854. 6 Cox, C. C. 28-1.) 
 
 The following case was reserved by the Court of Quarter Sessions 
 for the county of Kent : 
 
 At the General Quarter Sessions of the Peace for the county of 
 Kent, holden at Maidstone, on the 4th of January, 1853, before 
 Aretus Akers, Edward Burton, and James Espinasse, Esqs., jus- 
 tices appointed to try prisoners in a separate court, Abraham Reed 
 
 i See, also, People v. McDonald, 43 N. Y. Gl (1870).
 
 Sec. 4) THE TRESPASS. 423 
 
 was tried upon an indictment for feloniously stealing 200 pounds 
 weight of coals, the property of William Newton, his master, on the 
 6th of December, 1852, and James Peerless was charged in the 
 same indictment with receiving the coals, knowing the same to have 
 been stolen, and was acquitted. 
 
 The evidence of the prosecutor, William Newton, was as follows : 
 "I am a grocer and miller at Cowden, and sell coals by retail. The 
 prisoner, Reed, entered my service last year, about three weeks before 
 the 6th of December. On that day I gave him directions to go to a 
 customer to take some flour, and thence to the station at Edenbridge, 
 for 12 hundredweight of coals. I deal with the Medway Company, 
 who have a wharf there ; Holman being wharfinger. I told Reed to 
 bring the coals to my house. Peerless lives about 500 yards out of the 
 road from the station to my house. Reed went about 9 a. m., and 
 ought to have come back between 3 and 4 p. m. ; but, as he had not 
 come back, I went in search of him at half-past 6, and found him at 
 Peerless'. The cart was standing in the road opposite the house, and 
 the two prisoners were taking coals from the cart in a truck basket. 
 It was dark. I asked Reed what business he had there, he said: 'Tc 
 deliver half a hundredweight, for which he had received an order from 
 Peerless.' Reed had never before told me of such an order, and had 
 no authority from me to sell coals. Later that evening I went and 
 asked Peerless what coals he had received from my cart. He said : 
 'Half a hundredweight.' I then asked him how they were carried 
 from the cart. He said: 'In a sack.' I weighed the coals when 
 brought home, and found the quantity so brought a quarter of a hun- 
 dredweight and four pounds short. I went to Peerless' next day and 
 found some coals there, apparently from half to three-quarters of a 
 hundredweight." 
 
 This case was first argued on the 23d of April, 1853, before Jervis, 
 C. J., Parke, B., Alderson, B., Wightman, J., and Cresswell, J., when 
 the court took time to consider their judgment. The court after- 
 wards directed that the case should be argued before all the judges, 
 and in pursuance of that direction the case was again heard on the 19th 
 of November, 1853. 1 
 
 Lord Campbell, C. J. There lies before me a judgment that I had 
 prepared for myself at a time when there was reason to suppose that 
 there might be one, if not more, dissenting judges. I have reason 
 to believe now that there will not be any dissent; but still this judg- 
 ment must be considered only as embodying the reasons I give for my 
 opinion, because I have no authority to say that my Brothers concur 
 in that opinion and the reasons for it. For convenience, I have written 
 my judgment, and my learned Brothers will say how far they concur 
 or dissent. I am of opinion that the prisoner has been properly con- 
 victed of larceny. There can be no doubt that, in such a case, the 
 
 i Part of this case is omitted-
 
 424 LARCENY. (Ch. 13 
 
 goods must have been in the actual or the constructive possession of 
 the master, and that, if the master had not otherwise the possession 
 of them than by the bare receipt of his servant upon the delivery of 
 another for the master's use, although as against third persons this 
 is in law a receipt of the goods by the master, yet in respect of the 
 servant himself this will not support a charge of larceny, because as 
 to him there was no tortious taking in the first instance, and conse- 
 quently no trespass. Therefore, if there had been a quantity of coals 
 /delivered to the prisoner for the prosecutor, and the prisoner, having 
 remained in the personal possession of them, as by carrying them on 
 his back in a bag, without anything having been done to determine his 
 original exclusive possession, had converted them animo furandi, he 
 would have been guilty of embezzlement, and not of larceny. But if 
 the servant has done anything which determines his original exclusive 
 possession of the goods, so that the master thereby comes constructively 
 into possession, and the servant afterwards converts them animo fur- 
 andi, he is guilty of larceny, and not merely of a breach of trust at 
 common law, or of embezzlement under the statute. On this supposi- 
 tion he subsequently takes the goods tortiously in converting them, and 
 commits a trespass. We have, therefore, to consider whether the ex- 
 clusive possession of the coals continued with the prisoner down to 
 the time of the conversion. I am of opinion that this exclusive pos- 
 session was determined when the coals were deposited in the prose- 
 cutor's cart, in the same manner as if they had been deposited in the 
 prosecutor's cellar, of which the prisoner had the charge. The prose- 
 cutor was undoubtedly in possession of the cart at the time when the 
 coals were deposited in it; and, if the prisoner had carried off the 
 cart animo furandi, he would have been guilty of larceny. That is 
 expressly determined in Robinson's Case, 2 East, 565. There seems 
 considerable difficulty in contending that, if the master was in pos- 
 session of the cart, he was not in possession of the coals which it con- 
 tained; the coals being his property, and deposited there by his order, 
 for his use. Mr. Ribton argued that the goods received by a servant 
 for his master remain in the exclusive possession of the servant till 
 they have reached their ultimate destination. But he was unable, not- 
 withstanding his learning and ingenuity, to give any definition of "ul- 
 timate destination," when so used. He admitted that the master's con- 
 structive possession would begin before the coals were deposited in 
 the cellar, when the cart containing the coals had stopped at his door, 
 and even when it had entered his gate. But I consider the point of 
 lime to be regarded is that when the coals were deposited in the cart. 
 Thenceforth the prisoner had only the custody or charge of the coals, 
 as a butler has of his master's plate, or a groom has of his master's 
 horse. To this conclu ion, with the most sincere deference to any of 
 my learned Brothers who may at any time have taken a different view 
 — to this conclusion I .should have come on principle ; and I think 
 that Spears' Case is an express authority for it. There is no con-
 
 Sec. 4) THE TRESPASS. 425 
 
 flicting authority; for in all the cases relied upon by Mr. Ribton the 
 exclusive personal possession of the prisoner had continued down to 
 the time of the wrongful conversion. It is said there is great subtlety 
 in giving such an effect to the deposit of the coals in the prosecutor's 
 cart; but the objection rests on a subtlety wholly unconnected with 
 the moral guilt of the prisoner, for as to that it must be quite imma- 
 terial whether the property in the coals had or had not vested in the 
 prosecutor prior to the time when they were delivered to the prisoner. 
 We are to determine whether this would have been a case of larceny 
 at common law before there was any statute against embezzlement ; 
 and I do not think that there would have been any reproach to the 
 administration of justice in holding that the subtlety arising from the 
 prosecutor having had no property in the subject of the larceny before 
 its delivery to the prisoner, who stole it, was sufficiently answered 
 by the subtlety that when the prisoner had once parted with the per- 
 sonal possession of it, so that a constructive possession by the prose- 
 cutor began, the servant who subsequently stole it should be liable to 
 be punished as if there had been a prior property and possession in 
 the prosecutor, and that the servant should be adjudged liable to be 
 punished for a crime, instead of being allowed to say that he had only 
 committed a breach of trust, for which he might be sued in a civil 
 action. -In approaching the confines of different offenses created by 
 common law or by statute, nice distinctions must arise and must be 
 dealt with. In the present case it is satisfactory to think that the ends 
 of justice are effectually gained by affirming the conviction; for the 
 only objection to it is founded upon an argument that he ought to 
 have been convicted of another offense of the same character, for 
 which he would have been liable to the same punishment. 
 
 Jervis, C. J. I concur in the judgment of the Lord Chief Justice. 
 I had originally written a judgment concurring in the view taken by 
 my lord, but ultimately I have not found it necessary to read it. It 
 is admitted that the cart was in the possession of the servant for a 
 special purpose. If he had taken the cart, he would have been guilty 
 of larceny; and, if the cart for this purpose continued the cart of the 
 master, the delivery of the coals into the cart was a delivery to the 
 master, and makes the offense a larceny. 2 
 
 2 Parke, B„ thought the acts of the prisoner did not constitute larceny, 
 but felt bound by the authority of Rex v. Abrahat, 2 Leach, S28, and Rex v. 
 Spears. Id. 
 
 "It is plain that the mere physical presence of the money there (in the 
 master's till) for a moment is not conclusive, while the servant is on tbe spot 
 and has not lost his power over it. as. for instance, if the servant drops it, 
 and instantly picks it up again. Such cases are among the few in which the 
 actual intent of the party is legally important; for, apart from other consider- 
 ations, the character in which he exercises his control depends entirely upon 
 himself. Sloan v. Merrill, 135 Mass. 17, 19; Jefferds v. Alvard. 151 Mass. 
 94. 95, 23 N. E. 734; Commonwealth v. Drew, 153 Mass. 58S. 594. 27 N. E. 
 593. It follows from what we have said that the defendant's first position 
 cannot be maintained, and that the judge was right in charging the jury 
 that if the defendant, before he placed the money in the drawer, intended to
 
 426 LARCENY. (Ch. 13 
 
 II. Trespass in Taking Possession. 
 REGINA v. REEVES. 
 
 (Essex Assizes, 1859. 5 Jur. [N. S.] 716.) 
 
 Larceny. The prosecutor deposed that, being somewhat tipsy, 
 he lay on the ground partly asleep, and while in that state saw the 
 prisoner take his watch out of his pocket, which he took no steps to 
 prevent, believing that the prisoner, with whom he had been ac- 
 quainted for some time, was acting solely from friendly motives. Some 
 days after he claimed his watch from the prisoner, who denied hav- 
 ing had it; but other witnesses deposed that he had in the meantime 
 offered it for sale. 
 
 F. Robinson, for the prisoner, objected that there was no trespass, 
 and consequently no larceny. 
 
 Crowder, J. This evidence would not support a charge of lar- 
 ceny at common law, but the recent statute (St. 20 & 21 Vict. c. 54, 
 § 4), enacts that "if any person, being a bailee of any property, shall 
 fraudulently take or convert the same to his own use, or to the use 
 of any person other than the owner thereof, although he shall not 
 break bulk, or otherwise determine the bailment, he shall be guilty 
 of larceny." Here the evidence discloses a bailment sufficient to 
 bring the case within that statute — i. e., if the jury are satisfied on the 
 facts. 
 
 F. Robinson. The point is quite new. 
 
 Verdict — Not guilty. 
 
 
 
 COMMONWEALTH v. WHITE. 
 
 (Supreme Judicial Court of Massachusetts, 18o3. G."> Mass. 4S3.) 
 
 Indictment for larceny from a stable, of a horse, wagon, and har- 
 ness, alleged to have been committed in the county of Bristol. The 
 stable was situated in Easton, in that county, and the property be- 
 longed to John McDonald. At the trial in the court of common pleas, 
 before Wells, C. J., the evidence tended to prove that said property 
 was in the stable of the owner, who was absent. The said James 
 White represented to Josiah White, Jr., the other defendant, that he 
 had hired the horse and wagon of the owner, and invited him to go to 
 North Bridg r. They harnessed the horse about 5 o'clock p. m. 
 
 and started, and met the owner. He called to them to stop, but they 
 passed on without heeding him. They went to North Bridgcvvater, 
 
 appropriate it. and with thai Intent simply put it Into the drawer for his own 
 convenience In keeping it for himself, thai would DOi make ins appropriation 
 of it. just afterwards larceny." Bolmes, J., in Commonwealth v. Ryan, 155 
 Mass. :.L'.:. 80 N. !•:. 8W, IB L It. A. 817, 81 Am. St. Kep. 500 (18912).
 
 Sec. 4) THE TRESPASS. 427 
 
 and stayed there till evening, when they started on their way back. 
 The horse becoming disabled by a fall, they unharnessed him, turned 
 him loose, and took another horse from a pasture near the road, and 
 harnessed him into the wagon, and proceeded into Easton on the 
 road towards the stable of the owner. While riding along in the 
 town of Easton, James White proposed to Josiah to go to Brighton, 
 in the county of Middlesex. Josiah consented, and they, while in the 
 town of Easton, turned from the road leading to the stable of Mc- 
 Donald and drove to Brighton. And there Josiah, under the instruc- 
 tion and direction of James, put the property into the hands of an 
 auctioneer, stating that his name was Johnson, and that the horse be- 
 longed to his father, who had given him leave to sell him. The auc- 
 tioneer sold the same, but, something happening to excite his sus- 
 picions, he refused to pay over the money. McDonald testified that 
 he did not let the horse, wagon, and harness, or either of them, to 
 James White, nor had he ever let to him any horse, wagon, or harness, 
 but that he had sometimes, but not on this occasion, let to Josiah 
 White, Sr., the wagon and harness, but never that horse; that he 
 did not use any force to stop defendants, when he met them, because 
 it would have been very inconvenient for him to have got off from 
 his load ; and that he expected they would return the horse and 
 wagon. 
 
 The counsel for the defendant contended: (1) That if the prop- 
 erty was let to James White and Josiah White, Jr., there was no 
 larceny. (2) That if the defendant took the property without leave, 
 although the taking was a trespass, but if he intended, when he took 
 it, to return it, there was no larceny, although, while on the way, he 
 should determine to appropriate the property, and should proceed to 
 do with it as appeared from the testimony. (3) That there was no 
 evidence of such a conversion of the property as would amount to 
 the crime of larceny, if the property was taken without leave, but with 
 the intention at the time of returning it. 
 
 But the court instructed the jury that if the taking was a trespass, 
 and if the trespasser, at the time of taking, intended to appropriate 
 the property to his own use, the taking would be a larceny of the 
 entire property V If the taking was a trespass, but the defendant in- 
 tended at the pme of taking to return the property, and this inten- 
 tion continued' until after the shifting of the horses, there was no 
 larceny of the horse. But if afterwards, and before proposing to go 
 to Brighton, the defendant determined to take the property to Brigh- 
 ton and there dispose of it as his own, and he did in pursuance of 
 that determination do that which was stated in the testimony, this 
 would amount to larcenv of the wagon and harness. 
 
 The jury found the defendant guilty of simple larceny of the wagon 
 and harness, and not guilty of the residue of the charge in the in- 
 dictment, and to these instructions the defendant excepted. 1 
 
 i Argument of counsel is omitted.
 
 428 LARCENY. (Ch. 13 
 
 Merrick, J. There appears to be no legal objection to the con- 
 viction of the defendant. The questions of fact which arose upon 
 the trial were submitted to the jury, under suitable and accurate in- 
 structions in matters of law. The wrongful taking of goods by a 
 party with an intent to assume them as his own, or to convert them 
 to his own use, is a trespass merely. And in many cases the subse- 
 quent fraudulent appropriation and conversion of goods, the pos- 
 session of which has been rightfully obtained, does not constitute a 
 felony. Rose. Crim. Ev. 472, 478; Archb. Crim. PL 186. But if 
 a person by committing a trespass has tortiously and unlawfully ac- 
 quired possession of personal property belonging to another, and 
 afterwards conceives the purpose of fraudulently depriving the owner 
 of it, and in pursuance of that design, with a felonious intent, car- 
 ries it away and converts it to his own use, he thereby commits and 
 is guilty of the crime of larceny. 1 Hale, P. C. 507; 2 East, P. C. 
 GC2; Regina v. Riley, 1 Dears. C. C. 149. This is the effect and 
 substance of the explanation and statement of the law made by the 
 presiding judge upon the trial. While the defendant was on his 
 way to North Bridgewater, and also during the time of his return, 
 until he fraudulently determined to appropriate and convert the horse 
 to his own use, and until he did some act in execution of that purpose, 
 he was only a trespasser; but he made himself a thief as soon as 
 he drove or led away the horse, or made any disposition of him with 
 such a felonious intent. This, indeed, is not strenuously denied by 
 his counsel, who relies, in the defense, much more upon the objection 
 that no larceny was committed before the arrival of the defendant 
 at Brighton in the county of Middlesex. But it is clear that the 
 crime had been fully committed at an earlier period. The jury must 
 have found, under the direction of the court, that the defendant 
 formed the determination to take the property to Brighton and there 
 dispose of it as his own before "the horses were shifted," and that he 
 drove on in execution of that design until the horse became "dis- 
 abled by a fall." Here, then, while the defendant was still in the 
 county of Bristol, are developed the existence of all the elements of 
 the crime of larceny — the unlawful taking, the felonious intent, and 
 the fraudulent conversion of the property to his own use. Upon 
 such proof a conviction was inevitable, and the verdict against the 
 defendant must therefore be affirmed. 
 
 Exceptions overruled. 2 
 
 lAjcoord: Reg. v. Riley, l Donrs. 14!) (1858); Wearer v. state, 77 Ala. 
 20 (18S4); Dozier v. State, 130 Ala. 57, 30 Suuth. 886 (1001).
 
 Sec. 4) the trespass. 429 
 
 MITCHUM v. STATE. 
 (Supreme Court of Alabama, 1871. 45 Ala. 20.) 
 
 Appeal from circuit court of Shelby. Tried before Hon. Chas. 
 Pelham. The facts material to the point decided will be found in 
 the opinion. 
 
 Cobb and Lewis, for appellant. The testimony shows that the 
 matches were placed upon the counter for the use of the public and 
 the accommodation of the public; that any and every person had the 
 right to take the matches without limit to light their pipes and cigars. 
 The defendant certainly had the right to take the matches to light 
 his pipe or cigar, and he had the right to use the entire box in this 
 way. The fact that he may have used them for a different purpose 
 would not make the taking felonious. 
 
 There can be no larceny where the owner consents to the taking. 
 The taking must be without authority and against the will of the 
 owner. If the taking is not felonious, although the property may be 
 converted to an improper use, yet the defendant is not guilty of lar- 
 ceny. 
 
 John W. A. Sanford, Attorney General, contra. 
 
 B. F. Saffoud, J. The defendant was indicted for petit larceny. 
 On the trial, the evidence material to the exception taken by him was 
 that the box of matches, the subject of the larceny, was placed on 
 the counter of the store to be used by the public in lighting their pipes 
 and cigars in the room, and for their accommodation, and was taken 
 therefrom by the defendant. The court was requested by the pris- 
 oner to charge the jury that if the matches were placed on the counter 
 of the storehouse for the use of customers, or the public, and they 
 were taken while there for such use, the defendant was not guilty. 
 The charge was refused, and the defendant excepted. 
 
 Larceny may be committed of property under the circumstances 
 attached to the box of matches. The owner had not abandoned his 
 right to them. They could only be appropriated in a particular man- 
 ner and in very limited quantity, with his consent. Taking them by 
 the boxful without felonious intent would have been a trespass, and 
 with it, a larceny. The ownership was sufficiently proved. 
 
 The judgment is affirmed.
 
 430 L'ARCENY. (Ch. 13 
 
 BUTLER'S CASE. 
 
 (Suffolk Assizes, 15S5. 7 Coke, 53.) 1 
 
 Coke, C. J., reported a case which was where Butler and others 
 upon the sea, next to the town of Laystoft, in Suffolk, robbed divers 
 of the queen's subjects, and spoiled them of their goods, which goods 
 they brought into Norfolk; and there they were apprehended, and 
 there brought before me, then a justice of the peace within the same 
 county, whom I examined; and in the end they confessed a cruel 
 and barbarous piracy, and that those goods which then they had 
 with them were part of the goods which they had robbed from the 
 queen's subjects upon the high sea ; and I was of opinion that in that 
 case it could not be felony, punishable by the common law, because 
 that the original act (scil.), the taking of them, was not any offence 
 whereof the common law taketh knowledge; and by consequence, 
 the bringing of them into a county could not make the same felony 
 punishable by our law; and it is not like where one stealeth goods 
 in one county and brings them into another; there he may be in- 
 dicted of felony in any of the counties, because that the original act 
 was felony whereof the common law taketh knowledge. And yet, 
 notwithstanding I committed them to the gaol until the coming of 
 the justices of the assizes. And at the next assizes the opinion of 
 Wray, Chief Justice, and Periam, Justice of Assize, was, that foras- 
 much as the common law doth not take notice of the original of- 
 fence, the bringing of the goods stolen upon the sea into a county did 
 not make the same punishable at the common law. And thereupon 
 they were committed to Sir Robert Southwell, then vice admiral of 
 the said counties. And this in effect agrees with Lacy's Case, which 
 see in my reports cited in Bingham's Case, in 2 Coke, 93, and in Con- 
 stable's Case, 3 Coke, 107. 
 
 STINSON v. PEOPLE. 
 
 (Supreme Court of Illiuois, 1807. 43 111. 307.) 
 
 Mr. Justice BREESE delivered the opinion of the court. 2 
 
 Counsel for plaintiffs in error make this point, that the recorder's 
 
 court of Cook county had no jurisdiction of the offense; the original 
 
 onious taking, if such, having occurred in the state of Indiana. 
 
 It is an wered to this by the Attorney General, and correctly, that 
 
 principle is well established, where the original taking is felonious, 
 
 act of pi ion continued under it by the thief is a felonious 
 
 taking, wherever the thief may be; and to whatever place he car- 
 
 i This Bt&temenl of the case is reprinted from the Case of the Admiralty, 
 7 Coke, 51 
 2 pari of tins case is omitted.
 
 q 
 tf>] AA 
 
 H>.. 
 
 ,
 
 Sec. 4) THE TRESPASS. 431 
 
 ries the stolen property he may be there indicted, convicted, and pun- 
 ished for the felony. 
 
 This money continued to be the property of the prosecutor. When 
 taken at Lake Station, in Indiana, and brought into Chicago, it was 
 still his property, and not only that, but the possession, in legal con- 
 templation, continued in him, and every moment's continuance of 
 the trespass was as much a wrong as the first taking, and may as 
 well come under the allegation "took." Therefore it follows that 
 these plaintiffs did take, wherever they had, the goods. The au- 
 thorities on this point are conclusive. 1 Hawkins, P. C. 151, § 52; 
 People v. Burke, 11 Wend. (N. Y.) 129. In this case the goods 
 had been stolen in Canada, and, independent of the statute of New 
 York, the court held that by the common law the offender could be pun- 
 ished in any county where he carries the stolen goods, as he is guilty 
 of stealing them in every place where he has them. 
 
 Perceiving no error in the record to the prejudice of the prisoners, 
 the judgment is affirmed. 
 
 Judgment affirmed. 2 
 
 III. Trespass in the Appropriation of Lost Goods. 
 MERRY v. GREEN. 
 
 (Court of Exchequer, 1841. 7 Mees. & W. 623.) 
 
 Trespass for an assault and false imprisonment. The defendant's 
 plea set up that the plaintiff had committed larceny, for which cause 
 the defendant gave the plaintiff into the custody of the proper peace 
 
 i 2 Accord: State v. Cumniings, 33 Conn. 260, 89 Am. Dec. 208 (1866) ; State 
 v. Bennett, 14 Iowa, 479 (1863); Ferrill v. Commonwealth, 1 Duv. (Ky.) 153 
 (1864) ; Worthington v. State, 5S Md. 403, 42 Am. Rep. 338 (1882) ; Common- 
 wealth v. White, 123 Mass. 430, 25 Am. Rep. 116 (1877) ; Watson v. State, 36 
 Miss. 593 (1859) ; State v. Bouton, 26 Nev. 34, 62 Pac. 595 (1900) ; Hamilton 
 v. State, 11 Ohio, 435 (1842) ; State v. Johnson, 2 Or. 115 (1864) ; State v. 
 Hill, 19 S. C. 435 (1883). The same result has been reached by statute in 
 some states. La Vaul v. State, 40 Ala. 44 (1866); McFarland v. State, 4 
 Kan. 68 (1866); People v. Williams, 24 Mich. 156, 9 Am. Rep. 119 (1871); 
 State v. Butler, 67 Mo. 59 (1877); State v. Newman, 9 Nev. 48, 16 Am. Rep. 
 3 (1873) ; Barclay v. U. S., 11 Okl. 503, 69 Pac. 798 (1902) ; State v. Morales. 
 21 Tex. 298 (1S58). 
 
 Contra: Lee v. State, 64 Ga. 203, 37 Am. Rep. 67 (1879); Beal v. State. 
 15 Ind. 378 (1860) ; Van Buren v. State, 05 Neb. 223, 91 N. W. 201 (1902) ; State 
 v. Le Blanch, 31 N. J. Law, 82 (1864) ; Simmons v. Commonwealth, 5 Bin. (Pa.) 
 617 (1813). 
 
 When the property is stolen in a foreign country and brought by the thief 
 into a state, it is held that he may be convicted of larceny in such state, 
 in State v. Underwood, 49 Me. 181, 77 Am. Dec. 254 (1S58) ; State v. Bartlett, 
 11 Vt. 650 (1839); by statute, People v. Burke, 11 Wend. (N. Y.) 129 (1835). 
 
 Contra: Reg. v. Debruil, 11 Cox, C. C. 207 (1869); Stanley v. State, 24 Ohio 
 St. 166, 15 Am. Rep. 604 (1873) ; Commonwealth v. Uprichard, 3 Gray (MassJ 
 434, 63 Am. Dec. 762 (1855).
 
 432 LARCENY. (Ch. 13 
 
 officer, who for the said cause lawfully detained the plaintiff, and that 
 this was the trespass alleged against the plaintiff. 1 
 
 To this plea the plaintiff replied de injuria, whereupon issue was 
 joined. 
 
 At the trial before Tindal, C. J., at the last Warwickshire Assizes, 
 the following appeared to be the facts of the case : Messrs. Mammatt 
 and Tunnicliffe, who had for some time resided together at Ashby- 
 de-la-Zouch, in the same house, and keeping the same table and serv- 
 ants, in October, 1839, broke up their establishment and sold their 
 furniture (which was partly joint and partly separate property) by 
 public auction. At that sale the plaintiff, who was a shoemaker, also 
 residing in Ashby, became the purchaser, at the sum of £1. 6s., of an 
 old secretary or bureau, the separate property of Mr. Tunnicliffe. 
 The plaintiff kept the bureau in his house, and on the ISth of No- 
 vember following he sent for a boy of the name of Garland, a car- 
 penter's apprentice, to do some repairs to the bureau. Whilst Gar- 
 land was so engaged he remarked to the plaintiff that he thought there 
 were some secret doors in the bureau, and, touching a spring, he pulled 
 out a drawer which contained a quantity of writings. The plaintiff 
 then discovered another drawer in which was a purse containing 
 several sovereigns and other coins, and under the purse a quantity of 
 bank notes. Of this property the plaintiff took possession, and, telling 
 Garland that the notes were bad, he opened the purse, and gave him 
 one of the sovereigns, at the same time charging him to keep the 
 matter secret. Garland being interrogated by his parents how he 
 came by the possession of the sovereign, the transaction transpired; 
 and it being subsequently discovered that the plaintiff had appro- 
 priated the property to his own use, falsely alleging that he had never 
 had possession of a great portion of it, the defendants (one of whom 
 was the solicitor of Mr. Tunnicliffe) went with a police officer to the 
 plaintiff's house, took him into custody and conveyed him befpre a 
 magistrate on a charge of felony. The plaintiff was ultimately dis- 
 charged, the magistrate doubting whether a charge of felony could be 
 supported. At the trial a witness of the name of Hannah Jenkins was 
 called on behalf of the plaintiff, who deposed that she was present at 
 the auction, and remembered the piece of furniture in question being 
 put for sale and bought by the plaintiff; that after it was sold an ob- 
 servation was made by some of the bystanders to the effect that the 
 plaintiff might have bought something more than the bureau, as one 
 of the drawers would not open, upon which the auctioneer said, "So 
 much the better for the buyer," adding, "I have sold it, with its con- 
 tents, and it is his." This statement was opposed by the evidence of 
 the auctioneer, who stated, on cross-examination by the defendant's 
 counsel, thai there was one drawer which would not open, and that 
 what he had said was: "That is of no consequence. I have sold the 
 
 i The plea is abridged and part of the case is omitted.
 
 Sec. 4) THE TRESPASS. 433 
 
 secretary, and not its contents." It did not appear that any person 
 knew that the bureau contained anything whatever. 
 
 The learned Chief Justice, in summing up, told the jury that, as 
 the property had been delivered to the plaintiff as the purchaser, he 
 thought there had been no felonious taking, and left to them the ques- 
 tion of damages only, reserving leave for the defendant to move to 
 enter a nonsuit. The jury found a verdict for the plaintiff with £50 
 damages. 
 
 Parke, B. My Lord Chief Justice thought in this case that, even 
 assuming the facts of which evidence was given by the defendant to 
 be true, the taking of the purse and abstracting its contents was not 
 a larceny; and that is the question which he reserved for the opinion 
 of the court, giving leave to move to enter a nonsuit. After hearing 
 the argument, we have come to the conclusion that, if the defendant's 
 case was true, there was sufficient evidence of a larceny by the plain- 
 tiff ; but we cannot direct a nonsuit, because a fact was deposed to on 
 tEe part of the plaintiff which ought to have been left to the jury, 
 and which, if believed by them, would have given a colorable right 
 to him to the contents of the secretary, as well as to the secretary it- 
 self, viz., the declaration of the auctioneer that he sold all that the 
 piece of furniture contained, with the article itself, and then the ab- 
 straction of the contents could not have been felonious. There must, 
 therefore, be a new trial, and not a nonsuit. 
 
 But if we assume, as the defendant's case was, that the plaintiff 
 had express notice that he was not to have any title to the contents of 
 the secretary if there happened to be anything in it, and, indeed, with- 
 out such express notice, if he had no ground to believe that he had 
 bought the contents, we are all of opinion that there was evidence to 
 make out a case of larceny. 
 
 It was contended that there was a delivery of the secretary, and the 
 money in it, to the plaintiff as his own property, which gave him a 
 lawful possession, and that his subsequent misappropriation did not 
 constitute a felony. But it seems to us that though there was a de- 
 livery of the secretary, and a lawful property in it thereby vested in 
 the plaintiff, there was no delivery so as to give a lawful possession 
 of the purse and money. The vendor had no intention to deliver it, 
 nor the vendee to receive it. Both were ignorant of its existence, and, 
 when the plaintiff discovered that there was a secret drawer contain- 
 ing the purse and money, it was a simple case of finding, and the law 
 applicable to all cases of finding applies to this. 
 
 The old rule, that "if one lose his goods and another find them, 
 though he convert them animo furandi to his own use, it is no lar- 
 ceny," has undergone in more recent times some limitations. One is 
 that if the finder knows who the owner of the lost chattel is, or if, 
 from any mark upon it, or the circumstance under which it is found, 
 the owner could be reasonably ascertained, then the fraudulent con- 
 version, animo furandi, constitutes a larceny. Russ. Cr. 102. Under 
 Mik.Cr.L.— 28
 
 ■ 
 
 134 LARCENY. (Cll. 13 
 
 this head fall the cases where the finder of a pocketbook with bank 
 notes in it, with a name on them, converts them animo furandi ; or 
 a hackney coachman, who abstracts the contents of a parcel which 
 has been left in his coach by a passenger (Wynne's Case, Leach, C. C. 
 413), whom he could easily ascertain; or a tailor, who finds and ap- 
 plies to his own use a pocketbook in a coat sent to him to repair by a 
 customer, whom he must know (Cartwright v. Green, 8 Ves. 405) — 
 all these have been held to be cases of larceny; and the present is an 
 instance of the same kind, and not distinguishable from them. It is 
 stated that the offense cannot be larceny, unless the taking would be 
 a trespass, and that is true; but if the finder, from the circumstances 
 of the case, must have known who was the owner, and, instead of 
 keeping the chattel for him, means from the first to appropriate it to 
 his own use, he does not acquire it by a rightful title, and the true 
 owner might maintain trespass ; and it seems, also, from Wynne's 
 Y Case, that if, under the like circumstances, he acquire possession and 
 means to act honestly, but afterwards alter his mind, and open the 
 parcel with intent to embezzle its contents, such unlawful act would 
 render him guilty of larceny. 
 
 We therefore think that the rule must be absolute for a new trial, 
 in order that a question may be submitted to the jury whether the 
 plaintiff had reason to believe that he bought the contents of the bureau, 
 if any, and consequently had a color of right to the property. 2 
 
 Rule absolute for a new trial. 
 
 REGINA v. THURBORN. 
 (Court for Crown Cases Reserved, 1849. 1 Den. C. C 3S7.) 
 
 The prisoner was tried before Parke, B., at the Summer Assizes 
 for Huntingdon, 1848, for stealing a bank note. 
 
 He found the note, which had been accidentally dropped on the 
 high road. There was no name or mark on it, indicating who was 
 the owner ; nor were there any circumstances attending the finding 
 which would enable him to discover to whom the note belonged when 
 he picked it up; nor had he any reason to believe that the owner 
 knew where to find it again. The prisoner meant to appropriate it 
 to his own use when he picked it up. The day after, and before he 
 had disposed of it, he was informed that the prosecutor was the owner, 
 and had dropped it accidentally. He then changed it, and appropri- 
 ated the money taken Eo his own use. The jury found that he had 
 reason to believe and did believe it to be the prosecutor's property 
 before he thus changed the note. 
 
 The learned Baron directed a verdict of guil ty, intimating that he 
 should reserve the case for further consideration. Upon conferring 
 
 i Accord: Robinson v. State, n Tex. App. 408, 40 Am. Rep. 790 (1882).
 
 Sec. 4) THE TRESPASS. .435 
 
 with Maule, J., the learned Baron was of opinion that the original 
 taking was not felonious, and that in the subsequent disposal of it 
 there was no taking, and he therefore declined to pass sentence, and 
 ordered the prisoner to be discharged, on entering into his own recog- 
 nizance to appear when called upon. 
 
 On the 30th of April, A. D. 1849, the following judgment was read 
 by Parke, B. : 
 
 A case was reserved by Parke, B., at the last Huntingdon Assizes. 
 It was not argued by counsel, but the judges who attended the sit- 
 ting of the court after Michaelmas Term, 1848, namely, the Lord 
 Chief Baron, Patteson, J., Rolfe, B., Cresswell, J., Williams, J., 
 Coltman, J., and Parke, B., gave it much consideration on account 
 of its importance, and the frequency of the occurrence of cases in 
 some degree similar in the administration of the criminal law, and 
 the somewhat obscure state of the authorities upon it. [The learned 
 Baron here stated the case.] 1 
 
 In the present case there is no doubt that the bank note was lost, 
 the owner did not know where to find it, the prisoner reasonably be- 
 lieved it to be lost, he had no reason to know to whom it belonged, 
 and therefore, though he took it with the intent, not of taking a partial 
 or temporary, but the entire, dominion over it, the act of taking 
 did not, in our opinion, constitute the crime of larceny. Whether the 
 subsequent appropriation of it to his own use, by changing it, with 
 the knowledge at that time that it belonged to the prosecutor, does 
 amount to that crime, will be afterwards considered. 
 
 It appears, however, that goods which do fall within the category 
 of lost goods, and which the taker justly believes to have been lost, 
 may be taken and converted, so as to constitute the crime of- larceny, 
 when the party finding may be presumed to know the owner of them, 
 or there is any mark upon them, presumably known by him, by which 
 the owner can be ascertained. Whether this is a qualification intro- 
 duced in modern times, or which always existed, we need not deter- 
 mine. It may have proceeded on the construction of the reason of 
 the old rule, "Quia Dominus rerum non apparet ideo cujus sunt 
 incertum est," and the rule is held not to apply when it is certain 
 who is the owner; but the authorities are many, and we believe this 
 qualification has been generally adopted in practice, and we must 
 therefore consider it to be the established law. There are many re- 
 ported cases on this subject, some where the owner of goods may be 
 presumed to be known, from the circumstances under which they are 
 found. Amongst these are included the cases of articles left in hack- 
 ney coaches by passengers, which the coachman appropriates to his 
 own use, or a pocketbook, found in a coat sent to a tailor to be re- 
 paired, and abstracted and opened by him. In these cases the ap- 
 propriation has been held to be larceny. Perhaps these cases might 
 
 1 Part of the opinion is omitted.
 
 436 LARCENY. (Ch. 13 
 
 be classed amongst those in which the taker is not justified in con- 
 cluding that the goods were lost, because there is little doubt he 
 must have believed that the owner would know where to find them 
 again, and he had no pretense to consider them abandoned or derelict. 2 
 Some cases appear to have been decided on the ground of bailment, 
 determined by breaking bulk, which would constitute a trespass, as 
 Wynne's Case, Leach, C. C. 460 ; but it seems difficult to apply that 
 doctrine, which belongs to bailment, where a special property is ac- 
 quired by contract, to any case of goods merely lost and found, where 
 a special property is acquired by finding. 
 
 The appropriation of goods by the finder has also been held to 
 be larceny, where the owner could be found out by some mark on 
 them, as in the case of lost notes, checks, or bills with the owner's 
 name upon them. 
 
 This subject was considered in the case of Merry v. Green, 7 
 M. & W. 623, in which the Court of Exchequer acted upon the au- 
 thority of these decisions ; and in the argument in that case difficulties 
 were suggested, whether the crime of larceny could be committed in the 
 case of a marked article, a check, for instance, with the name of the 
 owner on it, where a person originally took it up, intending to look at it, 
 and see who was the owner, and then, as soon as he knew whose it 
 was, took it, animo furandi, as, in order to constitute a larceny, the 
 taking must be a trespass, and it was asked when in such a case the 
 trespass was committed? In answer to that inquiry the dictum at- 
 tributed to me in the report was used — that in such a case the tres- 
 pass must be taken to have been committed, not when he took it up 
 to look at it and see whose it was, but afterwards, when he appropri- 
 ated it to his own use, animo furandi. 
 
 It is quite a mistake to suppose, as Mr. Greaves has done (volume 
 2, c. 14), that I meant to lay down the proposition in the general 
 terms contained in the extract from the report of the case in 7 M. & 
 W. 623, which, taken alone, seems to be applicable to every case of 
 finding unmarked, as well as marked, property. It was meant to 
 apply to the latter only. 
 
 The result of these authorities is that the rule of law on this sub- 
 ject seems to be that if a man find goods that have been actually lost, 
 or are reasonably supposed by him to have been lost, and appropriates 
 them, with the intent to take the entire dominion over them, really be- 
 lieving, when he takes them, that the owner cannot be found, it is not 
 larceny; but if he takes them with the like intent, though lost or rea- 
 sonably supposed i<> he lost, but reasonably believing that the owner 
 can be found, it is larceny. 
 
 In applying this rule, as, indeed, in the application of all fixed rules, 
 
 2 "in the case where ;i l'<>i<i ornament is round at. tin- door of a bouse, 
 
 it is rldlculom t<> say thai any person picking it up would not suppose thai it 
 
 belonged to tin- owner of the house." Etolfe, B., in Beg. v. Peters, l Car. 
 & K. 1M7.
 
 Sec. 4) THE TRESPASS. 437 
 
 questions of some nicety may arise ; but it will generally be ascer- 
 tained whether the person accused had reasonable belief that the 
 owner could be found, by evidence of his previous acquaintance with 
 the ownership of the particular chattel, the place where it is found, 
 or the nature of the marks upon it. In some cases it would be ap- 
 parent; in others, appear only after examination. 
 
 It would probably be presumed that the taker would examine the 
 chattel as an honest man ought to do at the time of taking it ; and, 
 if he did not restore it to the owner, the jury might conclude that he 
 took it, when he took complete possession of it, animo furandi. The 
 mere taking it up to look at it would not be a taking possession of the 
 chattel. 
 
 To apply these rules to the present case : The first taking did not 
 amount to larceny, because the note was really lost, and there was 
 no mark on it, or other circumstance to indicate then who was the 
 owner, or that he might be found, nor any evidence to rebut the pre- 
 sumption that would arise, from the finding of the note as proved, 
 that he believed the owner could not be found, and therefore the 
 original taking was not felonious; and if the prisoner had changed 
 the note, or otherwise disposed of it, before notice of the title of the 
 real owner, he clearly would not have been punishable ; but after the ^ 
 prisoner was in possession of the note the owner became known to 
 him, and he then appropriated it, animo furandi, and the point to be 
 decided is whether that was a felony. 
 
 Upon this question we have felt considerable doubt. 
 
 If he had taken the chattel innocently, and afterwards appropriated 
 it without knowledge of the ownership, it would not have been lar- 
 ceny; nor would it, we think, if he had done so knowing who was 
 the owner, for he had the lawful possession in both cases, and the 
 conversion would not' have been a trespass in either. But here the 
 original taking was not innocent in one sense, and the question is, 
 does that make a difference? We think not. It was dispunishable, 
 as we have already decided, and, though the possession was accom- 
 panied by a dishonest intent, it was still a lawful possession, and 
 good against all but the real owner, and the subsequent conversion 
 was not, therefore, a trespass in this case more than the others, and 
 consequently no larceny. 
 
 We therefore think that the conviction was wrong.
 
 
 438 LARCENY. (Ch. 13 
 
 BROOKS v. STATE. 
 (Supreme Court of Ohio, 1878. 35 Ohio St. 46.) 
 
 The plaintiff in error, George Brooks, was convicted of larceny 
 in stealing $200 in bank bills, the property of Charles B. Newton. 
 The evidence was that Brooks, a scavenger, while engaged in clean- 
 ing the streets, on November 20th picked up from the mud and water 
 in the gutter a roll of money consisting of bank bills of the denomina- 
 tions of $5, $10, and $20, and amounting in the aggregate to $200. 
 It had lain there since the 24th of October, on which day it had been 
 lost by the prosecutor. Notice of the loss had been published in sev- 
 eral newspapers ; but the evidence did not show that defendant saw 
 any of said notices, or that at the time he found the money he knew 
 of Newton's loss. There were no marks on the money to indicate 
 the owner. At the time of the finding defendant was working with 
 several other laborers. He testified that on picking up the roll he 
 immediately put it in his pocket, without informing his companions 
 that he had found it, and that he did not want them to know of it. 
 Within a half hour after finding the money, he quit work. He spent 
 part of the money the same day, and intrusted part of it to a Mrs. 
 Lease, saying that he had received it from an uncle, and at another 
 time, on being asked by her about it, said, "What if I found it?" 
 Kvidence was also given that the defendant shortly afterward left 
 the town, and that before leaving he attempted to secrete himself. 1 
 
 White, J. We find no ground in the record for reversing the 
 judgment. 
 
 The first instruction asked was properly refused. It was not neces- 
 sary to the conviction of the accused that he should, at the time of tak- 
 ing possession of the property, have known, or have had reason to 
 believe he knew, the particular person who owned it, or have had 
 the means of identifying him instanter. The charge asked was liable 
 to this construction, and there was no error in its refusal. 
 
 The second instruction asked was substantially given in the gen- 
 eral charge. 
 
 Larceny may be committed of property that is casually lost, as 
 well as of that which is not. The title to the property, and its con- 
 structive possession, still remains in the owner; and the finder, if he 
 takes possession of it for his own use, and not for the benefit of the 
 owner, would be guilty of tr< the circumstances were such 
 
 as to show that it had been abandoned by the owner. 
 
 The question is, under what circumstances does such property be- 
 come the subject of larceny by the finder? 
 
 [n Baker v. State, 29 ( >hio St. L84, 33 Am. Rep. 731, the rule stated 
 by Baron Parke, in Thurborn's Case, 1 Den. C. C. 387, was adopted 
 
 i 'i'ii.' stim-in.iii is :i bridged and pari of the opinion of Okey, J., reciting 
 the facts, is omitted.
 
 Sec. 4) THE TRESPASS. 439 
 
 It was there laid down that "when a person finds goods that have 
 actually been lost, and takes possession with intent to appropriate 
 them to his own use, really believing at the time, or having good 
 ground to believe, that the owner can be found, itislarceny." 
 
 It must not be understood, from the rule as fhus~stated, that the 
 finder is bound to use diligence or to take pains in making search 
 for the owner. His belief, or grounds of belief, in regard to finding 
 the owner, is not to be determined by the degree of diligence that he 
 might be able to use to accomplish that purpose, but by the circum- 
 stances apparent to him at the time of finding the property. If the 
 property has not been abandoned by the owner, it is the subject of 
 larceny by the finder, when, at the time he finds it, he has reasonable 
 ground to believe, from the nature of the property, or the circum- 
 stances under which it is found, that if he does not conceal, but deals 
 honestly with it, the owner will appear or be ascertained. But, be- 
 fore the finder can be guilty of larceny, the intent to steal the prop- 
 erty must have existed at the time he took it into his possession. 
 
 There are cases in conflict with the foregoing view ; but we believe 
 it correct in principle, and well supported by authority. Glyde's Case, 
 1 L. R. C. C. 139; Moore's Case, Leigh & Cave's C. C. 1 ; Regina 
 v. Knight, 12 Cox, 102; Commonwealth v. Titus, 116 Mass. 43, 17 
 Am. Rep. 138; Ransom v. State, 22 Conn. 153; 2 Russ. Crimes 
 (9th Am. Ed. [4th Eng. Ed.]) 179, 180, and note there found to Thur- 
 born's Case. 
 
 The case was fairly submitted to the jury, and from an examination 
 of the evidence we find no ground for interfering with the action 
 of the court below in refusing a new trial. 
 
 Judgment affirmed. 2 
 
 Okey, jr~~f~dtrrrot think the plaintiff was properly convicted. 
 
 No doubt the plaintiff was morally bound to take steps to find the 
 owner. An honest man would not thus appropriate money before 
 he had made the finding public and endeavored to find the owner. 
 
 2 Accord: State v. Clifford, 14 Nev. 72, 33 Am. Rep. 526 (1S79). Cf. Reg. 
 v. Knight, 12 Cox, C. C. 102 (1871). 
 
 "If the owner has placed no mark about the property, and none exists, 
 by which the finder can discover him. the case must still be considered, as 
 it long has been, one of mere trover and conversion — not of larceny. The 
 general remark in People v. McGarren, 17 Wend. (N. Y.) 4G0, that a finder 
 having the means of discovery is an exception, must be taken with the limi- 
 tation indicated by the authorities referred to. Every finder may be said 
 to have the means of discovering the owner by the exercise of an honest dili- 
 gence ; and if, when valuable property is lost, such means be made a test, the 
 doctrine of People v. Anderson is indeed gone. Scarcely any finder could 
 fail in his search; and. this being generally obvious to a jury, they would 
 hardly ever fail to convict for that reason. The rule would thus, in practice, 
 be brought down to a very narrow exception." Cowen, J., in People v. 
 Cogdell, 1 Hill (N. Y.) 94 (1841). 
 
 Accord: Parke, B., arguendo, in Reg. v. Dixon. 7 Cox, C. C. 35 (1855). See, 
 also, Lane v. People, 10 111. 305 (1848) ; Reg. v. Christopher, 8 Cox, C. a 91 
 (1858).
 
 440 LARCENY. (Ch. 13 
 
 But in violating the moral obligation I do not think the plaintiff in- 
 incurred criminal liability. 
 
 Baker's Case, 29 Ohio St. 1S4, 23 Am. Rep. 731, was correctly 
 decided. It is stated in the opinion, not only that when he took the 
 goods he intended to appropriate them to his own use, but that he had 
 reasonable ground for believing that Alden was the owner. A pas- 
 sage from Regina v. Thurborn, 1 Den. C. C. 387, is cited in that case 
 as containing a correct statement of the law. But a careful examina- 
 tion of Regina v. Thurborn will show that the court which rendered 
 the decision would not have sustained this conviction, and that case has 
 been repeatedly followed in England and this country. R. v. Preston, 
 2 Den. C. C. 351; R. v. West, 6 Cox, 415; R. v. Dixon, 7 Cox, 35; 
 R. v. Christopher, 5 Jur. (N. S.) 24; R. v. Glyde, 11 Cox, 103; 
 R. v. Knight, 12 Cox, 102 ; Tanner v. Commonwealth, 14 Grat. (Va.) 
 635; People v. Cogdell, 1 Hill (N. Y.) 94, 37 Am. Dec. 297; Lane 
 v. People, 5 Gilman (111.) 305; State v. Conway, 18 Mo. 321; 2 
 Leach, Cr. Cas. 31 ; Bailey v. State, 52 Ind. 4G2, 21 Am. Rep. 182. 
 
 The obligation, stated in the syllabus, that the finder must deal 
 "honestly" with the money, is too indefinite, and the opinion contains 
 no satisfactory explanation of it. This leaves both law and fact to 
 the jury, without any rule to guide them. What one jury might 
 think was honest dealing another jury might think was the reverse. 
 The adverb "properly" or "rightfully" would have been as certain. 
 
 Giemore, C. J., concurs in the dissenting opinion. 
 
 LAWRENCE v. STATE. 
 
 (Supreme Court of Teuuessee, 1839. 1 Humph. 228, 34 Am. Dec. 644.) 
 
 Reese, J., delivered the opinion of the court. 1 
 
 This is an indictment for grand larceny. The plaintiff in error was 
 a barber, and had a shop in the town of Lebanon. Muirhead, the 
 prosecutor, went to the shop of Lawrence late in the evening for 
 the purpose of having his hair trimmed. This operation having been 
 performed, the prosecutor took out his pocketbook in order to pay 
 the plaintiff in error, and gave him a $1 bill; but the latter, not having 
 the change, left the shop for the purpose of procuring it, and prose- 
 cutor remained. When the prosecutor took out his pocketbook, which 
 contained $480, lie laid it upon a table in the shop. On the return 
 of the plaintiff, prosecutor met him without the door, received his 
 change, and departed. On retiring to bed that night at 9 or 10 o'clock 
 he n,i ed his pocketbook, and remembered that he had left it on the 
 table in the shop. Ih' then went to the shop, where he found the 
 plaintiff, who denied all knowledge of the pocketbook. The foregoing 
 
 i Part of tills case is omitted.
 
 
 ! 
 
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 113 . fa 
 
 
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 i 
 
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 V -

 
 
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 Sec. 4) THE TRESPASS. 441 
 
 is a sufficient statement of the evidence with reference to the ques- 
 tion discussed before us. 
 
 The defendant's counsel contends that the prosecutor, having gone 
 3 way from the shop without remembering that he had left his pocket- 
 book behind him, the same, during the time his mind remained in 
 that state, may be said to have been lost, and that it has been deter- 
 mined in the case of Porter v. State, Mart. & Y. (Tenn.) 226, that 
 the fraudulent appropriation of lost goods, even where the finder 
 knows the owner, is not larceny. We answer that the pocketbook, 
 under the circumstances proved, was not lost, nor could the defendant 
 be called a finder. The pocketbook was left, not lost. The loss of 
 goods, in legal and common intendment, depends upon something more 
 than the knowledge or ignorance, the memory or want of memory, 
 of the owner, as to their locality at any given moment. If I place 
 my watch or pocketbook under my pillow in a bedchamber, or upon 
 a table or bureau, I may leave them behind me, indeed; but, if that 
 be all, I cannot be said with propriety to have lost them. To lose 
 is not to place or put anything carefully and voluntarily in the place 
 you intend and then forget it. It is casually and involuntarily to part 
 from the possession ; and the thing is then usually found in a place 
 or under circumstances to prove to the finder that the owner's will 
 was not employed in placing it there. To place a pocketbook, there- 
 fore, upon a table, and to omit or forget to take it away, is not to 
 lose it in the sense in which the authorities referred to speak of lost 
 property; and we are of opinion, therefore, that there was no error 
 in the charge of the court in reference to the facts in this case, and 
 we affirm the judgment. 2 
 
 IV. Trespass in the Appropriation op Goods Delivered by the 
 
 Owner. 
 
 (A) When Delivery Gives Possession. 
 
 REX v. MEERES. 
 
 (Old Bailey, 1G8S. 1 Show. 50.) 
 
 Indictment at the Old Bailey, 16th May last, against Mary Meeres 
 and Susan Vicars, for the stealing a rug and other goods of Robert 
 Geery. Upon not guilty pleaded, a special verdict, that Susan Vicars 
 and her husband, lately deceased, took a lodging room in the house 
 
 2 Accord: Rex v. Wynne, 1 Leach (4th Ed.) 413 (1786) ; People v. Swan, 
 1 Parker, Cr. R. (N. Y.) 9 (1839) ; State v. McCann, 19 Mo. 249 (1S53) ; Reg. 
 v. West, Dears. 402 (1854); Pritchett v. State, 2 Sneed (Tenn.) 285, 62 Am. 
 Dec. 468 (1854); Pyland v. State, 4 Sneed (Tenn.) 357 (1857); Reg. v. 
 Moore, 8 Cox O. C. 416 (1861); State v. Cummings, 33 Conn. 260, 89 Am. 
 Dec. 208 (1866); State v. Farrow, 61 N. C. 161, 93 Am. Dec. 585 (1867).
 
 442 LARCENY. (Ch. 13 
 
 of Richard Geery, furnished with the goods mentioned in the in- 
 dictment from week to week, at two shillings per week; that the 
 key of the door, was delivered to the said Susan, which she kept; 
 that Susan paid one week's payment for the room and lodging, and 
 continued therein about four weeks; that the said Susan and Mary, 
 on the day in the indictment, and before the expiration of the fourth 
 week, took and carried away the goods, et si., etc. 1 
 
 Chief Justice Holt thought it no felony. PollExsen thought it 
 was, and that a lodger had the bare use as a guest hath, and that 
 fieri fac. against the landlord would reach these goods as is the con- 
 stant practice ; that no indebitatus lay for the rent of the room, which 
 shows the money was for the room and not the goods. Atkins, that 
 it was no felony, and that a lodger had more than a bare use, and 
 nowadays lodgings furnished, and perhaps the greater part of the 
 house, are taken by the year, and there is no difference in the time. 
 Nevil, no felony. Turton, no felony. RokESE-y, thought it no felony, 
 because no intent found to steal, either in the taking the lodgings or 
 in carrying away the goods. Ventris, of the same. But all thought 
 it a point deserving very good consideration. 
 
 REX v. LEIGH. 
 
 (Court for Crown Cases Reserved, 1S0O. 1 Leach, C. C. 411, note.) 
 
 Elizabeth Leigh was indicted at Wells Assizes in the summer of 
 1800 for stealing various articles, the property of Abraham Dyer. 
 It appeared that the prosecutor's house, consisting of a shop contain- 
 ing muslin and other articles mentioned in the indictment, was on 
 fire, and that his neighbors had in general assisted at the time in re- 
 moving his goods and stock for their security. The prisoner probably 
 had removed all the articles which she was charged with having 
 stolen, when the prosecutor's other neighbors were thus employed ; 
 and it appeared that she removed some of the muslin in the presence 
 of the prosecutor and under his observation, though not by his de- 
 sire. Upon the prosecutor applying to her the next morning, she de- 
 nied that she had any of the things belonging to him, whereupon he 
 obtained a search warrant and found his property in her house ; most 
 of the articles artfully concealed in various ways. But it was sug- 
 gested that she originally took the articles with an honest purpose, as 
 her neighbors had done, and that she would not otherwise have taken 
 Mine of tlieni in the presence and under the view of the prosecutor, 
 and that therefore the case did not amount to felony. The jury, from 
 the observations they received from the court, found her guilty, but 
 said that, in their opinion, when she first took the goods from the 
 shop she had no evil intention, but that such evil intention came upon 
 
 i Argumenl of counsel is omitted.
 
 Sec. 4) THE TRESPASS. 443 
 
 her afterwards. And upon a reference to the judges in Michaelmas 
 Term, 1800, all (absent, Lawrence, J.) held the conviction wrong, 
 for that, if the original taking were not with intention to steal, the 
 subsequent conversion was no felony, but a breach of trust. 
 
 REGINA v. EVANS. 
 (Abingdon Assizes, 1842. 1 Car. & M. 632.) 
 
 Larceny. The prisoner was indicted for stealing a waistcoat, the 
 property of Joseph Johnson. 
 
 It was proved by the prosecutor, that he, on the 31st of May, 1842, 
 gave the waistcoat into the hands of the prisoner to take to Eliza 
 Rose to have it washed; and it was proved by Eliza Rose that the 
 prisoner brought the waistcoat to her to be washed, at the same time 
 telling her it was his own ; and she further stated that she washed 
 the waistcoat and delivered it to the prisoner on the 5th of June ; 
 and it was also proved that the prisoner, when he was apprehended, 
 told the constable where to find it. 
 
 Tyrwhitt, for the prosecution, referred to 3 Inst. 107. 
 
 Erskine, J. I think that the prisoner's getting back the waistcoat 
 from Eliza Rose was no larceny, because he delivered it to her as 
 his own. He must, therefore, be taken to have converted it to, his own 
 use before he delivered it to her. There is, however, one question 
 on which the case must go to the jury. 
 
 The prisoner was called on for his defense. 
 
 Erskine, J., left it to the jury to say whether the prisoner, at the 
 time when he received the waistcoat from the prosecutor, had an in- 
 tention of stealing it, for that if, at that time, he had not an intention 
 of stealing it, he was entitled to be acquitted. 
 
 Verdict — Not guilty. The foreman of the jury adding: "We find 
 that the prisoner had no intention to steal the waistcoat at the time 
 when he received it from the prosecutor." 1 
 
 CARRIER'S CASE. 
 
 (Star Chamber and Exchequer Chamber. 1473. Y. B. 13 Edw. IV, 9. pi. 5)- 
 
 In the Star Chamber before the King's Council such matter was 
 shown and debated; where one has bargained with another to carry 
 certain bales with, etc., and other things to Southampton, he took 
 
 i Accord: Reg. v. Fletcher, 4 Car. & P. 545 (1831) ; Reg. v. Savage. 5 Car. 
 & P. 143 (1831). 
 
 2 This case is printed from the translation in Pollock & Wright's Possession 
 In the Common Law.
 
 414 LARCENY. (Cll. 13 
 
 them and carried them to another place and broke up (debrusa) the 
 bales and took the goods contained therein feloniously, and converted 
 them to his proper use and disposed of them suspiciously; if that 
 may be called felony or not, that was the case. 
 
 Brian, C. J. I think not, for where he has the possession from the 
 party by a bailing and delivery lawfully, it cannot after be called 
 felony nor trespass, for no felony can be but with violence and vi 
 et armis, and what he himself has he cannot take with vi et armis 
 nor against the peace: therefore it cannot be felony nor trespass, for 
 he may not have any other action of these goods but action of detinue. 
 
 Hussey, the King's Attorney. Felony is to claim feloniously the 
 property without cause to the intent to defraud him in whom the prop- 
 erty is, animo furandi, and here notwithstanding the bailment ut supra 
 the property remained in him who bailed them, then this property 
 can be feloniously claimed by him to whom they were bailed, as well 
 as by a stranger, therefore it may be felony well enough. 
 
 The Chancellor. Felony is according to the intent, and his in- 
 tent may be felonious as well here as if he had not the possession. 
 
 Molineux ad idem. A matter lawfully done may be called felony 
 or trespass according to the intent ; sc. if he who did the act do not 
 pursue the cause for which he took the goods, as if a man distrain 
 for damage feasant or rent in arrear and then he sell the goods and 
 kill the beasts, this is tort now where at the beginning it was good. 
 So if a man come into a tavern to drink it is lawful, but if he carry 
 away the piece or do other trespass then all is bad. So although the 
 taking was lawful in the carrier ut supra, etc., yet when he took the 
 goods to another place ut supra he did not pursue his cause, and so 
 by his act after it may be called felony or trespass according to the 
 intent. 
 
 Brian, C. J. Where a man does an act out of his own head, it may 
 be a lawful act in one case and in another not, according to his act 
 afterwards, as in the cases which you have put, for there his intent 
 shall be judged according to his act; but where I have goods by 
 your bailment, this taking cannot be made bad after by anything. 
 
 Vavisour. Sir, our case is better than a bailment, for here the 
 things were not delivered to him, but a bargain that he should carry 
 the goods to S. ut supra: and then if he took them to carry them 
 /thither, he took them warrantably; and the case put now upon the 
 matter shows, that is, his demeanor after shows, that he took them 
 as felon, and to another intent than to carry them Ut supra, in which 
 case he took them without warrant or cause, for that he did not pur- 
 sue the cause, and so it is felony. 
 
 Ciiokk, J. 1 think that where a man has goods in his possession 
 by reason of a bailment he cannot take them feloniously, being in 
 possession ; but still it seems here that it is felony, for here the things 
 which were within the hales were not bailed to him, only the bales 
 «s an entire thing were bailed ut supra to carry; in which case if he
 
 Sec. 4) THE TRESPASS. 415 
 
 had given the bales or sold them, etc., it is not felony, but when he 
 broke them and took out of them what was within he did that with- 
 out warrant, as if one bailed a tun of wine to carry, if the bailee sell 
 the tun it is not felony nor trespass, but if he took some out it is fel- 
 ony 2 ; and here the twenty pounds were not bailed to him, and per- 
 adventure he knew not of them at the time of the bailment. So is it 
 if I bail the key of my chamber to one to guard my chamber, and he 
 take my goods within this chamber, it is felony for they were not 
 bailed to him. 
 
 [It was then moved that the case ought to be determined at com- 
 mon law ; but the Chancellor seems to have thought otherwise, for 
 the complainant was a merchant stranger, whose case ought to be 
 judged by the law of nature in chancery, and without the delay of 
 trial by jury. However the matter was afterwards argued before the 
 judges in the Exchequer Chamber, and there.] 
 
 It was holden by all but Nedham, J., that where goods are bailed 
 to a man he cannot take them feloniously ; but Nedham held the con- 
 trary, for he might take them feloniously as well as another; and he 
 said it had been held that a man can take his own goods feloniously, 
 as if I bail goods to a man to keep, and I come privily intending to 
 recover damages against him in detinue and I take the goods privily, 
 it is felony. And it was holden that where a man has possession and 
 that determines, he can then be felon of the things, as if I bail goods 
 to one to carry to my house, and he bring them to my house and then 
 take them thereout it is felony ; for his possession is determined when 
 they were in my house ; but if a taverner serve a man with a piece, 
 and he take it away, it is felony for he had not possession of this 
 piece; for it was put on the table but to serve him to drink: and 
 so is it of my butler or cook in my house ; they are but ministers to 
 serve me, and if they carry it away it is felony, for they had not pos- 
 session, but the possession was all the while in me ; but otherwise 
 peradventure if it were bailed to the servants so that they are in pos- 
 session of it. 
 
 Laicon, J. I think there is a diversity between bailment of goods 
 and a bargain to take and carry, for by the bailment he has delivery 
 of possession, but by the bargain he has no possession till he take 
 them, and this taking is lawful if he takes them to carry, but if he 
 take them to another intent than to carry them, so that he do not pur- 
 sue his cause, I think that shall be called felony well enough. 
 
 Brian, C. J. I think that it is all one, a bargain to carry them, 
 and a bailment, for in both cases he has authority of the same per- 
 son in whom the property was, so that it cannot be called felony: 
 
 2 "But I marvel at the case put, 13 Edw. IV, 9: That If a carrier have a 
 tun of wine delivered to him to carry to such a place, and he never carry It, 
 but sell it, all this is no felony, but if he draw part of it out above the 
 value of twelvepence, this is felony. I do not see why the disposing of the 
 whole should not be felony also." Kel. 83.
 
 UQ LARCENY. (Ch. 13 
 
 M. 2 E. Ill, in an indictment "felonice abduxit unum equum" is bad, 
 but it should be cepit. So in eyre at Nott., 8 E. Ill ; and in this case 
 the taking cannot be feloniously, for that he had the lawful pos- 
 session, so then the breaking the bales is not felony. Vide -i E. II, 
 in trespass, for that plaintiff had bought a tun of wine of defendant, 
 and while it was in defendant's guard defendant came with force 
 and arms and broke the tun and carried away parcel of the wine and 
 filled up the tun with water. 
 
 And for that it appeared he had possession before, the writ being 
 vi et armis was challenged, and yet it was held well and he pleaded 
 not guilty, and then the Justices reported to the Chancellor in Coun- 
 cil that the opinion of the most of them was that it was felony. 
 
 LANGLEY v. BRADSHAW. 
 
 (King's Bench, 1632. Rol. Abr. 73, pi. 16.) 
 
 If a man say to a miller who keeps a mill, thou hast stolen three 
 pecks of meal, action lies, for although the corn was delivered to 
 him to grind, yet if he steal the meal it is felony, being taken from 
 the residue. 1 
 
 REX v. MADOX. 
 (Court for Crown Cases Reserved, 1805. Russ. & R. 92.) 
 
 This was an indictment for a capital offense on St. 24 Geo. II, c. 45, 
 tried before Mr. Baron Graham at the Summer Assizes at Winchester, 
 in the year 1805. 
 
 The first count was for stealing at West Cowes 6 wooden casks and 
 1,000 pounds weight of butter, value i20, the goods of Richard Brad- 
 ley and Thomas Clayton, being in a certain vessel called a sloop in 
 the port of Cowes, the said port being a port of entry and discharge, 
 against the statute. The second count was for grand larceny. The 
 third count was like the first, except as to the property in the goods, 
 which was laid in one Richard Lashmore ; and the fourth count was 
 for grand larceny of the goods of the said Richard Lashmore. 
 
 The butter stolen was part of a cargo of 280 firkins or casks, shipped 
 at Wat< rford, in Ireland, on 1><>ard a__s loop, t he_j^njamiii T -oi- which 
 the prisoner was master and owner, bound tcTShoreham and New- 
 haven, in Sui ■ . ; ZZO of the casks being consigned to Bradley and 
 Clayton at Shoreham, and 50 of them to Lashmore at Brighthelmstone. 
 
 It appeared thai the ordinary length of this voyage, with fair winds, 
 was a week or nine days, hut in winter sometimes a month or five 
 
 i Accord: < •mnmonwenlth v. Jnnios, 1 Pick. (Mass.) 375 (1S23).
 
 Sec. 4) THE TRESPASS. 447 
 
 weeks. In the present instance the voyage had been of much longer 
 duration. 
 
 The vessel first touched at Sheepshead, in Ireland, in distress. The 
 prisoner went on shore at Beerhaven, where he signed a protest, bear- 
 ing date on the 20th December, 1801. From thence they proceeded to 
 Lundy Island, and to Tenby, in Wales, where they arrived in Feb- 
 ruary, 1805, and at which place the prisoner went on shore and stayed 
 four or five weeks; the winds being foul. From thence they pro- 
 ceeded to Scilly, and then to Cowes, where they arrived on the last 
 day of March, or the 1st of April, 1805. Cowes was in their course, 
 but they had previously met with very foul weather, and had been 
 driven to the westward of Madeira, during which time the vessel had 
 been often in great distress; but no part of the butter had at any time 
 been thrown overboard. Upon the arrival at Cowes the prisoner went 
 on shore, and shortly afterwards applied to one Lallow, a sailmaker, 
 for a suit of sails. Lallow went aboard the vessel, and took measure 
 for the sails, and after his return to Cowes the prisoner called upon 
 him again and bespoke a hammock, and then stated that he had 13 
 casks of butter on board the vessel belonging to himself, and request- 
 ed Lallow to send for them and deposit them in his sail loft until the 
 prisoner returned from Newhaven. At the same time he gave Lallow 
 a note, or order, for the mate of the vessel, by which the mate was 
 required to deliver 13 casks of butter to the bearer. Lallow despatch- 
 ed some of his men with the order and a boat to the vessel, where they 
 arrived in the night, and after having delivered the order to the mate 
 received from him 7 casks of butter in the first instance, being as 
 much as the boat would carry, and upon their return to the vessel, 
 during the night, received from the mate the other 6 casks. The 
 order did not require the mate to deliver any particular casks; and it 
 appeared by the evidence of the mate that he took them as they came 
 to hand. The casks had been originally stowed in the hold and up- 
 on the half decks as they came on board, and those delivered to Lal- 
 low's men were taken from the half decks; the others being battened 
 down. The 7 casks first delivered by the mate were taken to 
 Lallow's premises and deposited there. The other 6 casks were seized 
 by the custom house officers. The prisoner was at Cowes, and was 
 informed by Lallow of the seizure, at which he expressed anger, speak- 
 ing of the seizure as a robbery, and of the casks so seized as his own 
 property and venture. He also spoke of going to claim his property, 
 and afterwards told Lallow that he would give him an order- to claim 
 it, as he must himself go away. The prisoner afterwards went to the 
 vessel, and passsed the rest of the night on board. The remainder of 
 the cargo was delivered at Shoreham and Newhaven. 
 
 The protest made by the prisoner, and bearing date at Beerhaven, 
 the 20th of December, 1804, purported, amongst other things, that 
 the prisoner had been obliged to throw overboard several casks of 
 butter. And it appeared that he had held the same language to the
 
 448 LARCENY. (Ch. 13 
 
 consignees as his excuse for delivering short of their respective con- 
 signments. 
 
 Upon this case the counsel for the prisoner raised two objections: 
 First, that no larceny had been committed by the prisoner; and, sec- 
 ondly, that the offense was not capital — the larceny, if any, being of 
 goods in his own vessel. 
 
 Upon the first objection, it seemed to be admitted that if the mate, 
 by the order of the prisoner, had broken bulk by taking the casks 
 from those which were battened down, it might have been larceny 
 in the prisoner; and the learned judge thought that as the casks were 
 taken from the half deck, where they were originally stowed, there 
 was no material difference. It was then contended that the prisoner 
 went into Cowes without any necessity and out of the course of his 
 voyage ; and the case was compared to those wherein it had been 
 held that if goods are delivered to a carrier to carry to a certain place, 
 and he carries them elsewhere, and embezzles them, it is no felony. 
 But the learned judge thought that the severance of a part from the 
 rest, and the formed design of doing so, took the case out of those 
 authorities, if they could be considered as applying to the present case. 
 
 Upon the second objection, those cases were cited wherein it had 
 been held that St. 12 Anne, c. 7, against larceny in a dwelling house, 
 to the value of 40 shillings, does not extend to a stealing by a man in 
 his own house; but the learned judge thought that, though this might 
 be the law as to a person stealing the goods of another under the pro- 
 tection of his own house, yet the case of a man stealing the goods of 
 another laden on board his own vessel was different, as in such case 
 the vessel, for the voyage, might be considered as the vessel of the 
 freighter, and that, if the owner should take the command of the ves- 
 sel, the stealing the goods committed to his care would be an aggrava- 
 tion of his offense. And he further observed that the words and oc- 
 casion of the two statutes would admit of a distinction. 
 
 The whole case was therefore left to the jury, who found the pris- 
 oner guilty ; but the sentence was respited, in order that the opinion 
 of the judges might be taken. 
 
 In Michaelmas Term, 1805, the case was considered by the judges, 
 who were of opinion that it was not larceny, and that, if it were larceny, 
 it would not have amounted to a capital offense within St. 24 Geo. 
 
 II, C I-K 1 
 
 i Bee, .Use. i;<-x v. Pratley, 5 Car. & P. 533 (1833); Reg. v. Cornish, 1 
 Dear* 126 (1854).
 
 
 Sec. 4) THE TRESPASS. 449 
 
 REX v. BRAZIER. 
 (Court for Crown Cases Reserved, 1817. Russ. & R. 337.) 
 
 The prisoner was tried before Mr. Justice Holroyd at the Summer 
 Assizes for the town of Nottingham, in the year 1817, on an indict- 
 ment for stealing 15 bushels of wheat, of the goods and chattels of 
 Thomas Neale. 
 
 Thomas Neale, a farmer, sent 40 bags, containing 20 quarters, of 
 his wheat to the prisoner, who was a wharfinger and warehouseman 
 in the town of Nottingham, and who received the same into his ware- 
 house there for safe custody for the said Thomas Neale. The wheat 
 was to lie there until sold by the prosecutor. The prisoner had no 
 authority to sell it. It was proved that Neale did not give any au- 
 thority to the prisoner to make any alteration in the wheat, or to open 
 the bags in order to show them, or for any other purpose. 
 
 While the wheat thus remained in the prisoner's warehouse for safe 
 custody, and was the property of Neale, the prisoner's servant, by the 
 prisoner's order, took eight of the bags, containing four quarters, of 
 the above wheat from the rest, and, shooting the wheat out of the bags 
 upon the warehouse floor, mixed it with four bags of different wheat 
 of an inferior quality and value. When so mixed, the whole was, by the 
 prisoner's order, put into twelve other bags, and afterwards sent away 
 and disposed of by him for his own benefit. Afterward, by the pris- 
 oner's orders, the above four quarters of Neale's wheat were replaced 
 with an equal quantity of the prisoner's wheat, of very inferior quality 
 and value, by mixing the same with two quarters of the residue of 
 Neale's wheat, and replacing the same when so mixed in the bags from 
 whence the four quarters of Neale's wheat had been removed, as before 
 mentioned. Another part of Neale's wheat was in like manner fraud- 
 ulently removed, mixed, and replaced by the prisoner's orders; and 
 sixteen of the above bags, containing eight quarters of the wheat so 
 mixed, as before stated, were afterwards delivered by the prisoner to 
 the vendee of Thomas Neale, as being part of the wheat deposited by 
 Neale in the prisoner's warehouse. 
 
 It did not appear that there was any severing of part of the wheat 
 in any one bag from the residue of the wheat in the same bag, with 
 intent to steal or embezzle that part only that was so severed, and not 
 the residue in the same bag from which it was so severed. 
 
 The jury, being of opinion that the facts above stated were proved, 
 found the prisoner guilty of larceny; but the learned judge respited 
 the judgment, and reserved the point for the consideration of the 
 judges. 
 
 In Michaelmas Term, 1817, eleven of the judges met and considered 
 this case. They were unanimously of opinion that the conviction was 
 right, that the taking the whole of the wheat out of any one bag was 
 Mik.Cb.L.— 29
 
 450 larceny. (Ch. 13 
 
 no less a larceny than if the prisoner had severed a part from the residue 
 of the wheat in the same bag, and had taken only that part, leaving 
 the remainder of the wheat in the bag. 1 
 
 REX v. SEMPLE. 
 (Old Bailey, 178G. 1 Leach [4th Ed.] 420.) 
 
 At the ensuing session the prisoner, J. G. Semple, was again indicted 
 for the same offense, 2 before Adair, Recorder; present, Mr. Justice 
 Gould. 
 
 The following facts appeared in evidence: The prosecutor, Mr. 
 Lycett, was a coachmaker, who let out carriages to hire. The prisoner 
 was a gentleman who lodged in the neighborhood under the name of 
 Maj. Harrold, and had frequently hired chaises from the prosecutor 
 as the occasion required, and for which he had always paid with great 
 punctuality. On the 1st of September, 1785, the prisoner hired a post 
 chaise of the prosecutor, saying that he should want it for three 
 weeks or a month, as he was going a tour round the North. It was 
 agreed that the prisoner should pay at the rate of five shillings a day 
 during the time that he kept the chaise, and a price of fifty guineas 
 was talked about in case he should determine to purchase the chaise 
 on his return to London ; but no positive agreement took place be- 
 tween them on the subject of the purchase. In a few days afterwards 
 the prisoner fetched the chaise from Mr. Lycett's with his own horses ; 
 and it was in evidence that he was driven in it from London to the 
 Crown and Cushion at Uxbridge, where he ordered a pair of horses, 
 and went from thence to the Duke of Portland's, and returned. He 
 took fresh horses at the Crown and Cushion, but where he went with 
 the chaise afterwards did not appear. The fact was he never re- 
 turned it to Mr. Lycett, nor could any tidings be obtained of him till 
 twelve months afterwards, when he was accidentally apprehended by 
 
 i "I think that this was a case of bailment, although the prosecutor's 
 
 servants were on board, because they were there under the prisoner's con- 
 
 Thni being so, if the prisoner had not taken the staves out of the boat, 
 
 the mere nondelivery of them would not have amounted to larceny; but the 
 
 prisoner separating one of the articles from the rest and taking it to a place 
 
 renl from thai of Its destination was, if he did it with Lntenl to approprl- 
 
 it to his own use, equivalent to breaking bulk, and therefore would be, 
 
 Bufflcienl to constitute a larceny." Patteson, J., in Hex v. Howell, 7 Car. & 
 
 P. 826 (1835). 
 
 See, also, Reg. v. Poyser, 2 Den. C. C. 238 (1851). In Nichols v. People, 
 
 it N. \. in (185S), it was held (Denio, J., dissenting) thai the separation by 
 
 a carrier, without the assenl of the owner, of Bundry bars of iron, part of a 
 
 er number thai had been delivered to him for transportation, was a break- 
 
 Ing of bulk, making a Bubsequenl conversion of such separated bars larceny. 
 
 Accord: Commonwealth v. Brown, 4 Mass. 580 (1808). But see Rex v. 
 
 y, ,i.i,b, 6] (1828). 
 
 2 Larceny.
 
 Sec. 4) THE TRESPASS. 451 
 
 the activity of Mr. Feltham, in Fleet street, upon a suspicion of hav- 
 ing, under false pretenses, defrauded him of a quantity of ladies' hats. 
 Garrow, for the prisoner, submitted to the court that, admitting the 
 whole of the evidence to be true, the offense did not amount to felony, 
 and he endeavored to distinguish the case from that of Pear's Case, 1 
 Leach, 212, and Aickle's Case, 1 Leach, 294, inasmuch as in those 
 cases the parties had never obtained the legal possession of the prop- 
 erty delivered to them, but that in the present case the prisoner had 
 . obtained the chaise upon a contract, which it was not proved that he 
 had broken ; for the chaise was not hired for any definite length of 
 time, or to go to any certain place, and the mere understanding that 
 it was for three weeks or a month, for the purpose of making a tour 
 round the North, made no part of the contract. He had hired it for 
 such a length of time as he should please to keep it, at a certain stipu- 
 lated price for each day; and, it being delivered to him upon those 
 terms, he had the entire possession of it in himself, and was answer- 
 able in damages for its detention, or for any injury which might hap- 
 pen to it during his absence. But, supposing the contract should be 
 thought not to extend beyond the three weeks or a month ; it is clear 
 that during that time he had at least the legal possession, and then no 
 intention to convert it wrongfully to his own use, arising afterward, 
 whether from necessity or dishonesty, will make the withholding it 
 felony, for the animus furandi must exist at the time the property is 
 obtained. In all the leading cases upon this subject of constructive 
 felony, there has always been some evidence of a tortious conversion ; 
 but in this case it has not been proved that the prisoner has disposed 
 of the chaise. It may be at this very moment in his possession, for 
 anything that appears to the contrary, and a conversion cannot be in- 
 ferred from his having neglected to return it. 
 
 The Court. The court is bound by the determination of former 
 cases. It is now settled that the question of intention is for the con- 
 sideration of the jury; and in the present case, if they should be of 
 opinion that the original hiring of the chaise was felonious, it will fall 
 precisely within the principle of Pear's Case and the other decisions 
 which the judges have made upon the subject of constructive felony. 
 If there was a bona fide hiring of the chaise, to pay so much for every 
 day for the use of it, and a real intention of returning it, a subsequent 
 conversion of it cannot be felony, whether the time for which it was 
 hired be limited or indefinite.; for by the bona fide contract, and sub- 
 sequent delivery, the prisoner would have acquired the lawful pos- 
 session of it, and therefore, although he afterwards abused that trust 
 and that possession, felony could not ensue, because the original tak- 
 ing was lawful. But, on the other hand, if the hiring was only a pre- 
 tense made use of to get the chaise out of the possession of the owner, 
 without any intention to restore it or to pay for it, in that case the law 
 supposes the possession still to reside with the owner, though the 
 property itself is gone out of his hands, and then the subsequent con
 
 452 LARCENY. (Ch. 13 
 
 version will be felony. The case of The King v. Pear was very sol- 
 emnly debated at Lord Chief Justice De Grey's house ; and the unani- 
 mous opinion of the judges was at last that the direction given to the 
 jury by the learned judge who tried the prisoner was right. The most 
 important part of the argument turned upon the consideration wheth- 
 er the delivery of the horse to Pear had in law divested the owner ei- 
 ther of his property or the possession of it. The question left with 
 the jury was whether the contract was meant fairly, or whether it was 
 a mere color and pretense. The jury found that it was a mere color 
 and pretense, and upon that finding the judges determined the taking 
 to be felony, because it is an established principle of law that the pos- 
 session of property cannot be obtained through the medium of a fraud. 
 But it has been attempted to distinguish the present case from The 
 King v. Pear : First, that the hiring in this case was indefinite, but that 
 in The King v. Pear it was certain and limited. The time cannot be 
 material in questions of this nature. Pear hired the horse in the morn- 
 ing, under the pretense of going to Sutton, in Surrey, and to return 
 in the evening; but. as the hiring was found to be felonious, the law 
 of the case must have been the same, although it had appeared that 
 the hiring was for two days, a week, a month, or any other given time 
 — nay, if the time had been left entirely unlimited. The circumstances 
 of the time being long or unsettled may, indeed, render the proof of 
 guilt more difficult, but cannot alter the law of the case. Secondly, 
 it is said that this case differs from The King v. Pear, because it was 
 proved that Pear had sold the horse, and therefore had converted it 
 to his own use, but that in the present case no proof has been given 
 that the prisoner has sold or otherwise converted the chaise. Proof 
 of actual conversion certainly is not necessary, but the jury must judge 
 of it from the circumstances of the case. If the prisoner, at any time 
 before the prosecution was commenced, had offered to restore the 
 chaise to the owner, or to pay him for it, such conduct would have 
 been evidence of an honest intention when he originally hired it, and 
 would have reprobated the idea of a fraudulent design. But he hires 
 the chaise for a month, and a year passes, and neither the chaise nor 
 the man are heard of until he is taken. There is no evidence even at 
 this moment that the chaise is forthcoming, nor docs any one pretend 
 to know where it is. This, therefore, raises a presumption against the 
 r, which it is incumbent on him to repel; and. if he cannot, 
 it will be for the consideration of the jury, under all the circum- 
 stances of the case, whether they think he has feloniously disposed 
 of it, or otherwi e converted it to his own use. In their determi- 
 nation of this point they must recur to the time of the original 
 hiring, and to the nature and meaning of the contract then made 
 between the parties. If they think the redelivery of the chaise form- 
 ed any pari of the contract, the nondelivery of it must necessarily 
 form a part of their consideration. They will then consider wheth- 
 er the nondelivery is sufficient evidence to satisfy their consciences
 
 Sec. 4) THE TRESPASS. 453 
 
 that he has converted it to his own use. These two considerations 
 will naturally lead to a third, viz., whether the property thus con- 
 verted was originally obtained with a felonious design, which will 
 carry them back to the instant of time that he obtained possession 
 of it; and, if they should find the original hiring was felonious, 
 the most ingenious subtlety cannot distinguish this case from that 
 of The King v. Pear. There is a case in Kelynge of a person who 
 took a lodging in a house, and afterwards at night, while the peo- 
 ple were at prayers, robbed them. The jury found that the inten- 
 tion of taking the lodging was to commit the felony, and the judges 
 determined that this was burglary. There was also a case deter- 
 mined very lately by the judges. A man ordered a pair of candle- 
 sticks from a silversmith to be sent to his lodgings. They were 
 sent to his lodgings, with a bill of parcels; but he contrived to send 
 the servant back, and to keep the goods, and this was held to be 
 felony, although they were delivered with the bill of parcels, under 
 an expectation of being paid the money, for the jury found that it 
 was a pretense to purchase, with intention to steal. 
 
 The question of original intention was left with the jury, and 
 they found the prisoner guilty. A motion was made in arrest of 
 judgment, but it was overruled, and he received sentence of trans- 
 portation for seven years. 2 
 
 REGINA v. HEHIR. 
 (Queen's Bench Division, 1S95. [1895] 2 Ir. R. 709.) 
 
 Denis Hehir was indicted for the larceny of a £10 note, of the 
 goods and chattels of one John Leech. It appears from the evidence 
 that this £10 note was handed by Leech to Hehir in part payment 
 of a sum of £2. 8s. 9d. due by the former to the latter, and that, at 
 the time when it was so handed, both Leech and Hehir believed it to 
 be a £1 note. It further appears that, after the lapse of a substantial 
 period of time, Hehir became aware that the note was one for £10, 
 whereupon, in the words of the case, "he fraudulently and without 
 color of right intended to convert the said note to his own use, and 
 to permanently deprive the said John Leech thereof, and that to ef- 
 fectuate such intention the said prisoner shortly afterwards changed 
 the said noie and disposed of the proceeds thereof." 
 
 The case was left by the Lord Chief Baron to the jury (who found 
 the prisoner guilty), in order to obtain an authoritative decision up- 
 
 2 Accord: Reg. v. Janson, 4 Cox, C. C. 82 (1S49) ; Reg. v. Brown, Dears. 
 616 (lST.G) ; Reg. v. Thompson. Leigh & C. 227 (1S62). 
 
 "It is quite immaterial whether a man obtains possession of property, 
 with intent to convert it to his own use, by means of a trick, or whether 
 he gets it with the like intent, by placing himself iD a convenient position, 
 where it is probable that he will be intrusted with it." Pollock, G. B., in 
 Reg. v. Thompson, Leigh & C. 225 (1S62).
 
 45-i LARCENY. (Ch. 13 
 
 on a question upon which the Court for Crown Cases Reserved in 
 England was equally divided in The Queen v. Ashwell, 16 Q. B. D. 
 190. That question he reserved for this court in the following words : 
 "Whether I ought to have directed a verdict of acquittal by reason 
 of the prisoner not having had the animus furandi when Leech handed 
 him the £10 note?" 1 
 
 Gibson, J. 2 What we have to deal with is common mistake of 
 identity of such a character as excludes the mutual assent necessary 
 to the existence of contract. That the subject-matter is money can 
 make no difference in this respect. No doubt if the taker cashed 
 the note, and gave the owner back the change, his conduct in so doing 
 would displace animus furandi. But on the question of consent and 
 no consent, on which the determination of trespass depends, I cannot 
 discern any substantial difference between a bank note and any 
 other chattel. A bank note indorsed by the Duke of Wellington 
 might have a fancy value, and a person getting it by mistake could 
 hardly insist on holding it, if he chose to pay the difference in face 
 value. 
 
 For the purpose of the inquiry I shall assume it as unquestionable 
 law that, as a common-law offense, larceny involves an unlawful 
 violation of possession and that it cannot be committed where pos- 
 session has been acquired in its origin lawfully. I shall confine myself 
 to two points: The first, the effect of mistake — considered from the 
 receiver's side — on the acquisition of possession ; the second, the effect 
 of mistake — considered from the owner's side — on the question of the 
 lawfulness of such acquisition. The solution of both these questions 
 ultimately must depend on the effect and meaning of consent of the 
 taker on the one hand and of the owner on the other, but it is con- 
 venient to discuss them separately. 
 
 First, as to the acquisition of possession. What is to be examined 
 is legal possession, as distinct on the one hand from physical or ap- 
 parent possession, sometimes called custody or detention, and on the 
 other from right to possess, or ownership. A man is holding an 
 umbrella. He may have it as owner, thief, or servant. So far as 
 external appearances go, there is no difference, yet as owner or as 
 thief he would be in legal possession. As owner, he would be in 
 lawful possession; as servant, he would not be in possession at all. 
 Why is this? Because possession denotes, in addition to a material, 
 a legal and mental relation. In Roman law, possession meant the 
 occupation of anything with the intention of exercising rights of own- 
 ership in respect of it. "Apiscimur possessionem animo et corpore, 
 ncf|Mc per se animo ant per se corpore." Dig. 41, 2, 3, 1. The defini- 
 tion in Sir J. vStephcn's Digest also introduces the element of inten 
 tion. I have no doubt that in English law physical occupation is 
 
 i Part of this cage Is omitted. The Facta are printed from the opinion of 
 Madden, J. 
 2 Part of tin' opinion is omitted
 
 Sec. 4) THE TRESPASS. 455 
 
 not identical with possession. If it were, a servant would be pos- 
 sessed of his master's chattel; whereas, we know that the posses- 
 sion is the master's. The analysis of the legal conception of posses- 
 sion, though to a lawyer familiar, wears an appearance of subtlety; 
 but in real property cases I have never found any difficulty in con- 
 veying to a jury how acts, physically identical, may be distinguished, 
 according to the rights, relations, intent, and circumstances of par- 
 ties, as vesting or divesting possession, or as not having that effect. 
 Leigh v. Jack, 5 Ex. D. 264 ; Pollock & Wright on Possession, passim. 
 For some purposes, and in some relations, as in case of trespass 
 (Riley's Case, Dears. C. C. 640), apparent possession may be tanta- 
 mount to legal possession as possession may be relative. As a gen- 
 eral rule, however, legal possession imports knowledge and consent. 
 When Joseph replaced in his brethren's sacks, without their knowl- 
 edge, the price of the corn they had bought, though they had ap- 
 parent dominion and control over the sacks, with their contents, they 
 were no more, before discovering it, in possession of the money 
 which Joseph had put in by an act of trespass, than they would have 
 been of dynamite secretly placed there. 
 
 In the present case there was a physical delivery, in intended per- 
 formance of a contract, without knowledge or intent on the part of 
 the owner to give, or on the part of the taker to accept, possession 
 of the particular chattel actually delivered. Until discovery by the 
 taker, the legal possession seems not to be divested out of the owner, 
 if it be not in suspense. Until knowledge and election, the law ought 
 not to attribute to the taker an intent to divest the owner's posses- 
 sion without his consent, which would be a wrongful act, or to accept 
 a possession which in case of some chattels might be onerous. The 
 physical occupation raises an inference of legal possession, just as 
 it does of property of which possession is part and symbol ; but com- 
 mon error, which rebuts contract, also rebuts that inference. The 
 character of the physical possession is ambiguous until discovery, 
 and ought to be interpreted in an innocent rather than a tortious sense. 
 If, upon discovery, the taker elects to return the chattel to the proper 
 custody, as it is his duty to do, his previous relation to the chattel is 
 thereby determined, as resembling custody rather than possession. 
 On the other hand, if he then decides to misappropriate, knowing that 
 there has been no consent by the owner, one of two views is possible. 
 His possession up to that time may be regarded as incomplete, and is 
 then finally determined by his tortious election as wrongful through- 
 out. Woodward's Case, L. & C. 122. Or he may be regarded as 
 then and there for the first time taking out of the owner's posses- 
 sion the chattel which is to be considered as mislaid rather than as 
 lost. During the suspense period, his acts done in innocent ignorance 
 • are excused; but the excuse, founded not on consent, but on mis- 
 leading, applies only as far as he is misled, and does not operate when,
 
 456 LARCENY. (Ch. 13 
 
 knowing the mistake, he deliberately commits a tort by taking pos- 
 session of and converting the chattel. 
 
 The second question for consideration is the lawfulness of posses- 
 sion, where the delivery has taken place under a common mistake 
 of such a character as to exclude the mental agreement necessary 
 to the formation of a contract. The mistake may be as to the identity 
 of the transferee (Cundy v. Lindsay, 3 App. Cas. 459), or as to the 
 identity of the subject-matter of contract, as in Middleton's and 
 Ashwell's Cases, or a mistake compounded of both these elements. 
 
 It may be taken that a consent to possession obtained by fraud or 
 force, animo furandi, is unavailing, and that possession under it 
 would be unlawful and trespassory. It is also certain that in such a 
 case as we have here to deal with property cannot pass. If common 
 mistake prevents contract, and property cannot pass, why should pos- 
 session, which is part and symbol of property, pass, when neither 
 party intended to divorce possession from property? Physical delivery 
 by owner to taker may be evidence of consent; but delivery can 
 hardly be conclusive and irrebuttable proof of an intelligent transfer 
 of possession, when neither party intends to make or accept such 
 transfer. 
 
 Apart from Ashwell's Case, 3 16 Q. B. D. 190, I am aware of no 
 direct authority on this point. In Middleton's Case, L. R. 2 C. C. 38, 
 the majority of the court thought that possession was taken invito 
 domino, because, though no fraud was practiced, the prisoner at the 
 moment of delivery was aware of the mistake and had animus furandi. 
 On consideration, I think that animus furandi is distinct from, and is 
 not a necessary part of, trespass, and that, even without animus 
 furandi, a taker, who at the instant of delivery is aware of the mis- 
 take, cannot rely on a consent which he then knows did not in any 
 true sense exist. If the origin of his possession is trespassory, sub- 
 sequent misappropriation would make him a felon. Why is it that 
 the knowledge of the owner's mistake by the taker prevents his 
 relying on consent? It is not because the taker acts fraudulently, 
 for he may have no dishonest intent, but because in that case the 
 taker is not misled. 
 
 I agree with Baron Bramwcll, in Middleton's Case, L. R. 2 C. C. 
 56, that the state of the owner's mind as to consent cannot be govern- 
 ed by the state of the taker's mind as to knowledge of mistake or 
 felonious intent. Take the following illustrations: 
 
 1. A principal receives from an agent a £10 note in mistake for 
 a £5 note, lie sees the mistake and says nothing, intending, without 
 
 Mil Reg. v. Ashwell the Court for Crown Cases Reserved was equally 
 divided on the Question or the guilt of the prisoner on a Blmllar Btate of 
 facts. Those Judges wh<> were in favor of conviction were of opinion that the 
 prisoner did not actually take possession until h<> knew whal the coin was 
 of which lie wns taking possession, ami, as at that time he determined to 
 deprive the owner of his property, there was a concurrence of act and intent 
 See Reg. v. Blowers, n; Cox, c. c. :;•'; (1886).
 
 Seel) THE TRESPASS. 457 
 
 any felonious intent, to give the agent a fright for his carelessness. 
 He afterwards keeps and dishonestly converts the note. 
 
 2. A principal, to test his agent's honesty, hands him a £10 as 
 if in mistake for a £o note. The agent, believing that the principal 
 is really making a mistake, dishonestly keeps the note. In these 
 cases how can the consent of the owner depend on the knowledge 
 and intent of the taker? 
 
 This question of consent is one of substance, and not form. It 
 cannot be treated as disposed of by the fact of physical delivery 
 without more. A delivery by a man in delirium or asleep, or hypno- 
 tized, would be void, because unaccompanied by intelligent volition. 
 The mistake, as it occurs to me, made by many of the learned judges 
 in Ashwell's Case, 16 Q. B. D. 190, seems much the same as that 
 which was corrected in Reg. v. Dee, 14 L. R. Ir. 468. A consent 
 must be to the particular act or thing and to the particular person. 
 A consent to intercourse obtained by fraudulent personation from 
 a married woman, in the belief that the act was marital connection 
 with her husband, was, as there pointed out, no consent at all to 
 an act of adultery with a stranger. This absence of consent does 
 not, I think, depend on fraud. It is a conceivable case that a mar- 
 ried woman might, in the dark, submit to a man whom she believed 
 to be her husband, without guilty intent on his part, from a mistake 
 of rooms or otherwise. In a civil action for assault I doubt that he 
 could justify his possession of the woman by leave and license, 
 though, of course, from absence of mens rea, he would not be guilty 
 of rape. 
 
 It may, however, be said that, irrespective of consent, if the taker 
 of a chattel delivered under mistake is protected by a kind of es- 
 toppel, he is to be deemed, as against the owner, to be lawfully in 
 possession while such estoppel continues; that is, until the mistake be- 
 comes known to him. This suggestion (which has caused me more 
 difficulty than any other point), I think, is founded partly on a con- 
 fusion of physical possession, or custody, with legal possession, and 
 partly on a misunderstanding arising from the use of the word "es- 
 toppel" — an expression which is likely to cause misconception. Un- 
 til discovery, the relation of the taker to the chattel, which he holds 
 without consciousness of its identity, is, against the owner, cus- 
 tody or detention only. So far as he has acted under the mistake, 
 he is protected. This protection extends to his custody of the 
 chattel and to his conduct in parting with the chattel, if he has 
 done so. The delivery under mutual mistake of identity does not 
 work an estoppel in the sense that the property must be taken to 
 pass. But the taker is excused in respect of everything attributable 
 to the mistake for which the owner is responsible. While the chat- 
 tel remains in the taker's hands, he is under a duty to give it up on 
 demand. His detention of the chattel till discovery is lawful ; but 
 it is not necessary for his protection that such physical detention
 
 458 LARCENY. (Ch. 13 
 
 should be enlarged into possession, though, if he had parted with 
 the chattel in ignorance, he would be protected even as to the prop- 
 erty, notwithstanding that, by reason of the nonexistence of contract, 
 the property had not passed to him. It appears to me that the law- 
 fulness of the detention while the mistake as to identity continues 
 does not draw with it as a consequence that upon discovery the 
 taker can lawfully turn detention into possession and appropriate 
 the chattel. The protection given to mistake does not extend to 
 fraud. There are many cases in which a taker would be under no 
 responsibility or duty to the owner where willful misappropriation 
 on discovery would seem to be theft. 
 
 A word as to the authorities. Of the seven principal cases re- 
 lating to the question of mistake and possession — that is to say, 
 the two bureau cases, the two post office cases, Vincent's Case, 2 
 Den. C. C. 464, Middleton's Case, L. R. 2 C. C. 38, and Ashwell's 
 Case, 16 Q. B. D. 190 — only two decisions (that is, the post office 
 cases) tell against the view here taken. The second of those cases 
 merely followed the first. They were both decided without argu- 
 ment, and the reasons for the judgment can only be inferred. Mr. 
 Justice Stephen in his Digest, art. 299, and Mr. Justice Cave and 
 other judges in Ashwell's Case, 16 Q. B. D. 190, are of opinion 
 that the bureau cases are in direct conflict with the post office cases. 
 Whether this is so or not, I prefer the reasoning of Lord Eldon 
 and Baron Parke to the unargued conclusions in the latter cases, 
 and in my view that reasoning clearly touches the facts before us. 
 In addition to these two decisions, Mr. Fitz Gibbon also relied 
 strongly on the well-known illustration in Middleton's Case, L. R. 
 2 C. C. 45. An explanation of the passage is attempted by Mr. 
 Justice Wright (Possession, p. 207), and before us Mr. Bourke 
 suggested that there was an ambiguity as to what the taking by the 
 cabman contemplated in the illustration meant. In any view, how- 
 ever, the dictum cannot bind this court. It was not necessary to the 
 decision, the case was not argued apparently with reference to such 
 authorities as the bureau cases or Riley's Case, Dears. C. C. 119, 
 and the misconception of the nature of consent which prevailed 
 before Reg. v. Dee, 14 L. R. Ir. 468, will be seen to affect many of 
 the judgments. Counsel for the crown, in support of the conviction, 
 1 on the judgments and reasoning in the bureau cases, some 
 of the reasoning in Middleton's Case, L. R. 2 C. C. 45, and in Ash- 
 well's Case, 16 Q. B. D. 190, the conviction in which is supported 
 by tire opinions of Sir F. Pollock and Sir R. S. Wright in their 
 very learned and acute treatise on Possession, from which I have 
 derived much a i lance. The same conclusion is also reached in 
 an American case, Slate v. Duckcr, 8 Or. 394, 34 Am. Rep. 590, 
 decided unfortunately only by a single judge. As to the cases upon 
 the finding of lost property, I do nol think that they are directly in 
 point, as the chattel here was not lost. I have some difficulty in
 
 Sec. 4) THE TRESPASS. 450 
 
 reconciling their doctrine, as to the necessity of animus furandi being 
 simultaneous with the taking, with Riley's Case, Dears. C. C. 149, 
 that trespass followed by subsequent felonious misappropriation is 
 theft, unless the explanation be that animus furandi in the former 
 cases is essential to trespass. Nor do I quite see how the reasonable 
 belief of the finder as to the owner being found is a necessary in- 
 gredient in trespass at common law, where the finder takes with 
 the intent of converting to his own use whether the owner is found 
 or not, animo furandi, and not for the purpose of safe custody. 
 
 Legal principle and weight of authority, I think, and common 
 sense and reason, I believe — if I may be excused for introducing 
 such matters into the discussion of a common-law offense — point 
 in favor of conviction. Following their guidance, I must decide 
 that Hehir, who is morally a rogue, is legally a felon according to 
 the law of this kingdom.* 
 
 Johnson, J. 5 In the present case I fail to find in the initiatory 
 stage "trespass" or anything which the well-defined law considers 
 equivalent to trespass. Leech was Hehir's pecuniary debtor. He 
 intended to pay his debt with nine shillings in specie and two bank 
 notes. With that intention, or, in the words of the case, reserved 
 "for the purpose of paying this sum," without application by, or 
 act or word of, Hehir, Leech of his own motion voluntarily handed 
 to Hehir the nine shillings and the two bank notes to pay his debt. 
 Leech's intention in this act is not capable of positive or mathe- 
 matical proof; but it is to be implied from his acts, and I have 
 always understood the law to be that a man is taken to intend the 
 necessary and reasonable consequences of his own acts. If Leech 
 did not intend to give Hehir possession of the two particular bank 
 notes which he placed in his hand, what did he intend to give him? 
 Admittedly, and by an "intelligent" act of his own mind, he in- 
 tended to give Hehir the possession of, and also the property in, 
 one of the two particular notes. What different intention (does it 
 in any way appear) had he then and there as to the other of these 
 two particular notes, both of which, by the same act, at the same 
 instant of time, he gave and intended to give into Hehir's hand? 
 In The Queen v. Prince, L. R. 1 C. C. 150 (one of the strongest 
 cases in the books), Blackburn, J., at page 155, says: "As the law 
 now stands, if the owner intended the property to pass, though he 
 would not so have intended, had he known the real facts, that is 
 sufficient to prevent the offense of obtaining another's property from 
 amounting to larceny." That appears to me to be sound law. In 
 the present case the property in the £10 note did not. in my opinion, 
 pass to Hehir; but that is not the question now. If Leech had known 
 
 * Madden, Holmes, and Murphy, J J., delivered concurring opinions. 
 Accord: Wolfstein v. People, 6 Hun (N. Y.) 121 (lSlo) ; State v. Ducker, 
 8 Or. 394, 34 Am. Rep. 590 (1880). 
 6 Part of the opinion is omitted.
 
 4G0 LARCENY. (CIl. 13 
 
 that the note in question was a £10 note, and not a £1 note, prob- 
 ably he might not in that hypothetical case have handed it to Hehir; 
 but the real question is what, under the then existing conditions, was 
 Leech's intention — not what, under some other imaginary or con- 
 jectural circumstances or conditions, might or would have been his 
 intention. I am therefore of opinion, on the facts, that Leech in- 
 tended to deliver and did deliver possession of the £10 note as well 
 as of the £1 note to Hehir, and, further, that in the then condition 
 of his mind and knowledge he intended to pass the property in each 
 of the two notes to Hehir, and did not intend to make any difference 
 either as to possession or property between them, even though the 
 property in the £10 note did not, owing to the mistake, vest in He- 
 hir, and that, on the old and settled principles of the law, Hehir 
 committed no trespass, nor did any act which the law deems equiva- 
 lent to trespass, when he accepted and received from Leech the 
 note in question ; and that, as the case finds that when the note "came 
 to his hands" (3 Inst. 107) "when he first got possession of it distinct 
 from Leech" (2 East, P. C. 655), he had no animus furandi, con- 
 sequently there was no larceny, although subsequently Hehir found 
 out that the note was good, not only for £1, but for £10, and then, 
 retaining the £1 which was due to himself, dishonestly misappropri- 
 ated the £9 residue of the proceeds of the note, which in law he had 
 received to the use of Leech. This conclusion is supported by the 
 cases cited in argument. In Reg. v. Mucklow, Moo. C. C. 1G0, 
 1827, a postman called at the house (where the prisoner, James 
 Mucklow, lived with his father, about a dozen yards from St. Mar- 
 tin's Lane) with a letter addressed to "James Mucklow, St. Martin's 
 Lane," where no person of that name was known. The prisoner 
 and his father were out, and the postman left a message that there 
 was a letter for them which they were to send for. In consequence 
 of that message the letter was on the same day delivered to them, 
 and the prisoner found in it a draft which he misappropriated. James 
 Mucklow was convicted of larceny of the draft, and the conviction 
 was held wrong on the ground that it did not appear that the prisoner 
 had any animus furandi when he first received the letter. The draft 
 was not only part of the letter, but was the important chattel, which 
 the letter only covered and conveyed. That case was followed in 
 Keg. v. Davies, Dears. C. C. 6-10 (1856), and with these decisions 
 agree the illustration of a person handing to a cabman a sovereign 
 by mistake for a shilling, given in the judgment in The Queen v. 
 Middleton, L. K. 2 C. C. 38, in which, in the judgment of seven of 
 the judges, it is said (page i">) : "We are decidedly of opinion that 
 the property in the sovereign would not vest in the cabman, and that 
 the question whether the cabman was guilty of larceny or not 
 would depend upon this: Whether he, at the time he took the sov- 
 ereign, was aware of the mistake, and had then the guilt) intent,
 
 Sec. 4) THE TRE8PA8S. 16] 
 
 the animus furandi." In the present case the property in the £10 
 note did not, in my opinion, as I have stated, vest in Hehir ; but, 
 applying this test, the question is, was Hehir, when he took (received) 
 the £10 note, aware of the mistake, and had he then the guilty intent ? 
 On the facts of the present case that issue must be determined in 
 favor of the prisoner. It is erroneously stated in Stephen's Digest of 
 the Criminal Law (note, 3d Ed., p. 228; 5th Ed., p. 2G2) that the 
 arguments in The Queen v. Middleton, L. R. 2 C. C. 38, are not 
 reported. No counsel appeared for the prisoner, but the arguments 
 for the crown by Coleridge, A. G. (Metcalfe and Slade with him), 
 are reported in 12 Cox, C. C. 262, and several cases, including Merry 
 v. Green, 7 M. & W. 623, were referred to. This case of Merry 
 v. Green, 7 M. & W. 623, and also Cartwright v. Green, 8 Ves. 40."., 
 were much pressed by Mr. Bourke, for the crown, in his very clear 
 argument. In Cartwright v. Green, 8 Ves. 405, the owner of a 
 bureau concealed 900 guineas in specie in a secret drawer and died, 
 leaving it undiscovered. Her personal representative, knowing nothing 
 about the money lent the bureau to his brother, who took it to India 
 and brought it back. He knew nothing about the money. Then 
 the bureau was sold to Dick, no one all the time knowing anything 
 about the money. Dick lent the bureau to Green (one of the de- 
 fendants), a carpenter, for the sole purpose of repairing it. He 
 and his wife and another ransacked the bureau, found the money, 
 secreted it, and converted it to their own use, invito domino, with- 
 out the will of the owner. It was held this was a felony, and there- 
 fore a larceny, and rightly so. First, the 900 guineas were personal 
 chattels contained in, but independent of, the bureau, and forming 
 no part of it. Second, the bureau, and the bureau alone, was de- 
 livered by Dick, the owner, to Green, a carpenter, in the way of his 
 trade, for the limited purpose to repair it for Dick. The specie was 
 not delivered or intended to be delivered to Green for any purpose. 
 Third, when Green first discovered the money, he must then reason- 
 ably have believed, as well as known, that he could have found the 
 owner either in or through Dick, the owner of the bureau who em- 
 ployed him to repair it, and he from the first appropriated the money 
 to himself. The case was not unlike the old case of a carrier break- 
 ing bulk. In Merry v. Green, Parke, B., in delivering the judg- 
 ment of the court ordering a new trial, says: "It is said that the 
 offense cannot be larceny, unless the taking would be a trespass, and 
 that is true; but if the finder, from the circumstances, must have 
 known who was the owner, and, instead of keeping the chattel for 
 him, means from the first to appropriate it to his own use, he does 
 not acquire it by a rightful title, and the true owner might main- 
 tain trespass." The ground of the new trial was that the question 
 should be left to the jury whether the plaintiff had reason to be- 
 lieve he bought the contents of the bureau (if any), and consequent- 
 ly had a color of right to the property. Therefore neither of these
 
 462 LARCENY. (Ch. 13 
 
 cases, in my opinion, in the least governs the facts of the present 
 case or impeaches the decisions of Reg. v. Mucklow, 1 Moo. C. C. 
 160, or Reg. v. Davies, Dears. C. C. 610, or the illustration of the 
 cabman's case, or the old principle of the law. And it may be ob- 
 served that the Legislature, as mentioned in 2 Russ. (5th Ed.) 
 413, has by St. 1 Vict. c. 36, § 31, met (so far as the post office was 
 concerned) such cases as Mucklow's Case, 1 Moo. C. C. 160. For 
 other purposes the Legislature has left unaltered the old principle 
 of larceny at common law. 
 
 For these reasons I am of opinion that the question submitted 
 by the case should be answered in the negative, and the conviction 
 
 reversed. 
 
 O'Brien, J. 6 The nature of the criminal law is that it is con- 
 versant with acts. People are not punished for temptations. Whose 
 was the act in this case? There was no act but that of the owner; 
 for, according to the argument, the prisoner would have been guilty 
 of larceny if he had simply retained the £10 note after he knew 
 what it was. For the purpose of this view, the period of time during 
 which he was in possession of the note without knowing the amount 
 must be blotted out altogether — not in law merely, but even in physi- 
 cal existence. In fact, it must be considered the same as mere va- 
 cancy, and yet, by some curious legal fiction, the offense of the 
 accused is carried back over that vacancy to the time of the first 
 transaction, to satisfy the words of the indictment that he "feloni- 
 ously took," when it is certain he did not take. Thus a crime com- 
 mitted to-day is projected forward a month hence, or even it may 
 be a year, to the time when the person conceives the idea of appro- 
 priating the article. By the same kind of fiction, the trespass, which, 
 according to the authorities, must exist in the crime, is wholly got 
 rid of — not because the prisoner was innocently possessed until the 
 dishonest intention arose, but because there was no possession. And 
 thus a possession, which did not exist at all when he was innocent, 
 came into existence when he had a guilty mind, so as, without any 
 act but of the mind, to make out that he feloniously took. The 
 prisoner is not a person who obtains something wrongfully by latro- 
 cinium, by the direct and conscious invasion, open or secret, of anoth- 
 [ght. He is not a bailee. He is not a finder. We must invent 
 a pry. He is a finder out. In other words, he commits a 
 
 crime by the operation of the mind. But we have still further to 
 go in order to fulfill the definition of larceny. What becomes of the 
 asportavit— the other clement in the crime? When does the person 
 carry away? Are the taking and carrying away distinct things in 
 this "new theory of larceny? Or are they both comprised in what 
 may be a purely mental act — the appropriation? 1 fear it must be 
 
 o Pari of the opinion Is omitted.
 
 Sec. 4) 
 
 THE TRESPASS. 
 
 462 
 
 answered that the asportavit disappears altogether — that there is no 
 room for it and the cepit in the same thought and in the same instant. 
 It may be thought that these are almost ridiculous refinements, but 
 they become so by reason of the refinements they are intended to 
 meet ; for we are engaged in pursuing a phantom — an impalpable 
 subtlety that eludes comprehension, and makes thoughts and fictions 
 and relations the rule of conduct as to crime. The law, above all 
 the criminal law, that takes from a man the natural dominion over 
 himself, and delivers him over as a slave to another power for punish- 
 ment, was made to be understood, as well as to be obeyed. 
 In my opinion the conviction ought to be reversed. 7 
 
 (B) Distinction Between Possession and Custody. 
 
 Hussey put this question : If a shepherd steal the sheep that are 
 in his care; or a butler the pieces that are in his care; or other 
 servants things that are in their care, if this should be called felony. 
 And it seemed to him that it should, and he cited a case, which was, 
 that a butler had stolen certain stuff that was in his care, and was 
 hanged for it. Hough cited the case of Adam Goldsmith, of Lon- 
 don, who had stolen certain stuff that was in his care, and was 
 hanged for it. Brian : It cannot be felony, because he cannot take 
 them vi etarmis, since he had the care of them. And the justices 
 were of the same opinion, and hence, there was no discussion, etc. 
 
 Repokteb's Note 1487. (Y. B. 3 Hen. VII, 12, pi. 9). 
 
 •r» 
 
 V 
 
 H 
 
 tf 
 
 ANONYMOUS. 
 (Old Bailey, 16G4. Kelyng, 35.) 
 
 At the Sessions in the Old Bailey, holden there the 12 October, 
 1664. A silk throster had men come to work in his own house, and 
 delivered silk to one of them to work, and the workmen stole away 
 part of it. It was agreed by Hyde, Chief Justice, myself, and Brother 
 Wylde being there, that this was felony, notwithstanding the de- 
 livery of it to the party, for it was delivered to him only to work, 
 and so the entire property remained then only in the owner, like the 
 case of a butler, who hath plate delivered to him; or a shepherd, 
 
 i Sir O'Brien, L. C. J., Palles, C. B., and Andrews, J., delivered concur- 
 ring opinions. See Columbia Law Review, vol. 7, p. 395. 
 
 Accord: Bailey v. State, 58 Ala. 414 (1877); Jones v. State, 97 Ga. 430, 25 
 S. E. 319, 54 Am. St. Rep. 433 (1S95) ; Thompson v. State, 55 S. W. 330 
 (1900) ; Cooper v. Commonwealth, 60 S. W. 93S, 22 Ky. Law R. 1027, 52 L. 
 R. A. 136 (1901).
 
 4G4 LARCENY. (Cll. 13 
 
 who hath sheep delivered, and they steal any of them, that is felony 
 at the common law. Vide 13 Eliz. 4, 10 ; 3 Hen. VII, 12 ; 11 Hen. 
 VII, 14. Accord: Poulton de Pace, 126. 
 
 REX v. PARADICE. 
 (Court for Crown Cases Reserved, 1766. 2 East, P. C. 565.) 
 
 Francis Paradice was indicted for stealing a bill of exchange of 
 £100 value, the property of William Periam. The prosecutor to 
 whom the bill was indorsed was a draper at Devizes, and the prison- 
 er, who was his bookkeeper on a salary, kept his accounts, and re- 
 ceived and paid money for him, but did not live in his house, but came 
 every day there to transact his business. The prosecutor deliver- 
 ed the bill in question, with several others, to the prisoner, and 
 ordered him to send them by that day's post, as he had often done 
 before, from the Devizes to the prosecutor's banker in London, as 
 cash to be accounted for to the prosecutor. The prisoner next day 
 asked the prosecutor's leave to go to a town in the neighborhood, 
 which was consented to on condition that he returned the next day 
 by 12 o'clock. The prisoner went to Salisbury, got cash for the 
 bill, which was indorsed by the prosecutor, and next by the prisoner, 
 who was afterwards apprehended at Exeter with part of the bills and 
 the money. Gould, J., before whom he was tried and convicted, 
 respited judgment to take the opinion of the judges whether this 
 were a felony or a breach of trust. In Easter Term, 1766, all the 
 judges (except Lord Camden, who was absent) held it larceny, 
 upon the principle that the possession still continued in the master. 
 
 REGINA v. THOMAS. 
 
 (Worcester Assizes, 1841. 9 Car. & P. 741.) 
 
 Larceny. The prisoner was indicted for stealing a sovereign, the 
 property of Thomas Hins. 
 
 It appeared that the prosecutor and the prisoner, having entered a 
 beer shop, were drinking together, and that the prosecutor, who 
 had 1 to treat the prisoner, took a sovereign out of his pocket 
 
 for the purpo e of paying and offered it to the landlady to change, 
 and upon her declaring her inability to do so she placed it on the 
 table, and the- prisoner said, "I'll go and get change." The prose- 
 aid, "You won't come back with the change," to which the 
 ,ner replied, "Never fear," and, taking up the sovereign, left 
 the house and did nol again return. It appeared from the evidence 
 of the prosecutor that he was not aware of the last remark of the
 
 Sec. 4) THE TRESPASS. 465 
 
 prisoner, nor, at first, that he had gone out with the sovereign; 
 but he had not offered any opposition to the prisoner's taking it, hav- 
 ing left the sovereign on the table after his reply to the prisoner's 
 offer. 
 
 Streeten, for the prisoner, submitted that the intention of the 
 prisoner was clearly to be collected from the evidence, and that, as 
 it appeared that the taking was with intent to get change, any sub- 
 sequent felonious intent of converting it to his own use would not 
 constitute a trespass sufficient to tender it a felony, and that, the 
 prosecutor having parted with the legal possession of the sovereign, 
 the subsequent appropriation of the money by the prisoner did not 
 amount to larceny. 
 
 Huddleston, for the prosecution, submitted that it did not appear 
 by the evidence that the prosecutor had consented to the taking of 
 the sovereign. 
 
 Coleridge, J. I think that the passive conduct of the prosecutor 
 amounted to a sufficient sanction of the taking. 
 
 Huddleston. I submit that the prosecutor had not divested him- 
 self of the property in the sovereign by even giving it to the prisoner 
 for change, and that it remained his till it was actually changed. 
 
 Coleridge, J. (having conferred with Gurney, B.). It appears 
 quite clear that the prosecutor, having permitted the sovereign to 
 be taken away for change, could never have expected to receive back 
 again the specific coin, and he had therefore divested himself, at 
 the time of the taking, of the entire possession in the sovereign, and 
 consequently I think that there was not a sufficient trespass to con- 
 stitute a larceny. 
 
 Verdict — Not guilty. 1 
 
 REGINA v. JONES. 
 
 (Monmouth Assizes, 1842. 1 Car. & M. 611.) 
 
 Larceny. The prisoner was indicted for stealing a pig, the prop- 
 erty of Robert Baker. 
 
 It appeared that on Saturday, the 18th of December, 1811, the 
 prosecutor had employed the prisoner to drive six pigs from Car- 
 diff to Usk Fair, which was on the 20th of that month, for which 
 he paid the prisoner six shillings. The prisoner had never before 
 been in the employ of the prosecutor, and had no authority to sell 
 any of the pigs. It appeared that on Sunday, the 19th of Decern- 
 ber. the prisoner left one of the pigs at Mr. Matthews', of Coed- 
 kemew, to be left till the next night, saying that it was too tired 
 to walk. On Monday, the 20th, the prisoner told the prosecutor at 
 
 i Accord: Reg. t. Reynolds, 2 Cox, C. C. 170 (1847), disapproved in Jus- 
 tices v. People, 00 N. Y. 12, 43 Am. Rep. 135 (1SS2). Contra: Murphy v. 
 People, 104 111. 528 (1882). 
 Mik.Ck.L.— 30
 
 466 LARCENY. (Ch. 13 
 
 Usk that he had left the pig at Mr. Matthews' because it was tired ; 
 and the prosecutor then desired the prisoner to call at Mr. Mat- 
 thews' and ask him to keep the pig for him till the following Sat- 
 urday, and he would pay him for the keep. On Tuesday, the 21st, 
 the prisoner called at Mr. Matthews', and sold the pig to Mr. Mat- 
 thews for a guinea; and on Thursday, the 23d, he told the prose- 
 cutor that he had seen the pig at Mr. Matthews', and that Mr. Mat- 
 thews would keep it till the following Saturday. 
 
 Cress well, J. Is this a larceny? 
 
 Greaves, for the prosecution. The difficulty is that the prisoner 
 did not sell the pig at the time he left it, but left it because it was 
 tired, and sold it when it was no longer in his possession. 
 
 Crksswell, J. There is no evidence that the prisoner had any 
 intention to steal the pig when he received the six pigs to dnve. 
 
 Greaves. I submit that this is not necessary, as the prisoner had 
 merely the custody of the pigs, and that if he had sold one of the 
 pigs on the road it would have been larceny. In the case of Rex 
 v. McNamee, M. C. C. 3C8, Brit. C. C. vol. 2, it was held that if a 
 man who is hired to drive cattle sell them it is a larceny, although 
 it be found by the jury that he did not intend to steal the cattle at 
 the time he took them into his charge, because he has only the cus- 
 tody of the cattle, and not the right of possession. So in the case 
 of Regina v. Harvey, 9 C. & P. 353, 38 E. C. L. R. 150, where the 
 owner of goods employed a person not in his service to take them 
 to a particular place, show them to a customer, and bring them 
 back, but did not authorize him to sell them or leave them with the 
 customer, and he, instead of taking the goods to the place speci- 
 fied, sold them for his own advantage, it was held that this was a 
 larceny, as he had the custody, and not the possession, of the goods. 
 
 Cresswell, J. The judges appear to have acted lately on a very 
 nice distinction. If a man is allowed to have the possession of a 
 chattel, and he converts it to his own use, it is not larceny, unless he 
 had an intention of stealing it when he obtained the possession of 
 it; but, if he has merely the custody of a chattel, he is guilty of a 
 larceny if he disposes of it, although he did not intend to do so at 
 the time when he received it into his custody. 1 Here it appears 
 that the prisoner left the pig on Sunday, the 19th, and if nothing 
 more had appeared I should have held that Matthews kept it mere- 
 ly for the prisoner; but on Monday, the 20th, he told the prose- 
 
 i "Various opinions formerly prevailed whether servants, having the cus- 
 tody <.f their master's g is, were guilty of felony by fraudulently em- 
 bezzling them, and converting them to their own use; bu1 st. lit Hen. VIII, 
 ,. 7, W hlcb make this offense felony, does nol say thai it was nol felon; 
 
 before by the common law, bul only recites thai the matter had I n doubted, 
 
 ;iII ,i this ad of Parllamenl did not, In my Judgment, mean to weaken, bul to 
 
 the coi on law. Ever Blnce nils ad. therefore, the opinion of those 
 
 who before the ad held that servants embezzling their master's property 
 was felony has been confirmed." Gould, J., in Etea v. Wilklns, l Leach (4th 
 i d i 523 (1788
 
 Sec. 4) THE TRESPASS. 407 
 
 cutor that he had left it there, and the prosecutor told him to ask 
 Matthews to allow the pig to remain there till the Saturday. The 
 prosecutor thus consented to Matthews being the keeper of the pig 
 for him, and therefore his custody became the custody of the pros- 
 ecutor, and then the prisoner goes and sells the pig to Matthews 
 I think that the prisoner must be acquitted. 
 Verdict — Not guilty. 
 
 PEOPLE v. CALL. 
 (Supreme Court of New York, 1845. 1 Denio, 120.) 
 
 Beardsley, J. 1 According to the evidence, as stated in the bill 
 of exceptions, the note was handed to the prisoner for a special 
 purpose; that is, to indorse upon it a payment which had then been 
 made. He appeared to be making the indorsement, but then folded 
 up the note and with it left the house. 
 
 As every larceny includes a trespass, the taking must be from the 
 possession of another person. But here it is necessary carefully to 
 discriminate between what constitutes, in law, a possession of prop- 
 erty, and that which amounts only to its care and charge. 
 
 A servant has the charge, but not the possession, of his mas- 
 ter's goods. The possession is in the master, and the servant may 
 commit larceny by • converting the property, with which he is thus 
 intrusted, to his own use. This principle applies to servants, strictly 
 so called, as it also does to apprentices, clerks, and workmen of ev- 
 ery description, who are employed in the care and management oi 
 the owner's property, under his immediate supervision and control. 
 
 Where possession of the property is obtained by one as a bailee 
 or purchaser, although by trick and fraud, the case stands on other 
 grounds, but which need not now be stated. The note was not re- 
 ceived by the prisoner as a bailee, or a purchaser, but for the mere 
 purpose of doing for the holder what he was about to do for him- 
 self. The indorsement would be the act of the holder, although 
 made by the hand of the prisoner. It was to be done under the 
 immediate direction and control of the owner, and could onlv be 
 made by the prisoner as servant or agent of the person for whom 
 he was acting. As the note was thus received by the prisoner as a 
 servant of the holder, the legal possession was not changed. The 
 prisoner was in charge of the note while making the indorsement, 
 but the owner still had possession. 
 
 It was unnecessary, therefore, that the jury should have found 
 the existence of a felonious intent, when the prisoner received the 
 note. If it came upon him after the note had been received, and 
 while he was engaged in making the indorsement, or subsequently, 
 
 i Part of this case is omitted.
 
 468 LARCENY. (Ch. 13 
 
 and was carried into effect by converting the property to his own 
 use, it was larceny. The charge, therefore, was not strictly cor- 
 rect, in requiring the jury to find the anirms furandi at the time 
 when the note passed into the prisoner's hands. It was enough 
 that it existed while he held it as servant to the owner. A felonious 
 conversion under such circumstances was, in law, a felonious taking 
 from the owner. 
 
 The charge of the court virtually required the jury to find a 
 felonious intent at the time of conversion, as it did expressly at the 
 time the prisoner received the note. The last requisite of the charge 
 was erroneous; but it was an error which could not prejudice the 
 prisoner. It required the jury to find more than the law made 
 necessary to warrant his conviction of the offense; but of that he 
 jannot complain, and a new trial should be denied. 
 
 New trial denied. 
 
 REGINA v. SAWARD. 
 (Central Criminal Court, 1S51. 5 Cox, C. 0. 295.) 
 
 The prisoner was indicted for larceny. 
 
 It appeared that he was employed by the prosecutor, who was 
 a tarpaulin manufacturer, to make up for him canvas bags. The 
 canvas was cut out by the prisoner, at the prosecutor's shop, and 
 taken away by him, and it was his duty to make it up at his own 
 house and bring back the bags complete. A portion of a large 
 quantity of material received by him was worked up and brought 
 hack to the prosecutor. The remainder he pawned, and appropri- 
 ated the money to his use. 
 
 The Recorder (after consulting Mr. Justice Cress well). An ex- 
 tremely nice point of law arises in this case. If, under ordinary 
 circumstances, a servant has possession of his master's goods, the 
 possession of the servant is the possession of the master, and if he 
 makes away with the property he is guilty of larceny. But a very 
 refined distinction has been taken between the case of a servant 
 having goods of his master's upon his master's premises and having 
 them to work up upon his own. He is, in the latter case, consid- 
 ered, not in the light of a servant, but in that of a bailee. If he then 
 makes away with the property, he is guilty of a fraud, but not of a 
 larceny. If, on the other hand, a servant so intrusted were to sep- 
 arate a portion of the goods, and dispose of them to his own use, 
 then the very act of separating them would determine the bailment, 
 lie would no longer be in lawful possession of those he had so 
 eparated with a fraudulent intent, and would therefore be guilty 
 of larceny in converting them. Here it appears the prisoner had 
 eparated and made up a portion of the materials, which would he 
 a lawful act. His pawning the rest, therefore, would not render
 
 Sec. 4) THE TRESPASS. 469 
 
 him guilty of larceny. I have consulted Mr. Justice Cresswell on 
 the subject, who, after some hesitation, thinks that the jury should 
 be directed to acquit the prisoner. 
 Verdict — Not guilty. 
 
 PEOPLE v. MONTARIAL. 
 
 (Supreme Court of California, 1898. 120 Cal. 691, 53 Pac. 355.) 
 
 Louis Montarial was convicted of grand larceny in stealing certain 
 moneys from one Paillac, and appeals. The evidence showed that 
 Montarial and Paillac were roommates, and that the latter gave 
 the defendant the money in question, done up in a package, to be 
 placed for safe-keeping in defendant's trunk. Defendant placed 
 the money in the trunk, where it remained for over two years. De- 
 fendant carried the key, but always unlocked the trunk at the re- 
 quest of Paillac. Defendant had no authority to handle the pack- 
 age except in the presence of Paillac, and then only for the pur- 
 pose of handing it to Paillac or replacing it at his direction. 1 
 
 Van Fleet, J. Taking the whole evidence together, with all it 
 tends to show, and we are satisfied that it does not establish a bail- 
 ment or intrusting of the money to defendant. As we regard it, the 
 evidence does not show that Paillac ever in fact really parted with 
 the possession of his money. While it was locked in the trunks of 
 defendant, to which the latter retained the keys, the trunks were 
 at all times as much in the possession of Paillac, and with practi- 
 cally the same freedom of access to the latter, as in that of the de- 
 fendant. In legal contemplation the use of the trunks was loaned 
 or given to Paillac as a place for keeping his money. The mere 
 fact that defendant carried the keys is not a material consideration. 
 As we have seen, the keys were always forthcoming when demand- 
 ed by Paillac for access to his money ; and the money was, there- 
 fore, to all practical intents and purposes, as much under his per- 
 sonal supervision and protection as of defendant. Indeed, more so, 
 since the latter had no right or authority to tamper with it in any 
 way, except as directed by its owner. 
 
 Much is made by defendant of the fact that Paillac testified that 
 he "intrusted" the money to defendant; and it is urged that this 
 constitutes embezzlement, because that offense consists of "the fraud- 
 ulent appropriation of property by a person to whom it has been 
 intrusted." Pen. Code, § 503. But, to reach the meaning of the 
 witness, his expressions must be read in the light of his whole tes- 
 timony and all the circumstances; and when so read it is clear that 
 bis money was not intrusted to the keeping of the defendant in a 
 
 'Yue statement of *aots Is abridged from the opinion of the court, and 
 part of the opinion is omitted.
 
 470 LARCENY. (Ch. 13 
 
 manner to bring it within the definition of embezzlement. Defend- 
 ant let Paillac have the use of his trunks as a place of safety for 
 his property, and the only dominion defendant rightfully exercised 
 over it was a perfunctory handling of it in the presence of the 
 owner. The case, although differing in its circumstances, is not 
 to be distinguished in principle from that of People v. Johnson, 91 
 Cal. 265, 27 Pac. 663, where it is held that, where the owner puts 
 his property into the hands of another to do some act in relation to 
 it in his presence, he does not part with the possession of it, and 
 the conversion of it animo furandi is larceny, and not embezzlement. 
 See, also, 2 Russell on Crimes (8th Am. Ed.) 21. 
 We are satisfied that the judgment should be affirmed. 
 
 (C) When Delivery Vests Property. 
 REGINA v. STEWART. 
 
 (Kent Assizes, 1S45. 1 Cox, C. C. 174.) 
 
 The prisoners were indicted for larceny, under the following 
 circumstances: They passed for husband and wife, and, having 
 taken a house at Tunbridge Wells, Mrs. Stewart went to the shop 
 of the prosecutor, selected the goods in question to the amount of 
 £10, and ordered them to be sent to her home. The prosecutor ac- 
 cordingly dispatched the goods by one Davies, and gave him strict 
 injunction not to leave them without receiving the price. Davies, 
 on arriving at the house, told the two prisoners he was instructed 
 not to leave the goods without the money, or an equivalent. After 
 a vain attempt on the part of K. Stewart to induce Davies to let 
 him have the property on the promise of payment on the morrow, 
 he (Stewart) wrote out a check for the amount of the bill and gave 
 it to Davies, requesting him not to present it till the next day. It 
 was drawn on the London Joint Stock Bank, Prince's Street, Lon- 
 don, rind Davies, having left the goods, returned with the chock 
 to his employers. It was presented at the Bank, in London, the 
 next morning, when it was dishonored for want of effects. It was 
 also proved that, although the prisoner had opened an account at 
 the said hank, it had been some time before overdrawn, and several 
 of his checks had been subsequently dishonored. 1 
 
 Jones, Serjt., then submitted that the charge of larceny against 
 Kidman Stewarl could not be sustained. The shopman parted, 
 
 nol only with the posse 3KM1 of the goods, hut also with the prop 
 
 erty in them. Nor was any false representation made to him to in- 
 duce him so to do. The prisoner requested that the check might 
 
 not he presented until tin- next day; hut it was presented on the 
 
 i Part ni tins case is omitted.
 
 Sec. 4) THE TRESPASS. 471 
 
 next morning-, and had never been taken to the banking house since. 
 Although there were no funds there in the morning, it did not fol- 
 low that provision might not have been made for the check in the 
 course of the day. This is like the case of R. v. Parker, 7 C. 
 & P. 825, where the prisoner was charged with falsely pretending 
 that a postdated check, drawn by himself, was a good and genuine 
 order for £25, whereby he obtained a watch and chain. There the 
 prisoner represented, as here, that he had an account with the bank, 
 and had authority to draw the check, both which were proved to be 
 false, and the court held the case one of false pretenses. 
 
 Alderson, B. It is for you to show that the prisoner had rea- 
 sonable ground for believing that the check would be paid. The 
 case seems to me to approach more nearly to R. v. Small, 8 C. & 
 P. 46, than to R. v. Parker. In the former, a tradesman was induc- 
 ed to send his goods by a servant to a place where he was met 
 by the prisoner, who induced the servant to give him the goods in 
 exchange for a counterfeit crown piece, and it was held to be lar- 
 ceny. If the owner of goods parts with the possession, he mean- 
 ing to part also with the property, in consequence of a fraudulent 
 representation of the party obtaining them, it is not larceny, but 
 
 a mere cheat. But if the owner does not mean to part even with 
 the possession, except in a certain event, which does not happen, 
 and the prisoner causes him to part with them by means of fraud, 
 he (the owner) still not meaning to part with the property, then 
 the case is one of larceny. Here, if the owner had himself car- 
 ried the goods and parted with them, as the servant did, no doubt 
 it would have been a case of false pretenses; or, if the servant had 
 had a general authority to act, it would have been the same as 
 though the master acted. But in this instance he had but a limited 
 authority, which he chose to exceed. I am of opinion, as at pres- 
 ent advised, that if the prisoner intended to get possession of these 
 goods by giving a piece of paper, which he had no reasonable 
 ground to believe would be of use to anybody, and that the servant 
 had received positive instructions not to leave the articles without 
 cash payment, the charge of larceny is made out. 2 
 
 2 Accord: Rex v. Longstreeth, Moody, 137 (1826); Rex v. Small. 8 Car. & 
 P 46 (1837); Reg. v. Sheppard, 9 Car. & P. 121 (1839). See, also, Reg. v. 
 Simpson, 2 Cox, C. C. 235 (1847); Shipply v. People. S6 N. T. 375, 40 Am. 
 Rep. 551 (1881) ; State v. Hall, 76 Iowa, 85, 40 N. W. 107, 14 Am. St. Rep. 
 204 (1888) : Commonwealth v. Eichelberger, 119 Pa. 254, 13 Atl. 422, 4 Am. 
 St. Rep. 642 (1888).
 
 472 LARCENY. (Ch. 13 
 
 REGINA v. WILSON. 
 
 (Stafford Assizes, 1837. 8 Car. & P. 111.) 
 
 Larceny. The prisoners were indicted for stealing a £5 note and 
 two sovereigns, the property of Robert Parker. 
 
 Mr. Robert Parker said: "I am a farmer. I was, on the 20th 
 of June, walking towards Walsall, when I saw the prisoner Peter 
 Wilson. He pointed to the ground and said : 'There is a purse.' 
 He picked it up. I said: 'We had better have it cried, as some 
 one may own it.' He replied: 'Some one to whom it does not be- 
 long may say it is his, and get it from us.' We walked on, and I 
 said: 'We had better see what the purse contains.' He replied: 
 'Not here, as there are men at work who will see us.' We went 
 about 20 yards further, and the prisoner Wilson opened the purse 
 and took out what appeared to me to be a gold watch chain and 
 two seals. He said he did not know the value of them, but there 
 was a gentleman on the other side of the road who could probably 
 tell us. This was the prisoner Ambrose Martin. The things were 
 shown to him, and he said he was in the trade, and asked how we 
 came by the articles. I said we had found them. The prisoner 
 Martin then said it was a very prime article, and worth £14, and 
 that we should divide it between us, and he added that, as we found 
 it on the road, it belonged to us, and no one else. The prisoner 
 Wilson said he would take the things to his master; but the other 
 prisoner said he had no right to do so, and he also said that if 1 
 would buy the other man's share he would give me £18 for the 
 articles, and get a good profit for himself besides. He added that 
 he was the brother of Mr. Dutton, the watchmaker, whom I knew. 
 The prisoner Wilson had gone on a little way, when he was called 
 back by the other prisoner, who asked him if he would take £7 
 for his share. This he agreed to do. I gave him a £5 note and two 
 sovereigns, and took the chain and seals." 
 
 Evidence was given to show that the prisoners were connected 
 together, and that the supposed valuable articles were worth only 
 a few shillings. 
 
 COLERIDGE, J. Is this a larceny? 
 
 Beadon, for the prosecution, cited the case of Rex v. Moore, 2 
 East, P. C. 670. 
 
 Coleridge, J. In that case nine of the judges thought that 
 the money charged to have been stolen was given as a pledge, so 
 that the possession of it only was parted With by the prosecutor, 
 and the property not. In this case the prosecutor intended to pari 
 with the money for good and all, and to have the articles. If the 
 party mean! to part with the property in the money, as well as the 
 possession of it, I am of opinion that it is no larceny. Here the 
 ecutor meant to part with his money for ever.
 
 Sec. 4) THE TRESPASS. 473 
 
 Beadon cited the case of Rex v. Robson, R. & R. 413. 
 
 Coleridge, J. The party there had only the possession of the 
 money given to him as a stakeholder. When this prosecutor parted 
 with his £7, he never intended to have it back again, but meant 
 to sell the chain and seals for himself. The prisoners must be 
 acquitted. 
 
 Verdict — Not guilty. 
 
 REX v. NICHOLSON. 
 
 (Court for Crown Cases Reserved, 1794. 2 Leach, C. C. [4th Ed.] 610.) 
 
 Nicholson and others were indicted for stealing two bank post 
 bills, the one of £20 the other of £15, and seven guineas, the prop- 
 erty of William Cartwright. It appeared that the prisoner Nichol- 
 son introduced himself to the prosecutor without any previous ac- 
 quaintance, at his apartments in the Charter House, under pretense 
 of inquiring what the rules of the charity were. He discovered that 
 the prosecutor had some money, by his desk having been opened 
 during the conversation. Nicholson desired him to walk with him, 
 and they went to a public house, having been joined by the prisoner 
 Chappel. Some liquor was called for, when the other prisoner, Jones, 
 came into the room, and said he had come from Coventry to receive 
 £1,400, and produced a quantity of notes. Chappel said to him : 
 "I suppose that you think that no one has any money but you." 
 Jones answered: "I'll lay £10 that neither of you can show £40 in 
 three hours." They all went out, Nicholson and Chappel saying they 
 should' go to the Spotted Horse, and both asked the prosecutor if 
 he could show £40. He answered he believed he could. Nicholson 
 accompanied the prosecutor to his room at the Charter House, where 
 the prosecutor took out of his desk the two post bills in question and 
 five guineas. Nicholson then advised him to take a guinea or two 
 more, and he accordingly took two more. They then went to the 
 Spotted Horse, where Jones and Chappel were in a back room. Jones 
 put down a £10 note for each who could show £40. The prosecutor 
 showed his £40 by laying down the notes and guineas, but did not 
 recollect whether he took up the £10 given to him. Jones then wrote 
 four letters with chalk on the table, and going to the end of the 
 room turned his back, and said that he would bet them a guinea 
 apiece that he would name another letter which should be made and 
 a bason put over it. Another letter was made and covered with a 
 bason. Jones guessed wrong, and the others won a guinea each. 
 Chappel and Nicholson then said: "We may as well have some of 
 Jones' money, for he is sure to lose; and we may as well make it 
 more, for we are sure to win. The prosecutor staked his two notes 
 and the seven guineas. Jones then guessed right; and, the notes
 
 474 LARCENY. (Ch. 13 
 
 lying on the table, Jones swept them all off, and went to the door 
 of the room, the other prisoners sitting still. A constable immediately 
 came in and apprehended the prisoners. The prosecutor said on cross- 
 examination, that he did not know whether the £10 note given to 
 him by Jones on showing £40 were a real one or not; that having 
 won the first wager by guessing the letter, if the matter had ended 
 then, he should have kept the guinea; that he did not object to 
 Jones taking his £40 when he lost, and would have taken the £40 
 if he had won. The officers who had taken the prisoners, having 
 searched them, found a great many pieces of thin paper upon them, 
 having numbers, such as 100, 50, etc., something in the manner of 
 bank notes, the bodies of the notes being advertisements of different 
 kinds. No good notes were found upon them, but about eight guin- 
 eas in cash, a sum sufficient to have paid £40 if Jones had lost the 
 wager. A lump of paper was put into the prosecutor's hands by 
 Jones when the officers came in, which was afterward found to con- 
 tain the two genuine post bills mentioned in the indictment. 1 
 
 Knowlys, for the prisoner, submitted to the court that there was 
 a material distinction between this case and the common cases where 
 money is obtained by means of ring dropping; that in ring dropping 
 cases the property obtained, though voluntarily on the part of the 
 prosecutor, was not by an absolute, but conditional, delivery, so 
 that, until something else took place, the property was not intended 
 to be parted with, and therefore a constructive possession still re- 
 mained in the prosecutor. But in this case the money was lost, and 
 the prosecutor really supposed it to be so, and parted with it abso- 
 lutely, without anything being to be afterwards done by the party, 
 or without any expectation of its being to be returned to him again 
 in any event whatever. 
 
 The Court was of opinion that it was for the jury to judge, from 
 all the circumstances of the case, whether the prisoners had not a 
 dominion over the property of Cartwright from the very beginning 
 of the transaction, and whether all that followed were not merely 
 means made use of to get his money into their possession. 
 
 The jury found the prisoners guilty, and that it was not a gaming 
 transaction, but a preconcerted scheme in all the prisoners to get from 
 the prosecutor the notes and money; but the judgment was respited, 
 and the case submitted to the consideration of the twelve judges. 
 
 In Hilary Term, 1794, all the judges held the conviction wrong. 
 for that in this case the possession itself, as well as the properly. 
 had been parted with 6y the prosecutor, under an idea that it had been 
 fairly won; and the prisoners received a free pardon, and were dis- 
 charged previous to the April Session, 170 I. 2 
 
 i The facts are printed from '-' East, P. C. 669. 
 ■ ompare Reg. \ Riley, l Oox, O. O. 98 (1844).
 
 Sec. 4) THE TRESPASS. 475 
 
 REX v. ROBSON. 
 (Court for Crown Cases Reserved, 1820. Russ. & R. 413.) 
 
 The prisoners were tried and convicted before Mr. Justice Bayley, 
 at the Lent Assizes for the town and county of Newcastle-upon- 
 Tyne, in the year 1820, of stealing from the person of John Young- 
 er 20 notes for one guinea each. 
 
 The facts were as follows: Robson, by pretending to find a six- 
 pence in a fair, decoyed Younger to a public house. They were 
 then joined by the three other prisoners, and after a little time Gill, 
 pretending to be flush of money, began to play with Fewster, at 
 guessing at a halfpenny Fewster hid under a pewter pot. Gill was 
 to guess three times right out of four. After losing twice, Gill offered 
 a wager of a pound that none of them could produce £10. Fewster 
 took the bet, and advised Younger to do the same. Younger had 
 not money enough about him, but went and borrowed 20 guinea 
 notes of a friend, and then it was conceded he had won. Gill then 
 offered Fewster to bet him £100, or £50, or any other sum, that he 
 guessed the halfpenny right three times out of four, and Fewster 
 betted him £40. Gill guessed wrong once out of the four times, and 
 then went out. In his absence, Fewster advised Younger to go 
 halves in the bet, as he was sure to win, and after some persuasion 
 he consented; and on Gill's return Younger handed the 20 guinea 
 notes to Gill, who passed them on to Robson, who was to be stake- 
 holder. Gill then pretended to guess the remaining three times, 
 and, being right in each, Robson gave him the stakes and he went 
 away. 
 
 The learned judge told the jury that if they thought, when Gill 
 took the notes from Younger and passed them to Robson, there 
 was a plan and concert between the prisoners that Younger should 
 never have his notes back, but that they should keep them for them- 
 selves, under the false color and pretense that Gill won his bet, he 
 was of opinion that in point of law it was a felonious taking by all. 
 
 The jury were of that opinion; but, as this case came very near 
 to Rex v. Nicholson, 2 East, P. C. 669, the learned judge thought 
 proper to submit it to the consideration of the judges, although his 
 lordship was of opinion that it was distinguishable from that case. 
 
 The distinction the learned judge took between the cases was 
 this: That, at the time Gill and Robson took Younger's notes. 
 Younger parted with the possession only, not with the property, 
 and that the property was only to pass eventually if Gill really won 
 the wager. Younger expected to have been paid, had Gill guessed 
 wrong.
 
 
 476 . LARCENY. (Ch. 13 
 
 In Easter Term, 1820, ten of the judges met and considered this 
 case. They held the conviction right, because at the time of the 
 taking the prosecutor parted only with the possession of the money. 1 
 
 STATE v. SKILBRICK. 
 
 (Supreme Court of Washington, 1901. 25 Wash. 555, 66 Pac. 53, 87 Am. St. 
 
 Rep. 784.) 
 
 Sam Skilbrick was convicted of larceny, and he appeals. 
 
 Mount, J. 2 There can be no other conclusion from the evidence 
 in the case than that Hilger, Sampson, and the appellant, Skilbrick, 
 were confederates, that the game was a dishonest game, that Daley 
 had no chance of winning, that the confederates knew what Daley 
 had in his hand, and that there was no element of chance for them 
 in the game. Daley was entirely ignorant of the character of the 
 game. He testified that he believed it to be an honest game of poker. 
 When Daley placed his money on the hazard of the cards, he did 
 not intend to part with the title, unless it was fairly won by his oppo- 
 nents. When Sampson, Hilger, and Skilbrick knew before the cards 
 were dealt, or afterwards by discovery, that Daley was to lose his 
 money through their manipulations, and when they induced him into 
 the game, and one of them, by telling him he had the best hand, per- 
 suaded him to place his money on the table, for the purpose of ob- 
 taining his money, as they evidently did in this case, it was as much 
 larceny as though they had induced him to lay his money on the 
 table for them to examine, and then had taken it by some sleight 
 of hand performance, which Daley did not understand, or by force 
 under his protest. The object of the conspirators was to get the 
 money. That they got possession of it through a trick or through 
 fraud, by leading Daley to believe he would stand an equal chance 
 of winning, when he had none, or that they got it by taking it with- 
 out his consent, makes no difference. The crime would be larceny 
 in either event. Miller v. Commonwealth, 78 Ky. 15, 39 Am. Rep. 
 194; People v. Rae, 66 Cal. 423, 6 Pac. 1, 50 Am. Rep. 102; Loom- 
 is v. People, 67 N. Y. 322, 23 Am. Rep. 123; People v. Shaw, 57 
 .Mich. 403, 24 N. W. 121, 58 Am. Rep. 372. 
 
 The cause is therefore affirmed. 
 
 Ki.avis, C. J., and Fueeerton, Anders, Hadley, and White, ]]. 
 concur. 
 
 'Accord: Miller v. Commonwealth, 78 Ky. 15, no Am. Rep. 1!»I (1879); 
 Reg. v. Buckmaster, 16 Cox, 0. 0. '-'•'■'•'■> (1887). See, also, Cram v. State, 
 Ms ind. 401, IT \. i:. 833 (1897); Stlnaon v. People, 48 ill. 897 (1867); 
 I/*, mis v. People, 87 N. Y. 822, •_':: Am. Rep. 123 (1S7G); Julmsun v. State, 
 7:. .Mi; IL'7. 88 B. W. 905 (3906). 
 
 2 Only extract! From the opinion are printed.
 
 Sec 4) THE TRESPASS. 477 
 
 REGINA v. WILLIAMS. 
 
 1 Worcester Assizes, 1857. 7 Cox, C. C. 355.) 
 
 The prisoner was indicted for stealing one shilling, the property 
 of John Tippin, at Evesham. 
 
 Powell for the prosecution. 
 
 On the part of the prosecution a witness was called, who deposed 
 as follows: "I am shopman to the prosecutor. On Friday, the 
 10th of July, the prisoner came to the shop. He asked for half 
 an ounce of tobacco. I served him with it. He pitched down half a 
 crown upon the counter. I put two shillings down upon the counter, 
 and whilst I was counting the halfpence out of the drawer, which 
 was partly open, the prisoner picked up the two shillings off the 
 counter, and, as I thought, threw them into the till, and asked for 
 four sixpences instead of them. I gave him one shilling and two 
 sixpences. I also gave him fourpence halfpenny; the tobacco com- 
 ing to three halfpence. I suspected that something was wrong, but 
 did not like to open the drawer whilst the prisoner was there; but 
 immediately he had left the shop I counted the money in the drawer. 
 Before the prisoner came into the shop, I had fourteen shillings and 
 fourpence in silver in the drawer. I put the half crown which I 
 received from the prisoner in, which would make sixteen shillings 
 and tenpence, and, after taking out the two shillings for the prison- 
 er, I ought to have had fourteen shillings and tenpence, but on 
 counting my money I found that I had only thirteen shillings and ten- 
 pence. After he had thrown the two shillings into the drawer, as 
 I thought, and as he drew his hand away, I saw his thumb bent close 
 to the palm of his hand. I saw him put his hand into his pocket. 
 This made me suspect that something was wrong." 
 
 Powell. The charge is made out, for the possession of the money 
 was never parted with. It was only put down upon the counter, 
 for the purpose of being afterwards handed over to the prisoner, 
 and he had no right to take it up. But, even if that be not so, the 
 prisoner ought still to be convicted, for the case comes within a class 
 of offenses which have always been held to amount to larceny. The 
 prisoner has obtained the money by means of a trick. R. v. Oliver, 
 4 Taunt. 274, is in point. 1 
 
 Martin, B. No; the decision in the case you refer to was quite 
 right, but it does not apply. The case against the prisoner here is 
 that he pretended that he had returned the whole of the money, 
 when in reality he had only returned one shilling. He cannot, there- 
 fore, be convicted upon this indictment, though it might be other- 
 wise if he had been indicted for obtaining the shilling by false pre- 
 tenses. 
 
 Verdict—Not Guilty. 
 
 i Part of this case is omitted. 

 
 
 478 LARCENY. (Ch. 13 
 
 REGINA v. McGRATH. 
 
 (Court for Crown Cases Reserved, 1869. 11 Cox. C. C. 347.) 
 
 The witness, Jane Powell, said: "I had not bid for it [at auction], 
 nor made any sign. I told the prisoner I had not bid. He said I 
 did. I said I did not, and would not pay for it. I said this several 
 times. I went to go out. The prisoner said I had bid for it, and must 
 pay before I would be allowed to go out. I was then prevented go- 
 ing out by the man who had said I had bid for it. He stood between 
 me and the door, and said I must pay for it I wanted to go out, 
 and the man prevented me. I then paid 2Qs. to the prisoner. I 
 paid the money because I was afraid. The piece of cloth was then 
 given to me, and I took it away." x 
 
 Brett, J. I also have had doubts whether there, was sufficient evi- 
 dence to support a conviction in this case. If the case had rested 
 on the principle of the money having been obtained by a trick, I should 
 have thought that there was not. The case, if so put, would have fail- 
 ed in this: That if the woman by the trick was induced to part 
 with her money she did so willingly, and in this case with intent that 
 it should be taken away by the prisoner. But, upon consideration, 
 I think that this conviction may be supported on the ground that 
 the woman parted with her money against her will, by reason of un- 
 lawful violence used and threatened by the prisoner. I had doubts 
 whether the threat of imprisonment was sufficient; but upon con- 
 sideration I think that a threat of immediate personal restraint, made 
 by a person present and having power to carry such threat into ex- 
 ecution, may reasonably be said to cause a person to do what this 
 woman did against her will, and that is sufficient to make the giving 
 up of property such a taking of property by a prisoner as to consti- 
 tute the crime of larceny. 
 
 Conviction affirmed. 2 
 
 REGTNA v. MIDDLETON. 
 (Court for Crown Cases Reserved, 1873. L. R. 2 C. C. 38.) 
 
 Case stated by the Common Serjeant of London. 
 
 At the session of the Central Criminal Court hold on Monday, 
 the 23d of September, L872, George Middleton was tried for felo- 
 niously stealing certain money to the amount of £8. lGs. lOd. of the 
 moneys of the P< i Una ler ( '.<ner.il. 
 
 The ownership of the money was laid in other counts in the queen 
 mil in the mi tre s of the local post office. 
 
 i Only extracts from tins case are printed. 
 Accord: Reg. v. Bozell, n Con. < \ c. .v.»7 (1870); k«t. v. Lovell, 8 Q. B. 
 D. 185 (1881).
 
 /» 110- 
 fill' & 

 

 
 Sec. 4) THE TRESPASS. 479 
 
 It was proved by the evidence that the prisoner was a depositor 
 in a post office savings bank, in which a sum of lis. stood to his 
 credit. 
 
 In accordance with the practice of the bank, he duly gave no- 
 tice to withdraw 10s., stating in such notice the number of his 
 deposiforirbook, the name of the post office, and the amount to be 
 withdrawn. 
 
 A warrant for 10s. was duly issued to the prisoner, and a letter 
 of advice was duly sent to the post office at Notting Hill to pay the 
 prisoner 10s. He presented himself at that post office and handed 
 in his depositor's book and the warrant to the clerk, who, instead 
 of referring to the proper letter of advice for 10s., referred by mis- 
 take to another letter of advice for £8. 16s. 10d., and placed upon 
 the counter a £5 note, three sovereigns, a half sovereign, and silver 
 and copper, amounting altogether to £8. 16s. lOd. The clerk en- 
 tered the amount paid, viz., £8. 16s. lOd. in the prisoner's deposi- 
 tor's book and stamped it, and the prisoner took up the money and 
 went away. 
 
 The mistake was afterwards discovered, and the prisoner was 
 brought back, and, upon being asked for his depositor's book, said 
 he had burnt it. Other evidence of the prisoner having had the 
 money was given. 
 
 It was objected by counsel for the prisoner that there was no 
 larceny, because the clerk parted with the property and intended to 
 do so, and because the prisoner did not get possession by any fraud 
 or trick. 
 
 The jury found that the prisoner had the animus furandi at the 
 moment of taking the money from the counter, and that he knew 
 the money to be the money of the Postmaster General when he took 
 it up. 
 
 A verdict of guilty was recorded, and the learned Common Serjeant 
 reserved for the opinion of the Court for Crown Cases Reserved 
 the question whether under the circumstances above disclosed, the 
 prisoner was properly found guilty of larceny. 
 
 November 23, 1872. The court [Kelly, C. B., Martin, B., and 
 Brett, Grove, and Quain, JJ.] reserved the case for the opinion 
 of all the judges. 
 
 Bovill, C. J., read the judgment of Cockburn, C. J., and Black- 
 burn, Mellor, Lush, Grove, Denman, and Archibald, JJ., as fol- 
 lows :* 
 
 In the present case, the finding of the jury that the prisoner. 
 at the moment of taking the money, had the animus furandi and 
 was aware of the mistake, puts an end to all objection arising from 
 the fact that the clerk meant to part with the possession of the money. 
 
 i Part of the opinion is omitted.
 
 480 LARCENY. (Ch. 13 
 
 On the second question, namely, whether, assuming that the clerk- 
 was to be considered as having all the authority of the owner, the 
 intention of the clerk (such as it was) to part with the property 
 prevents this from being larceny, there is more difficulty, and there 
 is, in fact, a serious difference of opinion, though the . majority, 
 as already stated, think the conviction right. The reasons which 
 lead us to this conclusion are as follows : At common law the prop- 
 erty in personal goods passes by a bargain and sale for considera- 
 tion, or a gift of them accompanied by delivery; and it is clear, 
 from the very nature of the thing, that an intention to pass the 
 property is essential both to a sale and to a gift. But it is not at 
 all true that an intention to pass the property, even though accom- 
 panied by a delivery, is of itself equivalent to either a sale or a gift. 
 We will presently explain more fully what we mean, and how this 
 is material. Now, it is established that where a bargain between 
 the owner of the chattel has been made with another, by which the 
 property is transferred to the other, the property actually passes, 
 though the bargain has been induced by fraud. The law is thus 
 stated in the judgment of the Exchequer Chamber, in Clough v. 
 London & Northwestern Ry. Co., L. R. 7 Ex. 26, at pages 34, 35, 
 where it is said: "We agree completely with what is stated by all 
 the judges below that the property in the goods passed from the 
 London Pianoforte Company to Adams by the contract of sale. 
 The fact that the contract was induced by fraud did not render the 
 contract void, or prevent the property from passing, but merely 
 gave the party defrauded a right, on discovering the fraud, to elect 
 whether he would continue to treat the contract as binding, or 
 would disaffirm the contract and resume his property. * * * 
 We think that, so long as he has made no election, he retains the 
 right to determine it either way, subject to this: That if, in the 
 interval, whilst he is deliberating, an innocent third party has ac- 
 quired an interest in the property, or if, in consequence of his de- 
 lay, the position even of the wrongdoer is affected, it will preclude 
 him from exercising his right to rescind." 
 
 It follows obviously from this that no conversion or dealing with 
 the goods, before the election is determined, can amount to a steal- 
 ing of the vendor's goods; for they had become the goods of the 
 purchaser, and still remained so when the supposed act of theft 
 was committed. There are, accordingly, many cases, of which the 
 most recenl is Keg. v. Prince, L. R. 1 C. C. 150, which decide 
 that in such a ca e the guilty party must be indicted for obtaining 
 the goods by false pretenses, and cannot be convicted of larceny. 
 In that case, however, the money was paid to the holder of a forged 
 check payable to hearer, and therefore vested in the holder, subject 
 to the right of the bank to divest the property. 
 
 In the present case, the property still remains that of the Post-
 
 Sec. 4) THE TRESPASS. 481 
 
 master General, and never did vest in the prisoner at all. There was 
 no contract to render it his which required to be rescinded. There 
 was no gift of it to him, for there was no intention to give it to 
 him or to any one. It was simply a handing it over by a pure 
 mistake, and no property passed. As this was money, we cannot 
 test the case by seeing whether an innocent purchaser could have 
 held the property. But let us suppose that a purchaser of beans 
 goes to the warehouse of a merchant with a genuine order for so 
 many bushels of beans, to be selected from the bulk and so become 
 the property of the vendee, and that by some strange blunder the 
 merchant delivers to him an equal bulk of coffee. If that coffee 
 was sold (not in the market overt) by the recipient to a third per- 
 son, could he retain it against the merchant, on the ground that he 
 had bought it from one who had the property in the coffee, though 
 subject to be divested? We do not remember any case in which such 
 a point has arisen, but surely there can be no doubt he could not ; 
 and that on the principle enunciated by Lord Abinger, in Chandler 
 v. Hopkins, 4 M. & W., at page 404, when he says: "If a man offers 
 to buy peas of another, and he sends him beans, he does not perform 
 his contract, but that it is not a warranty. There is no warranty 
 that he should sell him peas. The contract is to sell peas, and if he 
 sends him anything else in their stead it is a nonperformance of it." 
 
 We admit that the case is undistinguishable from the one, supposed 
 in the argument, of a person handing to a cabman a sovereign by mis- 
 take for a shilling; but, after carefully weighing the opinions to the 
 contrary, we are decidedly of the opinion that the property in the 
 sovereign would not vest in the cabman, and that the question wheth- 
 er the cabman was guilty of larceny or not would depend upon this : 
 Whether he, at the time he took the sovereign, was aware of the mis- 
 take, and had then the guilty intent, the animus furandi. 
 
 But it is further urged that if the owner, having power to dis- 
 pose of the property, intended to part with it, that prevents the crime 
 from being that of larceny, though the intention was inoperative, 
 and no property passed. In almost all the cases on the subject, the 
 property had actually passed, or at least the court thought it had 
 passed; but the two cases, Rex v. Adams, 2 Russell on Crimes (4th 
 Ed.) 200, and Rex v. Atkinson, 2 East, P. C. 673, appear to have 
 been decided on the ground that an intention to pass the property, 
 though inoperative, and known by the prisoner to be inoperative, was 
 enough to prevent the crime from being that of larceny. But we 
 are unable to perceive or understand on what principles the cases 
 can be supported if Rex v. Davenport, 2 Russell on Crimes (4th Ed.) 
 201, and the others involving the same principle, are law; and though, 
 if a long series of cases had so decided, we should think we were 
 bound by them, yet we think that in a court such as this, which is in 
 effect a court of error, we ought not to feel bound by two cases 
 Mik.Ce.L.— 31
 
 482 LARCENY. (Ch. 13 
 
 which, as far as we can perceive, stand alone, and seem to us con- 
 trary both to principle and justice. 2 
 
 Cleasby, B. 3 The cases establish that, where there is a complete 
 dealing or transaction between the parties for the purpose of passing 
 the property, and so the possession parted with, there is no taking, 
 and the case is out of the category of larceny. 
 
 Considering what the penalty was, there was nothing unreason- 
 able or contrary to the spirit of our laws in drawing a dividing line, 
 and holding that, whenever the owner of property is a party to such 
 a transaction as I have mentioned, such serious consequences were 
 not to depend upon the conclusion which might be arrived at as to 
 the precise terms of the transaction, which might be complicated and 
 uncertain, and difficult to ascertain. And this agrees with Hawkins' 
 opinion (Pleas of the Crown, book I, c. 33, § 3), where (in dealing 
 with the question of what shall be a felonious taking), after pointing 
 out that, unless there has been a trespass in taking goods, there can 
 be no felony in carrying them away, he adds: "And herein our law 
 differs from the civil, which, having no capital punishment for bare 
 thefts, deals with offenses of this kind (that is, fraudulent appropria- 
 tion of things not taken) as in strict justice most certainly it may; 
 but our law, which punishes all theft with death if the thing stolen 
 be above the value of twelve pence, and with corporal punishment if 
 under, rather chooses to deal with them as civil, than criminal, of- 
 fenses." 
 
 1 believe the rule is as I have stated, and that it is not limited to 
 cases in which the property in the chattel actually passes by virtue 
 of the transaction. I have not seen that limitation put upon it in any 
 text-book on the Criminal Law; and there are, unless I am mis- 
 taken, many authorities against it. The cases show, no doubt, be- 
 yond question, that where the transaction is of such a nature that 
 the property in the chattel actually passes (though subject to be re- 
 sumed by reason of fraud or trick), there is no taking, and there- 
 fore no larceny. But they do not show the converse, viz., that when 
 the property does not pass there is larceny. On the contrary, they 
 appear to me to show that where there is an intention to part with 
 the property along with the possession, though the fraud is of such 
 
 2 Bovill, C. J., and Keating, .7.. held the prisoner guilty of larceny on the 
 ground that the property in the money wms in the crown or the Postmaster 
 General; thai neither the postmasters nor clerks had any power or authority 
 to part with either the property or possession of the moneys so deposited, 
 or any pari Of them, to any person, except upon the special authority of 
 the Postmaster General; thai therefore In this case neither the clerk nor 
 P08tml8tress had any authority to par! with th<> moneys which the clerk 
 
 placed upon the counter; and hence the case came within the principle of 
 
 Reg. v. Stewart, supra. 
 
 Kdiy. o. B., delivered a concurring opinion, and Pigott, r... concurred In 
 an opinion, on the ground that the mistaken act of the clerk in placing the 
 
 inutic ,,n the counter did nol invest the prla sr with possession, and thai 
 
 i ad of taking it up was trespassory. 
 
 8 Part of this opinion is omitted.
 
 Sec. 4) THE TRESPASS. 483 
 
 a nature as to prevent that intention from operating, there is still no 
 larceny. This seems so clearly to follow, from the cardinal rule 
 that there must be a taking against the will of the owner, that the 
 cases rather assume that the intention to transfer the property governs 
 the case than expressly decide it. For how can there be a taking 
 against the will of the owner, where the owner hands over the pos- 
 session, intending by doing so to part with the entire property. 
 
 As far as my own experience goes, many of the cases of fraud- 
 ulent pretenses which I have tried have been cases in which the pris- 
 oner has obtained goods from a tradesman upon the false pretense 
 that he came with the order from a customer. In these cases no 
 property passes either to the customer or to the prisoner, and I never 
 heard such a case put forward as a case of larceny. And the authori- 
 ties are distinct, upon cases reserved for the judges, that in such 
 cases there is no larceny. 
 
 In my opinion all the authorities warrant the proposition of law 
 as laid down by my Brother Blackburn in the last reported case 
 on the subject, Reg. v. Prince, L. R. 1 C. C. 150 (which was, like 
 the present, a case of payment under a mistake of fact) : "If the owner 
 intended the property to pass, though he would not have so intended 
 had he known the real facts, that is sufficient to prevent the offense 
 of obtaining another's property from amounting to larceny ; and 
 where a servant has an authority coequal with the master's, and parts 
 with his master's property, such property cannot be said to have been 
 stolen, inasmuch as the servant intends to part with the property in it." 
 
 With those authorities before me I cannot accept as the proper 
 test, not the intention of the owner to deliver over the property (which 
 is a question of fact), but the effect of the transaction in passing 
 the property, which might raise in many cases a question of law. 
 This appears to me to be a novelty at variance with the definition oi 
 larceny, which makes the mind and intent of the owner the test, and 
 irreconcilable with the manner in which these cases have always been 
 dealt with. 
 
 In the present case the transaction was with the clerk of the post- 
 mistress. The clerk was the person placed in the office for the pur- 
 pose (inter alia) of making payments and taking receipts. He is 
 called the clerk, and therefore his act, within the general scope of 
 his authority, would be the act of the postmistress. But it is sug- 
 gested that the postmistress was not in any sense the agent of the 
 Postmaster General, but had in each case a separate and particular 
 authority to make the payment. And upon looking into the act of 
 Parliament (St. 24 & 25 Vict. c. 14) I should not be prepared to de- 
 cide this case upon the ground that the postmistress had a general 
 authority, or more than a particular one, to make the payment of 10s. 
 to the prisoner. And if, at the time when the payment was made, 
 the postmistress or clerk had done some act wholly out of the au- 
 thority, as, for instance, payment to a stranger, I should feel a diffi-
 
 4S4 LARCENY. (Ch. 13 
 
 culty in saying it must be regarded as the act of a person capable of 
 passing the property in such a transaction. But upon this it is not 
 necessary to give a decided opinion, because the prisoner was the 
 person entitled to be paid the 10s. for which he applied under the 
 order, and the authority was to pay to him that sum. The exercise 
 of power in making too large a payment on behalf of the Postmaster 
 General was, therefore, only excessive, and (according to the ordinary 
 rule in the exercise of power) was valid, so far as it was within the 
 power ; the excess being clearly separable. 
 
 This is not the case of the postmistress being authorized to de- 
 liver one bag of money to one person and another bag of money to 
 another person. In that case the prisoner, knowingly getting the 
 wrong bag, would get something to which he had no color of title. 
 The authority here is to enter into an account with the prisoner, by 
 paying him a certain amount and making a corresponding alteration 
 in the balance. And this is done; the payment is made, and the 
 corresponding alteration in the balance ; but there is a mistake in the 
 amount paid, and so in the balance, and it becomes really the ordi- 
 nary case of payment by a banker's clerk by mistake. It appears to me 
 quite impossible, with due attention to the facts, to regard the pris- 
 oner as a stranger intervening in a transaction between other parties. 
 No other party was present or was named, and the prisoner entered 
 and left the office in the same character, viz., that of payee, though 
 he left it as payee of a larger amount than he was entitled to, and 
 carried with him the book, which was an unanswerable proof that 
 he was payee, and was payee of the larger amount. 
 
 The prisoner was, therefore, entitled to be paid the 10s. out of the 
 money handed to him, and, that being so, there is a technical objection 
 to the conviction — that there are no particular chattels or pieces of 
 money in respect of which the charge of larceny can be sustained. 
 
 But, independent of this technical objection, the duty of the pris- 
 oner, if he had acted as he ought to have done, was to have taken 
 out of the amount, and to have handed the rest to the clerk. 
 I le ought, at the same time, to have handed back his book and had 
 it corrected, because it charged him with the receipt of £8 odd; but 
 his omission to do this does not, in my opinion, involve him in the 
 charge of larceny. 
 
 There was no mistake in the person, because the prisoner handed 
 in his order and also his deposit book; and if the clerk had known 
 him well it would have made no difference. He would still have paid 
 him the wrong amount, because the same cause would have operated — 
 1< oking at the wrong order. 
 
 There was no mistake in the amount. I mean it was not the case 
 of the clerk handing him a /Mo note when he intended to hand a £. r > 
 . or, unknowingly, two notes, instead of ono. lie intended to 
 the prisoner the particular sum; and it was a deliberate act, be- 
 took the amounl from a document, and completed the trans-
 
 Sec. 4) THE TKRSPASS. 485 
 
 action by debiting the prisoner with that sum in his book. So that 
 it was not like the case of a wrong sum being put down by mistake, and 
 the prisoner snatching it up and running away with it, for the pur- 
 pose of preventing the mistake from being set right. 
 
 The mistake was in the supposed amount of the prisoner's claim. 
 The prisoner applied for 10s., and the clerk thought he was entitled 
 to more, and paid him accordingly, and his overpayment might have 
 been afterwards adopted by the postmaster, so as to make the pris- 
 oner chargeable with the balance. The clerk did not the less intend 
 to make the payment which he deliberately made because he was at 
 the time under the influence of a mistake. He would not have intended 
 to make the payment, but for the mistake. Mistakes are constantly 
 occurring, and few people can say that they have not acted under 
 their influence ; but their acts remain as acts done at the time, though 
 their effects may be afterwards corrected. No doubt there was no 
 intention to overpay the prisoner — that is, to produce the effect of 
 overpayment; but the intention was to do the act of paying the 
 larger sum, because it was thought to be the proper one. 
 
 This is the answer to one argument addressed to us, viz., that the 
 prisoner took up what was intended for another, and not for him, 
 and therefore there was a taking invito domino. The conclusion of 
 law would be quite correct, if it could be correctly said that the 
 amount was intended for another. The clerk ought to have intended 
 that amount for another, and would have done so if he had properly 
 informed himself of the facts; but, unfortunately for the prisoner, 
 the clerk did not properly inform himself of the facts, and therefore 
 he intended the prisoner to receive the larger amount. The clerk 
 intended A. to receive what he ought to have intended B. to receive ; 
 but it was not the less his intention that A. should receive what he 
 handed over to him. There was only one transaction, and only two 
 parties to it, the clerk and the prisoner, and his fault was the work 
 of an instant, and might, to an ignorant and illiterate person, be con- 
 nected with some confusion of mind, though the disparity of amount 
 in this case would make a person of any sense at once see and correct 
 the mistake. 
 
 I do not think a man ought to be exposed to a charge of felony 
 upon a transaction of this description, which is altogether founded 
 upon an unexpected blunder of the clerk. The prisoner was un 
 doubtedly at the office for an honest purpose, and finds a larger sum 
 of money than he demanded paid over to him and charged against 
 him. A man may order and pay for certain goods, and, by mistake, 
 a larger quantity than was paid for may be put in the package, and 
 he may take them away; or he may pay in excess for that which is 
 ordered and delivered. Is the person receiving to be put in the peril 
 of a conviction for felony in all such cases, upon the conclusion which 
 may be arrived at as to whether he knew, or had the means of know- 
 ing, and had the animus furandi? I think not. I think that such cases
 
 486 LARCENY. (Ch. 13 
 
 are out of the area of felony, and, therefore, the animus furandi is 
 inapplicable, and ought not to be left to the jury. And any conclu- 
 sion, founded upon the finding of the jury upon a question which 
 ought not to be left to them, must be erroneous, because the founda- 
 tion is naught. I think the conviction was against law and ought to 
 be quashed. 4 
 
 SECTION 5.— THE ANIMUS FURANDI. 
 
 THE FISHERMAN'S CASE. 
 
 (York Assizes, 1583. 2 East, P. C. 661.) 
 
 A traveler met a fisherman with fish, who refused to sell him any, 
 and he by force, and putting in fear, took away some of his fish, and 
 threw him money much above the value of it; and judgment was 
 respited, because of the doubt whether the intent were felonious on 
 account of the money given. 5 
 
 ANONYMOUS. 
 (Old Bailey, 1698. 2 East. P. C. 662.) 
 
 At the Old Bailey, 1698, before Holt, C. J., and other judges, it 
 was found that A. assaulted B. on the highway with a felonious 
 intent, and searched the pockets of B. for money, but finding none, 
 A. pulled off the bridle of B.'s horse, and threw that and some bread, 
 which B. had in pannels, about the highway, but did not take any- 
 thing from B. And resolved, upon conference with all the judges, 
 that this was no robbery, because nothing was taken from B. 6 
 
 REX v. PHILLIPS. 
 (Gloucester Assizes, 1801. 2 East, P.. C. 662.) 
 
 Phillips and Strong were indicted for stealing a mare and geld- 
 ing of John Goulter. It appeared in evidence that the prisoners 
 had gone to the stables of Goulter, who kept an inn at a place called 
 
 « Martin :iik1 Bramwell, R. P., and Brett, .7., delivered concurring opinions. 
 
 Compare Mason v. State, 32 Ark. 288 (1877); Beckham v. state (Tex. Cr. 
 
 .\pp.i 22 s. \v. 4ii (1893); Kirk v. Garrett, 84 Md. 883, :?r> Ail. 1089 (1896). 
 
 • "The better reason seems to be thai the particular goods were ool taken 
 with ji felonious Intent ; for surely there wns n sufflclenl taking and separa- 
 tion Of the goods from the person." '_' K:\st, P. C. 662. Accord: Jordan v. 
 Commonwealth, 25 Qrat (Va.) 943 (1874).
 
 Sec. 5) THE ANIMUS FURANDI. 
 
 487 
 
 Petty France, in the night of the 26th of February last, opened them, 
 and taken out the horse and mare, the subject of the indictment, and 
 rode on them to Lechlade, about 32 or 33 miles off, where they carried 
 them to different inns, and left them in care of the hostlers, direct- 
 ing them to clean and feed them, and saying that they should re- 
 turn in three hours. In the course of the same day the prisoners 
 were taken at a distance of 14 miles from Lechlade, walking toward 
 Farringdon, in Berkshire, in a direction from Lechlade. The jury, 
 being directed to consider whether the prisoners, when they took 
 the horse and mare, intended to make any further use of them than 
 to ride them, for the purpose of assisting them in their journey to- 
 wards the place where they were going, and then to leave them, 
 to be recovered by the owner or not, as it might turn out, and 
 whether they intended to return to Lechlade and make any further 
 use of them, found the prisoners guilty, but added they were of 
 opinion that theTpnsoners meant merely to ride them to Lechlade 
 and to leave them there, and that they had no intention to return 
 for them, or to make any further use of them. Upon this finding, 
 at a conference first in Easter, and afterwards in Trinity Term, 1801, 
 the judges (dissentiente Gross, J., et dubitante Lord Alvanly) 
 held it to be only a trespass, and no felony, for there was no inten- 
 tion in the prisoners to change the property or make it their own, 
 but only to use it for a special purpose — i. e., to save their labor in 
 traveling. The judge who dissented thought the case differed from 
 those first above mentioned, because here there was no intention to 
 return the horses to the owner, but, for aught the prisoners concern- 
 ed themselves, to deprive him of them. But the rest agreed that it 
 was a question for the jury, and that, if they had found the prisoners 
 guilty generally upon this evidence, the verdict could not have been 
 questioned. 
 
 REX v. CABBAGE. 
 
 (Court for Crown Cases Reserved, 1815. Russ. & R. 292.) 
 
 The prisoner was tried before Thomson, C. B., at the Lent Assizes 
 for the county of Lancaster, in the year 1815, on an indictment for 
 feloniously stealing, taking, and leading away a gelding, the prop- 
 erty of John Camplin. 1 
 
 It appeared that the gelding in question was missed by the prose- 
 cutor from his stables on Monday, the 28th of February, 1815. 
 The stable door, it appeared, had been forced open. The prosecutor 
 went the same day to a coal pit, about a mile from the stable, where 
 he saw the marks of a horse's feet. This pit had been worked out and 
 had a fence round it, to prevent persons from falling in. One of the 
 
 i The second count is omitted.
 
 488 LARCENY. (Ch. 13 
 
 rails of this fence had been recently knocked off. A man was sent 
 down into the pit, and he brought up a halter, which was proved to 
 be the halter belonging to the gelding. In about three weeks after 
 the finding of the halter, the gelding was drawn up from the coal 
 pit in the presence of the prosecutor, and who knew it to be his. 
 The horse's forehead was very much bruised, and a bone struck out 
 of it. It appeared that, at the time this gelding was destroyed, a 
 person of the name of Howarth was in custody for having stolen it 
 in August, 1813, and that the prosecutor, Camplin, had recovered 
 his gelding again about five weeks after it was taken. Howarth 
 was about to take his trial for this offense when the gelding was de- 
 stroyed in the manner stated. The prisoner, Cabbage, was taken 
 into custody on the 27th of March, 1815; and on his apprehension 
 he said that he went in company with Ann Howarth (the wife of Ho- 
 warth, who was tried for stealing the said gelding) to Camplin's 
 stable door, and that they together forced open the door and brought 
 the horse out. They then went along the road, till they came to the 
 coal pit before mentioned, and there they backed the horse into the 
 pit. 
 
 It was objected by the prisoner's counsel that the evidence in this 
 case did not prove a larceny committed of the horse; that the taking 
 appeared not to have been done with intention to convert it to the use of 
 the taker, "animo furandi et lucri causa." 
 
 Thomson, C. B., overruled the objection, and the prisoner was con- 
 victed upon the first count of the indictment for stealing the horse. 
 Judgment was passed on him, but the learned Chief Baron respited 
 the execution to take the opinion of the judges as to the propriety of 
 the conviction. 
 
 In Easter Term, 1815, the judges met to consider this case, and the 
 majority of the judges held the conviction right. Six of the learned 
 judges, viz., Richards, B., Bayley, J., Chambre, J., Thomson, C. B., 
 Gibbs, C. J., and Lord Ellen borough, held it not essential to con- 
 stitute the offense of larceny that the taking should be lucri causa. 
 They thought a taking fraudulently, with an intent wholly to deprive 
 the owner of the property, sufficient ; but some of the six learned judges 
 thought that in this case the object of protecting Howarth by the de- 
 struction of this animal might be deemed a benefit or lucri causa. 
 Dallas, J., Wood, B., Graham, B., Le Blanc, J., and Heath, J., 
 .thought the conviction wrong. 2 
 
 • Accord: State v. Brown, .'>, Strob. (S. 0.) 508 (1840); People v. Juarez, 
 28 Oil. 880 (1865); Btegall v. State, 82 Tex. Or. R, LOO, 22 S. W. 146, 40 
 Am st. Rep. 761 (1893); Mitchell v. Territory, 7 Okl. 627, 54 Pac. 782 (1808); 
 State v. McKee, it Ctah, 870, 58 D.tah, 7:::: (1888). Contra: People v. Wood- 
 ward, 81 Bun (N. v.) 07 (1883); Pence v. state, no ind. D5, 10 N. E. oio 
 (1886).
 
 
 Sec. 5) THE ANIMUS FURANbl. 4S9 
 
 REX v. WRIGHT. 
 (Old Bailey, 1828. 9 Car. & P. 554, note.) 
 
 On an indictment for larceny by a servant in stealing his master's 
 plate, it appeared that, after the plate in question was missed, but be- 
 fore complaint made to the magistrate, the prisoner replaced it ; and 
 it was proved by a pawnbroker that the plate had been pawned by the 
 prisoner, who had redeemed it ; and the pawnbroker also stated that 
 the prisoner had, on previous occasions, pawned plate and afterwards 
 redeemed it. 
 
 Huixock, B. (Holroyd, J., being present), left it to the jury to 
 say whether the prisoner took the plate with the intent to steal it, or 
 whether he merely took it to raise money on it for a time, and then 
 return it; for that in the latter case it was no larceny. The jury ac- 
 quitted the prisoner. 1 
 
 REX v. WEBB. 
 (Court for Crown Cases Reserved, 1S35. 1 Moody, C. C. 431.) 
 
 The prisoners were tried before Mr. Justice Patteson, at the Spring 
 Assizes for Cornwall, 1835, and found guilty. 
 
 The indictment charged them with stealing 100 pounds weight of 
 copper ore, the property of Stephen Davey and others. It appeared 
 in evidence that Stephen Davey and others were the adventurers in 
 a mine called the Consolidated Mine. 
 
 The prisoners and two others were tributers in their mine, but not 
 adventurers. The prosecutors of the indictment were Cornish, and 
 three others, who were also tributers in the mine, but not adventurers. 
 It appeared that tributers (generally in companies of four) take from 
 the adventurers a certain number of yards in the mine, called a pitch, 
 from which they dig out ore, and throw into a heap or pile in some 
 level, whence they convey it along the level to a shaft, and so up to 
 the surface. There it is taken by the adventurers, and the tributers 
 do not interfere further. 
 
 The tributers are paid according to their agreement, so much in the 
 pound on the selling price of the ore. Where it is very good, they 
 receive a smaller sum than where it is inferior, because the quantity 
 of labor (which is what they contribute) produces a more valuable 
 
 i In Reg. v. Phetheon, 9 Car. & P. 552 (1840), Gurney, B., said: "I think 
 that if this doctrine of an intention to redeem property is to prevail, courts 
 of justice will be of very little use. A more glorious doctrine for thieves it 
 would be difficult to discover." 
 
 In Reg. v. Trebilcock, 7 Cox, C. C. 408 (1S58), on similar facts, the jury 
 found the prisoner guilty, but recommended him to mercy, believing that he 
 intended ultimately to return the property. Held, on a case reserved, that 
 the verdict of cuilty was consistent with the ground of their recommendation. 
 See, also, Fields v. State, 6 Cold. (Tenn.) 524 (1SG9).
 
 490 LARCENY. (Ch. 13 
 
 commodity in the one case than the other. The prosecutors' pitch con- 
 tained better ore than the prisoners'. The prosecutors received 2s. 4d, 
 in the pound from the adventurers; the prisoners, 5s. 6d. 
 
 It was proved satisfactorily that the prisoners had taken a large 
 quantity of ore from the prosecutors' pile and added it to their own. 
 
 Halcomb, for the prisoners, contended, secondly, 1 that by taking 
 ore out of one pile and putting it in another the prisoners did not steal 
 from the adventurers, for both piles remain in possession of the ad- 
 venturers, if the tributers be but servants; and if the tributers be 
 tenants in common, still, as both piles were intended to come, and 
 ultimately would come, into the hands of the adventurers, there could 
 be no stealing from them. 
 
 Rogers, for the prosecutors, answered that the adventurers were 
 cheated, for they would have to pay 5s. 6d. in the pound on the ore 
 removed to the prisoners' pile, whereas, if it had remained in the prose- 
 cutors' pile, they would pay only 2s. 4d. in the pound, and, besides 
 that, the unauthorized removal of the ore from the prosecutors' pile 
 by the prisoners, with a fraudulent intention to appropriate it to their 
 own benefit, constituted a larceny the moment it was removed, which 
 could not be cured by returning it any way to the adventurers. 
 
 The learned judge was of opinion that the property was correctly 
 laid, and a larceny proved, but reserved the latter point, and requested 
 the opinion of the judges on both points. 
 
 In Easter Term, 1835, this case was considered by Lord Denman, 
 C. J., Tindal, C. J., Park, J., Littledale, J., Gaselee, J.. Bosan- 
 quet, J., Alderson, B., Williams, J., Patteson, J., an d they h eld 
 the conviction wrong ; Patteson, J., dissentiente. 2 
 
 REGINA v. RICHARDS. 
 (Monmouth Assizes, 1844. 1 Car. & K. 532.) 
 
 Larceny. The prisoner was indicted for stealing iron, the property 
 of William Williams and others, his masters. 
 
 The iron alleged to have been stolen was an iron axle of a tram 
 wagon, and it was proved that the prisoner was employed as a puddler 
 by I he prosecutors, who were partners in an iron company, and that 
 the puddlers employed by the company were in the habit of receiving 
 a i ertain quantity of pig iron, which they were to put into the furnaces, 
 and they were paid for their work according to the weight of the iron 
 drawn out of the furnace and formed into puddle bars. The prisoner 
 was detected by the foreman of the works in putting an iron axle, be- 
 
 i Part of the case, dealing with anothrr question, Is omitted. 
 '* The conviction was beld wrong on the second point 
 Accord: Reg. v. Bolloway, :'. Oox, O. C. 241 (1840); Reg. v. Poole, Dears. 
 ft B. 340 (1867). Cf. Res v Manning, i><-:irs. -i\ (1852).
 
 
 Sec. 5) THE ANIMUS FURANDI. 491 
 
 longing to the company (which was not pig iron), into the furnace 
 with the pig iron. The foreman stated that the value of the axle to 
 the company was about 7s., and he had calculated that the gain to the 
 prisoner by putting it in the furnace and melting it would be, according 
 to the mode adopted for paying for the work, a fraction more than a 
 penny. 
 
 Tindal, C. J. I doubt whether the act of the prisoner, though un- 
 questionably fraudulent and wrongful, comes within the definition of 
 a larceny, as the iron was to come back to the owners in the same sub- 
 stance, though in another form. 
 
 G. K. Rickards, for the prosecution. In the case of Rex v. Morfitt, 
 R. & R. C. C. 307, it was held that a servant's clandestinely taking 
 his master's corn to give to his master's horse is felony; and in the 
 case of Rex v. Cabbage, R. & R. C. C. 292, where the prisoner forced 
 open a stable door, and took out a horse and led it to an old coal pit, 
 and there backed it down and killed it, the object being that the horse 
 might not contribute to furnish evidence against another person, named 
 Howarth, who was under the charge of stealing it, the judges held 
 that this was larceny, although the prisoner had no intention of de- 
 riving any pecuniary benefit from taking the horse. 
 
 Tindal, C. J. I shall leave it to the jury to say whether the pris- 
 oner put the axle into the furnace with a felonious intent, to convert 
 it to a purpose for his own profit; for, if he did so, this was larceny. 
 
 His lordship left this question to the jury. 
 
 Verdict — Guilty. 
 
 REGINA v. PRIVETT. 
 
 (Court for Crown Cases Reserved, 1846. 1 Den. C. C. 193.) 
 
 The prisoners were tried before Mr. Justice ErlE, at the Spring 
 Assizes, for the county of Hants. 
 
 It was proved that the prisoners took from the floor of a barn, in 
 the presence of the thresher, five sacks of unwinnowed oats, and 
 secreted them in a loft there, for the purpose of giving them to their 
 master's horses; they being employed as carter and carter's boy, but 
 not being answerable at all for the condition or appearance of the 
 horses. 
 
 The jury found that they took the oats with intent to give them to 
 their master's horses, and without any intent of applying them for 
 their private benefit. 
 
 The learned judge reserved the case for the opinion of the judges 
 on the point whether the prisoners were guilty of larceny R. v. Mor- 
 fitt and Another, Russ. & R. 307; R. v. Cabbage, Russ.'& R. 292. 
 
 Lord Denman, C. J., Tindal, C. J., Parke, B., Patteson, J., Wil- 
 liams, J., COLTMAN, J., ROLFE, B., WlGHTMAN, J., CrESSWELL, J., 
 Erle, J., and Platt, B., met to consider this case.
 
 492 LARCENY. (Ch. 13 
 
 The greater part of the judges present (exclusive of Erle, J., and 
 Platt, B.) appeared to think that this was larceny, because the pris- 
 oners took the oats knowingly against the will of the owner, and with- 
 out color of title or of authority, with intent, not to take temporary 
 possession merely, and then abandon it (which would not be larceny), 
 but to take the entire dominion over them, and that it made no differ- 
 ence that the taking was not lucri causa, or that the object of the pris- 
 oners was to apply the things stolen in a way which was against the 
 wish ci the owner, but might be beneficial to him. But all agreed 
 that they were bound by the previous decisions to hold this to be lar- 
 ceny, though ceveral of them expressed a doubt if they should have so 
 decided, if the matter were res integra. 1 
 
 Erle, J., and Pla-iT, B., were of a different opinion. They thought 
 that the former decision proceeded in the opinion of some of the 
 judges on the supposition that the prisoners would gain by the taking, 
 which was negatived in this caje ; and they were of opinion that the 
 taking was not felonious, because to constitute larceny it was essential 
 that the prisoner should intend to deprive the owner of the property 
 in the goods, which he could not if he me^nt to apply it to his use. 
 
 i Accord: Reg. v. TJsborne, 5 Jur. 200 (1S41) ; Reg. v. Coreswell, 5 Jur. 
 251 (1841). Contra: Reg. v. Cole, 5 Jur. 200, note (1839). 
 
 "The jury were of opinion that O'Donnell had got some person to take 
 away the mare in order to extort from Peebles money, which he knew he had 
 no claim to, for a return of the mare, and that O'Donnell had the mare re- 
 turned, knowing that the money had been deposited with and would be paid 
 to him by Sweeney; and it was, in fact, paid for the return of the mare, 
 though nominally in relation to the farm, and accordingly found the prisoner, 
 O'Donnell, guilty. At the instance of Mr. Dowse, counsel for the prisoner, 
 O'Donnell, I respited sentence, and discharged him on entering into recogni- 
 zance, with two sureties, to appear at the next assizes to receive sentence. 
 We are all of opinion that the conviction was right, and that the jury were 
 right in their rinding on the questions submitted to them. It is true there 
 may not have been a larceny committed, but we think there was evidence to 
 justify the jury in such a finding." Monahan, C. J., in Regina v. O'Donnell, 
 7 Cox, C. C. 337 (1857). 
 
 Bee, also, Reg. v. Peters, 1 Car. & K. 245 (1843); Commonwealth v. Mason, 
 105 Mass. 163, 7 Am. Rep. 507 (1870); Dunn v. State, 34 Tex. Cr. R. 257, 30 
 S. W. 227, 53 Am. St. Rep. 714 (1895). 
 
 "Another point that seems to be relied on by counsel for the prisoners is 
 that <>ne of them supposed the wheel belonged to a person who owed him for 
 labor. Such a supposition, even If it were true, was neither a justification 
 nor an excuse. The law does not permit a creditor to make collection of 
 
 what Is due him |>v a larceny of his creditor's goods." Lake, C. J., in Get- 
 
 tinger v State, 13 Neb. 312. 14 N. w. 403 ;i882). Accord. Commonwealth v. 
 Btebblns, 8 Gray (Mass.) 402 (1857). Bui sec Yojng v. 3tate, 37 Tex. Cr. R. 
 457, 36 S. \V. 272 (1896).
 
 Sec. 5) THE ANIMUS PDRANDI. 41)3 
 
 REGINA v. GODFREY. 
 
 (Worcester Assizes. 1838. 8 Car. & P. 563.) 
 
 Larceny. The indictment charged the prisoner with having stolen 
 six sheets of paper, of the value of threepence, and a paper parcel con- 
 taining two letters, of the value of threepence, of the goods and chat- 
 tels of William Brinton. 
 
 It was opened by W. J. Alexander, for the prosecution, that Mr. 
 Brinton was a solicitor at Kidderminster, and that the prisoner, Mr. 
 Godfrey, was an innkeeper and stagecoach proprietor at that place, 
 and that on Saturday, the 29th of July, 1837, Mr. Brinton being at 
 Brierley Hill, engaged in the South Staffordshire election, he had 
 occasion to send two letters to Kidderminster; these letters being in- 
 closed in a parcel addressed, "Mrs. W. Brinton, Kidderminster. Im- 
 mediate." The parcel was sent by a coach of which the prisoner was 
 the proprietor. However, on Mr. Brinton's arriving at home on the 
 next day, he discovered that the parcel had not arrived ; and on a 
 note being sent to Mr. Godfrey respecting it he returned a written 
 answer, stating that no parcel had arrived directed to W. Brinton, 
 Esq., and in answer to another note he replied that no parcel had ar- 
 rived for Mr. Brinton. It would, however, be proved that the parcel 
 did arrive, and that Mr. Godfrey himself received and opened it, and, 
 finding it to contain letters, he broke the seals and read them, and then 
 disposed of them in such manner as he thought proper. 
 
 Lord Abinger, C. B. The facts you have opened are rather a tres- 
 pass than a felony. Opening a letter from idle curiosity would not be 
 felony. 
 
 W. J. Alexander. I should submit that, where the act was done 
 with intent to injure another, that would be sufficient. 
 
 Lord Abinger, C. B. The term "lucri causa" infers that it should be 
 to gain some advantage to the party committing the offense. A ma- 
 licious injury to the property of another is not enough. 
 
 W. J. Alexander. In Cabbage's Case it was held that a taking with 
 intent to destroy is a stealing, if it be done to effect an object of sup- 
 posed advantage to the party committing the offense, or to a third 
 person. There a person took a horse, and backed it into a coal pit 
 and killed it, his object being that the horse might not contribute to 
 furnish evidence against another person, who was charged with steal- 
 ing it ; and that was" held to be larceny, six judges against five hold- 
 ing it not to be essential that the taking should be lucri causa, but 
 thinking that a taking fraudulenter, with intent wholly to deprive the 
 owner of the property, was sufficient. 
 
 Lord Abinger, C. B. I cannot accede to that. If a person, from 
 idle, impertinent curiosity, either personal or political, opens another 
 person's letter, that it is not felony. Mr. Alexander has opened an 
 action for not safely delivering a parcel, in which a jury might give
 
 494 LARCENY. (Ch. 13 
 
 considerable damages. I cannot see any excuse for the conduct of the 
 defendant, if it was as stated. Still, assuming that statement to be 
 correct, it is no felony. It was evidently done to gratify some idle 
 curiosity, or, perhaps, to prevent the letters from arriving. It is a 
 trespass and a breach of contract, but no felony. 
 
 His Lordship directed an acquittal. 
 
 Verdict — Not guilty. 
 
 REGINA v. JONES. 
 (Court for Crown Cases Reserved, 1846. 2 Car. & K. 236.) 
 
 The prisoner, Elizabeth Jones, pleaded guilty to an indictment, un- 
 der St. 1 Vict. c. 36, § 28, for stealing at Ross, from an officer of the 
 post office, a post letter, the property of the Postmaster General. 1 The 
 prisoner had been cook in the employ of a Mrs. Garbett, of Upton 
 Bishop, whose service she was about to leave, having herself given 
 notice to do so, and was in treaty with a Mrs. Dangerfield, of Chelten- 
 ham, for a similar situation. Mrs. Dangerfield had consented to employ 
 her if a satisfactory answer from Mrs. Garbett should be returned 
 to a letter to be written for the purpose of making inquiries respect- 
 ing her character. This letter, the subject of the present indictment, 
 was written by Mrs. Dangerfield, directed to Mrs. Garbett, and posted 
 at Cheltenham, and was from thence duly forwarded to the post office 
 at Ross. Mrs. Garbett, having found fault with the prisoner for al- 
 lowing the friend of another servant to breakfast in the kitchen with- 
 out her leave, discharged her from her service, and told her that a 
 character would not be given to her. The day after her dismissal she 
 went to the post office at Ross, and there applied to the clerk on duty 
 for a letter from Cheltenham addressed to Mrs. Garbett, stating that 
 she was a servant in Mrs. Garbett's employ, and that Mrs. Garbett 
 expected a letter from Cheltenham that morning, which she was to 
 take ; but, upon being informed that the one letter by itself could not 
 be given, the prisoner took from the officer all the letters for Mr. and 
 Mrs. Garbett, including that written by Mrs. Dangerfield, the subject 
 of the present indictment, which she burnt, but delivered the others to 
 the person who was in the habit of conveying the letters from the Ross 
 • office to the inhabitants of Upton Bishop, and they reached Mr. 
 and Mrs. Garbett in safety. 
 
 The question for the opinion of the judges is whether the taking 
 and destroying of the letter, under these circumstances, amounted to 
 larceny. 
 
 Before Lord D] m ••.-.. C. J., Tindal, C. J., Poixock, C. B., Parke, 
 B., PaTTESON, J., Williams, J., Coi.tman, J., Roli'i:, B., Ckksswi.ll, 
 J., Eki.L, ]., and I'i.s'i T. B. 
 
 i Pari of this case is omitted.
 
 
 
 
 

 
 494 larceny. CCh. 13 
 
 P
 
 ,u/r. 
 
 i 
 
 
 **- 

 
 Sec. 5) THE ANIMUS FURANDI. 49") 
 
 The case was afterwards considered by the judges, who were of 
 opinion that the offense of the prisoner was a larceny and their Lord- 
 ships held the conviction right. 2 
 
 REGINA v. BAILEY. 
 (Court for Crown Cases Reserved, 1872. L. R. 1 C. C. 347.) 
 
 Case stated by Lush, J.: 
 
 The prisoner was indicted at Oxford at the Summer Assizes, 1871, 
 under the thirtieth section of the larceny act (St. 24 & 25 Vict. c. 96). 
 
 The first count of the indictment charged the prisoner with stealing 
 certain process of a court of record, to wit, a certain warrant of ex- 
 ecution issued out of the county court of Berkshire, in an action 
 wherein one Arthur was plaintiff, and the prisoner defendant ; also 
 another warrant of execution out of the same court in an action of 
 Halcombe & Co. against the prisoner. 
 
 The second count stated that, at the time of committing the of- 
 fense hereinafter mentioned, one Brooker had the lawful custody of 
 certain process of a court of record, to wit, a warrant of execution out 
 of the county court of Berkshire in an action between Arthur and 
 the defendant ; that defendant, intending to prevent the due course 
 of law, and to deprive Arthur of the rights, benefits, and advantages 
 from the lawful execution of the warrant, did take from Brooker 
 the said warrant, he (Brooker) having then the legal custody of it. 
 
 It was proved that two actions had been brought in the county 
 court against the prisoner, in each of which judgment had been given 
 against him, and a warrant of execution issued against his goods. 
 The high bailiff of the court made the levy under these warrants, 
 and, having done so, he handed the warrants over to his deputy bailiff, 
 and left him in possession of the goods. 
 
 The prisoner, a day or two afterwards, forcibly took the warrants 
 out of the bailiff's hands and kept them. He then ordered him away 
 as having no authority to remain there any longer, and on his re- 
 fusal to go forcibly turned him out. 
 
 The prisoner was convicted; but as the learned judge entertained 
 a doubt whether these facts supported the count for larceny, and 
 whether, as the prisoner's intention in taking the warrants was not 
 to make use of them, but merely to deprive the bailiff, as he supposed, 
 of his authority, and as the validity of the execution was not affected 
 by his taking the warrants, he was guilty of taking them for a fraud- 
 ulent purpose within the meaning of the statute, he forebore to pass 
 sentence, and admitted the prisoner to bail till the opinion of this 
 ourt should have been taken upon the above points. 
 
 No counsel appeared. 
 
 2 See. also, Reg. v. White. 9 Car. & P. 344 (1S40) ; State v. Wollraan, 34 
 Minn. 221, 25 N W. 395 (1885) ; Reg. v. Wynn, 1 Den. C. C. 365 (1848).
 
 496 larceni. (Ch. 13 
 
 Cockburn, C. J. I think the first count, charging larceny, will 
 not hold. It is clear that the prisoner took the warrants from the 
 bailiff, thinking that his authority depended on his possession of the 
 warrants, and that by taking them away he would put an end to the 
 authority. But this was not done animo furandi. It was not done 
 lucri causa. It was no more stealing than it would be to take a stick 
 out of a man's hand to beat him with it. 
 
 Under the second count, the question is whether what was done 
 was done with a fraudulent purpose. I think it was so. The purpose 
 was to deprive the officer of the power to execute process, and so to 
 defeat the execution. 
 
 Martin and Channell, BB., and Keating, J., concurred. 
 
 Lush, J. I quite concur, on consideration, in the judgment of the 
 court. I thought at first that what the statute meant was an intention 
 to use the documents for a fraudulent purpose. 
 
 Conviction affirmed. 
 
 SECTION 6.— AGGRAVATED LARCENY. 
 I. Grand Larceny. 
 
 Although that by some opinions the value of twelvepence make 
 grand larceny (22 Assiz. 39, per Thorp), yet the law is settled that 
 it must exceed twelvepence to make grand larceny (West. 1, c. 15; 
 8 E. 2, Coron. 404). * * * 
 
 If two or more be indicted of stealing goods above the value of 
 twelvepence, though in law the felonies are several, yet it is grand 
 larceny in both. 8 E. 2, Coron. 404. But if upon the evidence it 
 appears that A. stole twelvepence at one time, and B. twelvepence at 
 another time, so that the acts themselves were several at several 
 times, though they were the goods of the same person, this is petit 
 larceny in each, and not grand larceny in either. 
 
 If A. be indicted of larceny of goods to the value of five shillings, 
 yet the petit jury may upon the trial find it to be but of the value of 
 twelvepence, or under, and so petit larceny. 41 E. 3, Coron. 451; 
 18 Assiz. 14 Stamf. P. C. p. 24b. 
 
 If .\. steal goods of B. to the value of sixpence, and at another 
 time to the value of eightpence, so that all put together exceed the 
 value of twelvepence, though none apart amount to twelvepence, yet 
 this is held grand larceny, if he he indicted of them altogether. 
 Stamf. I'. C. p. 24, collected from the hooks of 8 E. 2, Coron. 415; 
 19, c. 101. 
 
 Bui if th 1 be tolen al several times from several persons, 
 
 ■ I each apart under value, as from A. fourpence, from B. sixpence,
 
 Sec. 6) AGGRAVATED LARCENY. 497 
 
 from C. tenpence, these are several petit larcenies, and though con- 
 tained in the same indictment make not grand larceny. But it seems 
 to me that if at the same time he steals goods of A. of the value of 
 sixpence, goods of B. of the value of sixpence, and goods of C. to 
 the value of sixpence, being perchance in one bundle, or upon a table, 
 or in one shop, this is grand larceny, because it was one entire felony 
 done at the same time, though the persons had several properties, 
 and therefore, if in one indictment, they make grand larceny. 
 
 1 Hale, P. C. 530. 
 
 In these prosecutions the valuation ought to be reasonable; for 
 when St. Westm. II, c. 25, was made, silver was but 20d. an ounce, 
 and at the time Lord Coke wrote it was worth 5s., and it is now 
 higher. 1 
 
 At common law the judgment for grand larceny is of death; but 
 the party may pray the benefit of his clergy, * * * an d he shall 
 also lose his goods. 
 
 2 East, P. C. 736. 
 
 REX v. JONES. 
 (Berkshire Assizes, 1830. 4 Car. & P. 217.) 
 
 The prisoner was charged with stealing in a dwelling house 68 
 yards of lace of the value of £13, the property of George Shepherd. 
 
 It appeared that the prisoner, on the 18th of October, 1829, sent 
 the lace (which was in several distinct pieces), from Abingdon to 
 London in a parcel by the coach; and it was also proved that he was 
 the shopman of Mr. Shepherd, and that no one piece of lace was 
 worth £5. 
 
 Talfour, for the prisoner, suggested that, in favorem vitae, the 
 learned Baron would take it that the pieces of lace might have been 
 stolen at different times. 
 
 i "As a general rule the market value of goods stolen, or that for which 
 similar goods are, at the time and place of the theft, commonly in the mar- 
 kets bought and sold, is the standard of value. But when things stolen have 
 no marketable value — for instance, a secondhand coffin, State v. Doepke, 68 
 Mo. 208, 30 Am. Rep. 785 ; or secondhand clothing, Pratt v. State, 35 Ohio 
 St. 514, 35 Am. Rep. 617 ; Printz v. People, 42 Mich. 144, 3 N. W. 306. 36 Am. 
 Rep. 437; or brood sows, State v. Walker, 119 Mo. 467, 24 S. W. 101J— the 
 owner may testify to the actual value of the property regardless of any 
 market value for it." Bursjess, J., in State v. Maggard, 160 Mo. 460, 61 S. 
 VV. 184, 83 Am. St. Ifcp. 484 (1001). In State v. Hathaway, 100 Iowa, 225, 
 69 N. W. 449 (1896), where the articles stolen consisted of wearing apparel 
 that had been used, it was held that in determining the market value of the 
 articles the jury was not confined to the price at which dealers in secondhand 
 clothing would buy or sell them, but that the testimony of the owner as to 
 their "reasonable market value" was competent. In State v. Brown, 55 
 Kan. 611, 40 Pac. 1001 (1895), it was adjudged that, "as the thief is stealing 
 the property from the time he takes it \ip until he lays it down," he has no 
 cause to complain if the value is estimated by the market value at the place 
 to which it was taken by him and sold. 
 Mik.Cr.L.— 32
 
 498 LARCENY. (Ch. 13 
 
 Boixand, B. I cannot assume that to have been so. We find that 
 the lace is all sent in one parcel, and all brought out of the prose- 
 cutor's house at once, and unless you can give some evidence to 
 show that it was stolen at different times you do not raise your 
 w point 1 ; but, even if you did, I should think it would be of no avail, 
 for on the last winter circuit it appeared that a person at Bright- 
 on stole goods in the same way that you wish me to suppose that 
 this prisoner did, for it was shown that he stole the articles one or 
 two at a time, and under value, but that he carried them out of his 
 master's house all together, the articles amounting in all to more 
 than £5 value, and Mr. Baron Garrow, after much consideration, held 
 that, as the articles were all brought out of the prosecutor's house 
 together, it was a capital offense. 
 
 Verdict— Guilty. 2 
 
 REX v. BIRDSEYE. 
 (Bedford Assizes, 1830. 4 Car. & P. 386.) 
 
 Indictment for stealing pickled pork, a bowl, some knives, and a 
 loaf of bread. 
 
 It appeared that the prisoner entered the shop of the prosecutor 
 and ran away with the pork. In about two minutes he returned, re- 
 placed the pork in a bowl, which contained the knives, and took away 
 the whole together, threatening destruction to any one who followed 
 him. In about half an hour after, he came back to the prosecutor's 
 shop and took away the loaf. 
 
 Mr. Justice Littledale. This taking away the loaf cannot be 
 given in evidence upon this indictment. I think that the prisoner's 
 taking the pork, and returning in two minutes, and then running 
 off with the bowl, must be taken to be one continuing transaction ; 
 but I think that half an hour is too long a period to admit of that 
 construction. The taking of the loaf, therefore, is a distinct offense. 
 
 The prisoner was acquitted ; the learned judge telling the jury that 
 the felonious intent was not sufficiently made out. 3 
 
 i Accord: Ackerman v. State, 7 Wyo. 504, 54 Pac. 228 (1S08). 
 
 s Accord: state v. Mandich, 24 Nov. 836, 64 Pac. 516 (1898). Cf. Scarver 
 v. Stale. 58 Miss. -107 (1876); Cody v. State, 31 Tex. Cr. R 183, 20 S. W. 
 308 HS02). 
 
 Bee, also, State v. Jdaggard, 1G0 Mo. 400, 01 S. W. 184, 83 Am. St. Rep. 
 484 (l'JOO).
 
 SeC. 6) AGGRAVATED LARCENY. 499 
 
 II. Larceny from Particular Places. 
 
 Larceny from the house is not distinguished at common law from 
 simple larceny, unless where it is accompanied with the circumstance 
 of breaking the house at night, when it falls under another description, 
 that of burglary. * * * Now by various acts of Parliament the 
 benefit of clergy is taken away from larcenies committed in a house 
 in almost every instance. 1 
 
 2 East, P. C. 623. 
 
 REX v. OWEN. 
 (Court for Crown Cases Reserved, 1792. 2 Leach, C. C. [4th Ed.] 572.) 
 
 Edward Owen was indicted for stealing 105 guineas, the property of 
 James Foreman, in the dwelling house of Patrick Brady. Brady kept 
 a public house in Holborn, into which Foreman was seduced by the 
 prisoner, under pretense of dividing the value of a cross which the 
 prisoner picked up and pretended to have found in the street, and then 
 the prisoner obtained the 105 guineas from the prosecutor, under ex- 
 actly the same circumstances as have been repeatedly given in evidence 
 in the ring dropping cases. 2 
 
 The jury found the prisoner guilty; but the judgment was respited, 
 and the case reserved for the opinion of the twelve judges, on a ques- 
 tion whether, as this was a taking from the person of Foreman, though 
 in the dwelling house of Brady, the prisoner was ousted of his clergy 
 under St. 12 Anne, c. 7. 
 
 Mr. Justice Ashurst, in February Session, 1793, said that the judges 
 were of opinion that the prisoner was not, under the circumstances of 
 this case, deprived of his clergy by &t. 12 Anne, c. 7, and that this 
 opinion was founded on the authority of the case of Rex v. Campbell, 
 in January Session, 1792 ; for that, to bring a case within this statute, 
 the property stolen must be under the protection of the house, and de- 
 posited therein for safe custody, as the furniture, plate, money kept 
 in the house, and not things immediately under the eye or personal 
 care of some one who happens to be in the house. 3 
 
 i By statutes in England and in most of our states larceny from certain 
 enumerated places has been made a substantive crime — as from a dwelling, 
 a house, a building, a shop, a warehouse, an office, a vessel, etc. 
 
 2 The statement of the case is printed from 2 East, P. C. 645. 
 
 3 Accord: Commonwealth v. Lester, 129 Mass. 101 (18S0) ; State v. Pat- 
 terson 98 Mo. 283, 11 S. W. 72S (18S9). Contra: Simmons v. State, 73 Ga. 
 609, 54 Am. Rep. 885 (1884). See. also, Henry v. State, 39 Ala. 679 (1SG6) ; 
 Martinez v. State, 41 Tex. 126 (1874). 
 

 
 500 LARCENY. (Ch. 13 
 
 REX v. TAYLOR. 
 
 (Court for Crown Cases Reserved, 1S20. Russ. & R. 41S.) 
 
 The prisoner was tried and convicted before Mr. Justice Park, in 
 the year 1820, of stealing a watch in the dwelling house of John Wake- 
 field, to the value of 40 shillings. 
 
 The prisoner lodged in the house of John Wakefield, and the prose- 
 cutor, who was an old acquaintance of the prisoner, and who could 
 not get a bed in the public house where they met, accepted an in- 
 vitation to take part of the prisoner's bed. They went home together, 
 and neither John Wakefield nor any of his family knew of the prose- 
 cutor's being there, so that he was the guest of the prisoner. The 
 prisoner stole the prosecutor's watch from the bed head. 
 
 It having been held that the statute of 12 Anne (St. 1, c. 7) does 
 not extend to a man stealing in his own house, the learned judge 
 doubted whether the prisoner was not to be considered as the owner 
 of the house with respect to the prosecutor. The statute was made 
 for the protection of property deposited in the house, and not on the 
 person of the party; and the prosecutor was neither the occupier 
 nor a settled inhabitant of the house in which the watch was taken. 
 The learned judge respited the judgment, to take the opinion of the 
 judges on this conviction. 
 
 In Easter Term, 1820, ten of the judges met and considered this case. 
 The majority, viz., Burrough, J., Holroyd, J., Wood, B., Bayley, J., 
 Graham, B., Richards, C. B., and Abbott, Lord C. J., held the con- 
 viction right. 1 Richardson, J., Best, J., and Garrow, B., contra. 
 
 
 III. Robbery. 
 
 There is also a kind of theft, rapine, which is the same with us as 
 robbery, and it is another kind of handling against the will of the own- 
 er, and a like punishment follows each offense, and hence a robber 
 is called a hardened thief, for who handles anything more against the 
 will of the owner, than he who carries off by violence? 
 
 Bracton, f. 150, b. 
 
 i Accord: Rex v. Hamilton, 8 Car. & P. 49 (1837).
 
 Sec. 6) AGGRAVATED LARCENY. 501 
 
 WRIGHT'S CASE. 
 
 (Upper Bench, 1G49. Style 56.) 
 
 In the case of one Wright, brought upon the statute of hue and 
 cry, Roll, Chief Justice, said : That if a man's servant be robbed of 
 his master's goods in the sight of his master, this shall be taken for 
 a robbing of the master. And if one cast away his goods to save 
 them from a robber, and the robber take them up, and carry them 
 away, this is a robbery done to his person. 
 
 HARMAN'S CASE. 
 (King's Bench, 1701. 2 East, P. C. 736.) 
 
 Harman, being on horseback, desired Halfpenny to open a gap for 
 him, and, while he was so doing Harman took the opportunity, unper- 
 ceived, to pick his pocket of his purse. Halfpenny, turning round 
 and seeing the purse in Harman's hand, demanded it of him, and Har- 
 man answered him : "Thou villain, if thou speakest but a word of 
 thy purse, I will pluck thy house over thy ears and drive thee out of 
 the country, as I did John Somers." 1 And so he went away with his 
 purse. On an indictment for robbery, the prisoner was held guilty 
 of simple larceny only; the property being obtained by stealth, and. 
 not by violence or putting in fear. 2 
 
 DAVIES' CASE. 
 
 (Old Bailey, 1712. 2 East, P. C. 709.) 
 
 Davies, alias Beard, was indicted for taking a gentleman's sword 
 from his side, clam et secrete ; but, it appearing that the gentleman 
 perceived that Davies laid hold of his sword, and that he himself laid 
 hold of it at the same time and struggled for it, this was adjudged 
 robbery. 8 
 
 i The menaces are inserted from the report of the case in 2 Rolle's Report,. 
 154. 
 
 2 Accord: Jackson v. State, 114 Ga. 826, 40 S. E. 1001, 88 Am. St. Rep. 
 60 (1902). 
 
 3 Accord: Williams v. Commonwealth (Ky.) 50 S. W. 240 (1S99). 
 "Violence may be used for four purposes: (1) To prevent resistance. (2> 
 
 To overpower the party. (3) To obtain possession of the property. (4) To 
 effect an escape. Either of the first two makes the offense robbery. The last, 
 I presume it will be conceded, does not. The third is a middle ground. In 
 general, it does not make the offense robbery ; but sometimes, according to 
 some of the cases, it does." Pearson, J., in State v. John, 50 N. C. 167, 69 
 Am. Dec. 777 (1857). 

 
 502 LARCENY. (Cll. 13 
 
 HUGHES' CASE. 
 (Lancaster Assizes, 1825. 1 Lew. 301.) 
 
 Prisoners were indicted for robbery. It appeared in evidence that 
 they, together with others, their companions, hung around the prose- 
 cutor's person in the streets of Manchester, and rifled him of his 
 watch and money. It did not appear, however, that any force was 
 used, or any menace; but they so surrounded him as to render all 
 attempt at resistance hazardous, if not vain. 
 
 Per Bayeey, J. In order to constitute robbery, there must be ei- 
 ther force or menaces. If several persons so surround another as to 
 take away the power of resistance, this is force. 
 
 Prisoners were convicted. 1 
 
 REX v. EDWARD. 
 (Winchester Assizes, 1833. 1 Moody & R. 257.) 
 
 Indictment for robbery. 
 
 The money was obtained from the witness by a threat to accuse 
 her husband of an unnatural offense, and the money so obtained was 
 the property of the husband, the prosecutor. 
 
 Littledale, J., said the case was new and perplexing. He thought 
 it was rather a misdemeanor. To make a case of this description a 
 robbery, the intimidation should be on the mind of the person threat- 
 ened to be accused, 2 and the apprehension of the wife was of a dif- 
 ferent character. St. 7 & 8 Geo. IV, c. 2, § 7, is in terms confined 
 to threats made to the party himself. The principle is that the per- 
 son threatened is thrown off his guard, and has not firmness to resist 
 the extortion ; but he could not apply that principle to the wife of 
 the party threatened. Even as a misdemeanor, the case was new, 
 though he thought that the only way to treat the offense. He there- 
 fore directed an acquittal. 
 
 The prisoner was acquitted. 
 
 i S''«'. also, Commonwealth v. Snetllng, 4 Bin. (Pa.) 379 (1S12); Snyder v. 
 Commonwealth (Ky.) "> S. -u\ 679 (1900). 
 
 ■i See K'x v. Donnelly, 1 Leach, 229 (1779). Cf. Rex v. Knewland, 2 
 Leach, 72 (1796); Long v. State, 12 Ga. 293 (1852). 
 
 In Thompson v. State, 61 Neb. 210, 86 N. W. xi. 87 Am. St. Rep. 458 (1901), 
 it was held timf a threal to accuse ;i person <>f an unnatural crime was BUffl- 
 cienl violence to constitute robbery, and thai the person bo threatened wns 
 Justified in killing the robber as a necessary means of defense.
 
 Sec. 6) AGGRAVATED LABCENY. 503 
 
 HILL v. STATE. 
 
 (Supreme Court of Nebraska, 1894. 42 Neb. 503, 60 N. W. 916.) 
 
 Post, J. 1 Exception was taken also to the following instruction: 
 "You are therefore instructed in this case, if you believe from the 
 evidence beyond any reasonable doubt that, at the time of the alleged 
 killing of Mattes Akeson, the defendant, Harry Hill, with John Ben- 
 well, had entered his dwelling house, armed with a deadly weapon 
 or weapons, for the purpose of intimidating the deceased for the 
 furtherance of their purpose to steal, take, and carry away by force 
 and violence the money or any article of personal property of the 
 deceased's dwelling house, and that in the prosecution of that pur- 
 pose and design the defendants, or either of them, shot the deceased, 
 and thereby caused his death, * * * that such killing would be 
 murder in the first degree." 
 
 There appears to have been an error or omission in the transcrib- 
 ing of the above instruction, wherein the court is made to say that 
 the accused might be convicted if he feloniously killed the deceased 
 while engaged with his codefendant in attempting forcibly to take, 
 steal, or carry away "any article of personal property of the deceased's 
 dwelling house." But the objection to the instruction is upon other 
 grounds, viz., that it authorizes a conviction provided the jury should 
 find that the defendant forcibly entered the house of the deceased 
 for the purpose of committing a larceny. Robbery at common law 
 was defined as larceny committed by violence from the person of 
 one put in fear. 2 Bishop, Criminal Law, 1156. By section 13 of our 
 Criminal Code it is provided that "if any person shall forcibly and 
 bv violence, or by putting in fear, take from the person of another 
 any money or personal property of any value whatever with the in- 
 tent to rob or steal, every person so offending shall be deemed guilty 
 of robbery, and upon conviction thereof shall be imprisoned in the 
 penitentiary not more than fifteen nor less than three years." The 
 taking, according to each definition, must be from the person, since 
 the crime of robbery is an offense as well against the person as 
 against property. It is, however, not essential to a conviction for 
 the crime named that the property be taken from the body of the 
 person wronged. It is sufficient if taken from his personal presence 
 or personal protection. 2 Bishop, Criminal Law, 1177, 117S ; United 
 States v. Jones, 3 Wash. C. C. (U. S.) 209, Fed. Cas. No. 15.494; 
 Clements v. State, 84 Ga. 660, 11 S. E. 505, 20 Am. St. Rep. 381 
 State v. Calhoun, 72 Iowa, 432, 34 N. W. 194, 2 Am. St. Rep. 252. 
 In the last-named case, which was under a statute similar to ours, 
 the prisoner was shown to have bound the prosecutrix, and by put- 
 ting her in fear extorted information respecting the place where 
 
 i Part only of this case is printed.
 
 504 LARCENY. (Ch. 13 
 
 her money and other personal property was kept. Leaving her 
 bound, he went to the place designated by her in another room of 
 the same house and took the property named in the indictment. In 
 the opinion the court, by Beck, J., uses this language: "The thought 
 of the statute, as expressed in the language, is that the property 
 must be so in the possession or under the control of the individual 
 robbed that violence or putting in fear was the means used by the rob- 
 ber to take it." And in Clements v. State the prisoner, by threats of 
 violence, detained the prosecutor in an outhouse while a confederate 
 entered his dwelling, 15 paces distant, and took therefrom the prop- 
 erty described, and the taking was held to be in the presence of the 
 prosecutor, within the meaning of the statute defining robbery. The 
 taking of the property of the deceased from his dwelling under the 
 circumstances indicated by the instruction would have been robbery. 
 It would also have sustained a conviction for larceny. Brown v. 
 State, 33 Neb. 354, 50 N. W. 154. The objection to the instruction 
 is, therefore, without merit. 2 
 
 2 See, also, Williams v. State, 37 Tex. Cr. R. 147, 38 S. W. 999 (1897) ; 
 State v. Kennedy, 154 Mo. 268, 55 S. W. 293 (1899). Compare Jackson v. 
 State, 114 Ga. 826, 40 S. E. 1001, 88 Am. St. Rep. 60 (1902).
 
 EMBEZZLEMENT. 505 
 
 CHAPTER XIV. 
 EMBEZZLEMENT. 
 
 If any servant or clerk, or any person employed for the purpose 
 in the capacity of servant or clerk, to any person or persons whom- 
 soever, or to any body corporate or politic, shall [by virtue of such 
 employment] x receive or take into possession any money, goods, bond, 
 bill, note, banker's draft, or other valuable security or effects, for, 
 in the name or on account of his master or masters, or employer or 
 employers, and shall fraudulently embezzle, secrete, or make away 
 with the same, or any part thereof, every such offender shall be 
 deemed to have feloniously stolen the same from his master or 
 masters, employer or employers, for whose use or in whose name 
 or names, or on whose account the same was or were delivered to 
 or taken into the possession of such servant, clerk, or other person 
 so employed, although such money, goods, bond, bill, note, banker's 
 draft, or other valuable security was or were not otherwise received 
 into the possession of his or their servant, clerk or other person so 
 
 St. 39 Geo. Ill, c. 85. 
 
 REX v. SMITH. 
 
 (Court for Crown Cases Reserved, 1823. 1 Lew. 86.) 
 
 Thomas Smith was indicted under the above statute 2 for embez- 
 zling a £1 promissory note, and 17s. 6d., the property of his masters, 
 H. and J. 
 
 The facts were as follows: H. and J. who farmed the tolls of 
 Y. and also of Z., requested B., who was hired by them to collect at 
 Y., to receive to their use the tolls collected at Z., and they desired 
 the collector at Z. to pay them over to B. at convenient opportunities. 
 B. appropriated to his own use the tolls so paid over by the col- 
 lector of Z. 
 
 The question was whether this was an act of embezzlement within 
 the meaning of the statute. 
 
 i The words in brackets are omitted in the present statute. St. 24 & 25 
 Vict. c. 96, § 68. 
 
 2 St. 39 Geo. Ill, c. 85. The statute is omitted.
 
 
 506 EMBEZZLEMENT. (Ch. 14 
 
 The prisoner was found guilty of the embezzlement, whereupon 
 Holroyd, J., reserved the point for the consideration of the judges, 
 of whom five 2 thought the conviction proper, and three 3 that it 
 was wrong. 
 
 REX v. SNOWLEY. 
 
 (Norwich Assizes, 1S30. 4 Car. & P. 390.) 
 
 Embezzlement. It appeared that the prisoner was hired by the 
 prosecutor to lead a stallion round the country during the season, 
 and he was to charge for each mare 30s., and not to take less than 
 20s. He stated that his account contained every sum due to his 
 master; but it was proved that a sum of 6s., which was the whole 
 charge he had made for covering one mare, was not included in his 
 account. 
 
 Mr. Justice J. Parke (having conferred with Mr. Justice LiTTLE- 
 dale). This is not an embezzlement. To constitute an embezzlement, 
 the prisoner must have received the money by virtue of his employ- 
 ment; and as it was his duty to take 30s., and not less than 20s.. 
 this sum 6s. was not received' by him by virtue of his employment. 
 He must, therefore, be acquitted. 
 
 Verdict — Not guilty. 4 
 
 REGINA v. ASTON. 
 
 (Warwick Assizes, 1847. 2 Car. & K. 413.) 
 
 Embezzlement. The prisoner was indicted for embezzling the 
 sum of 6s., received by him as the servant of John and Joseph Fulford. 
 
 The prosecutors were brewers at Birmingham, and the prisoner 
 was their drayman, and was sent out daily with porter for his mas- 
 ters' customers, and also with a surplus quantity, which he had 
 authority to sell at a certain fixed price only, viz., at 9s. 6d. a dozen. 
 The prisoner sold a dozen of this porter at 6s. to Jeremiah Webb, 
 in the month of July, 1846, but did not receive the money at the 
 time of the sale, but said he should call for it afterwards. One of 
 the Messrs. Fulford heard of the transaction from the customer, 
 and told him to let the prisoner have the money, but this was un- 
 
 2 Park, J., Burrough, J., Best, J., Bullock, B., and Bayley, J., because. 
 
 though tills was oul of the ordinary 'nurse of the prisoner's employment, 
 
 ye\ be whs servant to H. and J., and In his character of Bervanl to them bad 
 
 submitted to be employed by them to receive the notes and moneys, and 
 
 received them by virtue of bis being bo employed. 
 
 Abbott, I-. O. .f.. Holroyd, J., and Garrow. r... because tbe prisoner did 
 ,,,,i receive the note, etc., by virtue of bis employment, Inasmucb as it was 
 ,, u i of the course of bis employment to receive them. 
 
 i Accord: Reg. v. Harris, s, BJng i>. A Bq. Rep. 679(1864).
 
 EMBEZZLEMENT. 507 
 
 known to the prisoner; and on the 20th of August following, the 
 prisoner having called for the money, the customer, Webb, paid it 
 to him, and, the prisoner having denied the receipt of it to the prose- 
 cutors, he was apprehended. 
 
 Hayes, for the prisoner, objected that the money was not received 
 by virtue of the prisoner's employment; the prosecutor having prov- 
 ed that the prisoner had no authority to sell at the price charged, 
 and cited the case of Rex v. Snowley, 4 Car. & P. 390. 
 
 Patteson, J., after conferring with Parke, B., said that he had 
 great doubts as to the authority of the case cited, and that Baron 
 Parke and himself also considered that, as the master in the pres- 
 ent case had authorized the customer to make payment to the pris- 
 oner, the master was bound by that payment, and could not demand 
 more of the customer, and that the evidence was sufficient to support 
 the indictment. 1 , 
 
 Verdict— Guilty. 
 
 REGINA v. CUIXUM. 
 (Court for Crown Cases Reserved, 1S73. L. R. 2 C. C. 28.) 
 
 Case stated by the chairman of the West Kent Sessions. 
 
 The prisoner was indicted, as servant to George Smeed, for steal- 
 ing £2, the property of his master. 
 
 The prisoner was employed by Mr. Smeed, of Sittingbourne, Kent, 
 as captain of one of Mr. Smeed's barges. 
 
 The prisoner's duty was to take the barge with the cargo to 
 London, and to receive back such return cargo, and from such per- 
 sons, as his master should direct. The prisoner had no authority to 
 select a return cargo, or take any other cargoes but those appointed 
 for him. The prisoner was entitled, by way of remuneration for his 
 services, to half the earnings of the barge, after deducting half his 
 sailing expenses. Mr. Smeed paid the other half of such expenses. 
 The prisoner's whole time was in Mr. Smeed's service. It was the 
 duty of the prisoner to account to Mr. Smeed's manager on his re- 
 turn home after every voyage. In October last, by direction of Mr. 
 Smeed, the prisoner took a load of bricks to London. In London 
 he met Mr. Smeed, and asked if he should not on his return take 
 a load of manure to Mr. Pye, of Caxton. Mr. Smeed expressly 
 forbade his taking the manure to Mr. Pye, and directed him to re- 
 turn with his barge empty to Burham, and thence take a cargo 
 of mud to another place, Murston. Going from London to Murston, 
 he would pass Caxton. Notwithstanding this prohibition, the prisoner 
 took a barge load of manure from London down to Mr. Pye, at 
 
 i In Rex v. Harris, 25 Eng. L. & Eq. Rep. 579 (1854), ";irke, B., adhered 
 to his ruling in Rex v. Snowley.
 
 508 EMBEZZLEMENT. (Ch. 14 
 
 Caxton, and received from Mr. Pye's men £4 as the freight. It 
 was not proved that he professed to carry the manure or to receive 
 the freight for his master. The servant who paid the £4 said that 
 he paid it to the prisoner for the carriage of the manure, but that 
 he did not know for whom. Early in December the prisoner re- 
 turned home to Sittingbourne, and proposed to give an account of 
 his voyage to Mr. Smeed's manager. The prisoner stated that he 
 had taken the bricks to London, and had returned empty to Burham, 
 as directed by Mr. Smeed, and that there he had loaded with mud 
 for Murston. 
 
 In .answer to the manager's inquiries, the prisoner stated that he 
 had not brought back any manure in the barge from London, and 
 he never accounted for the £4 received from Mr. Pye for the freight 
 for the manure. 
 
 The jury found the prisoner guilty, as servant to Mr. Smeed, of 
 embezzling £2. 
 
 The question was whether, on the above facts, the prisoner could 
 be properly convicted of embezzlement. 1 
 
 Bovill, C. J. In the former act relating to this offense were the 
 words "by virtue of his employment." The phrase led to some diffi- 
 culty; for example, such as arose in Reg. v. Snowley, 4 C. & P. 
 390, and Reg. v. Harris, Dears. Cr. C. 344. Therefore in the present 
 statute those words were left out; and section 68 requires instead 
 that, in order to constitute the crime of embezzlement by a clerk 
 or servant, the "chattel, money, or valuable security * * * shall 
 be delivered to, or received, or taken into possession by him, for or 
 in the name or on account of his master or employer." 
 
 Those words are essential to the definition of the crime of em- 
 bezzlement under that section. The prisoner here, contrary to his 
 master's order, used the barge for his (the servant's), own purposes, 
 and so earned money which was paid to him, not for his master, 
 but for himself; and it is expressly stated that there was no proof 
 that he professed to carry for the master, and that the hirer at the 
 time of paying the money did not know for whom he paid it. The 
 facts before us would seem more consistent with the notion that the 
 prisoner was misusing his master's property, and so earning money 
 for himself, and not for his master. Under those circumstances, the 
 money would not be received "for," or "in the name of," or "on 
 account of" his master, but for himself, in his own name, and for 
 his own account. I lis act, therefore, does not come within the terms 
 of the statute, and the conviction must be quashed. 2 
 
 i Argument of counsel Is omitted. 
 
 • Concurring opinions of Bramwell, B., and Blackburn and Archibald, JJ., 
 arc omitted. 
 
 ••whoever embezzles or fraudulently converts to als own use, or secretes, 
 with Intent to embezzle or fraudulently convert t<> his own use, money, goods 
 
 or property delivered to him, which may he the subject of larceny, or any
 
 EMBEZZLEMENT. 509 
 
 part thereof, shall be deemed guilty of larceny." Cr. Code 111. (Rev. St. 
 1874, c. 38) § 74. 
 
 Similar statutes are in force in many states. It is generally held that a 
 person cannot be convicted under these statutes on an indictment for lar- 
 ceny, simply, as at common law; that nothing that was larceny at common 
 law is larceny under these statutes, and nothing that is larceny under the stat- 
 utes is larceny at common law ; but that, in order to convict a person of Larceny 
 under these statutes, the indictment must set out the acts of embezzlement and 
 then aver that so the defendant committed the larceny. Fulton v. State, 13 
 Ark. 108 (1852); Kibs v. People, 81 111. 599 (1876); Commonwealth v. Doherty, 
 127 Mass. 20 (1879) ; State v. Harmon, 106 Mo. 635, 18 S. W. 128 (1891) ; Colip 
 v. State, 153 Ind. 584, 55 N. E. 739, 74 Am. St. Rep. 322 (1899) ; Zysman v. 
 State, 42 Tex. Cr. R. 432, 60 S. W. GG9 (1901). But see State v. Taberner, 14 
 R. I. 272, 51 Am. Rep. 382 (1SS3) ; State v. Shirer, 20 S. C. 392 (1883). 
 
 In England and many of the United States statutes exist providing that a 
 person indicted for larceny may be convicted of embezzlement. In Huntsman 
 v. State, 12 Tex. App. G19 (1882), and State v. Harmon, 106 Mo. 635, 18 S. 
 W. 128 (1891), such statute is declared to infringe the constitutional privi- 
 lege of the accused to be informed of "the nature and cause" of the accusa- 
 tion against him. 
 
 In Reg. v. Gorbutt, Dears. & B. 166 (1857), it was held that such statute does 
 not authorize a conviction of larceny, if there is evidence of embezzlement 
 only.
 
 
 510 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 CHAPTER XV. 
 
 OBTAINING PROPERTY BY CHEATS AND FALSE 
 
 PRETENSES. 
 
 SECTION 1.— GENERAL PRINCIPLES. 
 
 Forasmuch as many light and evil-disposed persons, not mind- 
 ing to get their living by truth, according to the laws of this realm, 
 
 * * * knowing that if they come to any * * * goods, chat- 
 tels and jewels by stealth, that then they, being thereof lawfully 
 convicted according to the laws of this realm, shall die therefore; 
 have now of late falsely and deceitfully contrived, devised and im- 
 agined privy tokens, and counterfeit letters in other men's names, 
 unto divers persons their special friends and acquaintances, for the 
 obtaining of money, goods, chattels and jewels of the same persons: 
 
 * * * Be it ordained * * * that if any person or persons 
 falsely and deceitfully obtain or get into his or their hands or pos- 
 session, any money, goods, chattels, jewels, or other things of any 
 other person or persons, by color and means of any such false 
 token or counterfeit letter * * * every person and persons so 
 offending, and being thereof lawfully convict, * * * shall suf- 
 fer, etc. 
 
 St. 33 Hen. VIII, c. 1. 
 
 REGINA v. JONES. 
 
 (King's Bench, 1703. 1 Salk. 379.) 
 
 Mr. Parker moved to quash an indictment, which was that the 
 defendant came to A., pretending B. sent him to receive £20, and 
 received it, whereas B. did not send him. Et Per Cur. It is not 
 indictable unless he came with false tokens; we are not to indict 
 one man for making a fool of another. Let him bring his action. 1 
 
 i See, ulsu, chapter II, 8 7, Bupra.
 
 Sec. 2) THE PROPERTY OBTAINED. 511 
 
 All persons who knowingly and designedly by false pretence or 
 
 /pretences shall obtain from any person or persons, money, goods, 
 wares or merchandizes, with intent to cheat or defraud any person 
 or persons of the same, * * * shall be deemed offenders against 
 law and public peace. 1 
 St. 30 Geo. II, c. 24. 
 
 SECTION 2.— THE PROPERTY OBTAINED. 
 
 PEOPLE v. CUMMINGS. 
 
 (Supreme Court of California, 1896. 114 Cal. 437, 46 Pac. 284.) 
 
 Van Fleet, J. 2 Defendant was accused by information of the 
 crime of obtaining property by false pretenses, under section 532 
 of the Penal Code; the property charged to have been obtained 
 being described as two certain parcels of land. He demurred to 
 the information as not stating an offense. The demurrer was sus- 
 tained, and the people appeal; the sole question being whether land 
 is such property as to be the subject of the offense sought to be 
 charged. 
 
 The offense of false pretenses under the English statutes has 
 always been construed as largely analogous to and closely border- 
 ing upon that of larceny, and as applying only to personal prop- 
 erty, which was capable of manual delivery, and the subject of the 
 latter offense, and has always been punishable in much the same 
 manner as larceny. Real property under the English law was nev- 
 er the subject of the offense either of cheating or of false pretenses. 
 Being incapable of larcenous asportation, it was not regarded as 
 requiring at the hands of the criminal law the same protection as 
 personalty. 
 
 Our American statutes upon the subject have all followed more 
 or less closely those of England. As indicated, there are slight dif- 
 ferences in language, but in substantive purpose and effect they are 
 the same. Some, instead of employing the specific terminology of 
 the English statutes in designating the character of the property 
 made the subject of the offense, have used more general and per- 
 haps more comprehensive terms, such, for instance, as those found 
 in the provision of our Code above quoted. In their interpreta- 
 tion, however, of the purpose and effect of these statutes, the 
 American courts, by reason, no doubt, of the origin of the offense, 
 and in obedience to a well-established rule of statutory construc- 
 
 i The present statute in England is St. 24 & 25 Vict. c. 96, § 88. 
 2 Only extracts from the opinion are printed.
 
 
 512 CHEATING AND FALSE PRETENSES. (Cll. 15 
 
 tion, have closely followed in a general way that of the English 
 courts, and the statutes of the various states, however general their 
 terms, have been uniformly held to apply only to personal property 
 of a larcenous nature. 
 
 The judgment is affirmed. 
 
 SECTION 3.— THE INTEREST ACQUIRED. 
 
 CANTER v. STATE. 
 
 (Supreme Court of Tennessee, 1SS1. 7 Lea, 349.) 
 
 MacFarland, J., delivered the opinion of the court. 1 
 
 This is a conviction for obtaining goods under false and fraud- 
 ulent pretenses. When analyzed, the charge means this: that upon 
 the pretense of the defendant that he could not try on the articles 
 at the store to see if they would fit the owner permitted him to take 
 them away for the purpose of trying them on, upon his promise 
 to return them; the defendant at the same time representing that 
 Leming owed him $1.75, and would come and buy the articles for 
 him and pay for them. And this is the case made by the proof. 
 The merchant in his testimony says in substance that there was no 
 sale of the goods, the title did not pass, they were to be returned 
 in any event, and there was to be no sale until Leming came and 
 paid for the goods; that he would not sell to either of them, ex- 
 cept for the cash. The defendant, however, failed to return the 
 goods, and it was proven that Leming owed him nothing and had 
 not promised to purchase the goods for him. 
 
 The motion of the defendant to arrest the judgment should have 
 been sustained. 
 
 First. The indictment does not make a case under our statute, 
 which is said to be almost a transcript of the English statute (St. 
 30 Geo. II, c. 24) and of the New York statute. To make out a 
 case, it must appear that the owner meant to part with the right 
 of property in the thing obtained, ^.Kl" 01 the mere possession of 
 jt. j I f tfie owner part with the possession only, and not the right 
 of property, it is larceny. See Archbold Cr. PI. & Pr. marg p. 
 liii. Or if the felonious purpose to appropriate the goods be form- 
 ed after the po ion was obtained, it might be a felonious breach 
 of trust under our statute. 
 
 Th<- judgment of the circuit court must be arrested.' 
 
 i Part of the opinion is omitted. 
 
 i Accord: State v. Vlckery, 19 Tex. 826 (1867); Reg. v. Kilham, T,. It. 
 L 0. 0. 261 (1870); State v. Anderson, 47 Iowa, 142 (1877); Lucas v. People,
 
 Sec. 4) THE PRETENSE. 513 
 
 SECTION 4.— THE PRETENSE. 
 
 REX v. SPENCER. 
 
 (Worcester Assizes, 1828. 3 Car. & P. 420.) 
 
 False pretense. The indictment stated that the prisoner "did offer 
 and pay a certain paper writing, partly printed and partly written, 
 purporting to be the promissory note of Coleman, Smith & Morris, 
 for the payment of £1, as copartners and bankers trading under the 
 firm of C, S. & M., and did then and there unlawfully and falsely 
 pretend to one Peter Pollard that the same was a good and avail- 
 able note of the said C, S. & M., whereas, etc., it was not, at the 
 time it was so offered, a good and available note, as he, the said F. 
 S., well knew," etc. 
 
 It was proved that the prisoner gave the note to the prosecutor 
 in payment for meat; and another witness proved that he had told 
 the prisoner that the Leominster Bank (from which the note was 
 issued) had stopped payment. It was also shown, on the part of 
 the prosecution, that the banking house at Leominster was shut up, 
 and that Messrs. Coleman & Morris had become bankrupts; but it 
 appeared, on the cross-examination, that Mr. Smith, the third part- 
 • rier, had not become bankrupt. 
 
 Busby, for the prisoner, objected that, as one of the partners had 
 not become bankrupt, the note remained an available note as it re- 
 spected him; and non constat that, if presented to him, it would not 
 have been paid. 
 
 Gaselee, J. On this evidence the prisoner must be acquitted, be- 
 cause, as it appears that the note may ultimately be paid, I cannot 
 say that the prisoner was guilty of a fraud in passing it away. 1 
 
 Verdict — Not guilty. 
 
 75 111. App. 662 (1896) ; State v. Dickinson, 21 Mont. 595, 55 Pac. 539 (189S). 
 
 "The law does not make it an element of the offense of obtaining money 
 or property under false pretenses that it shall be obtained for the person 
 making the pretenses himself, or that it shall be intended to obtain it for an- 
 other." Elliott, J., in Musgrave v. State, 133 Ind. 307. 32 N. EL 885 (1892). 
 Accord: State v. Balliet, 63 Kan. 707, 66 Pac. 1005 (1901). 
 
 i "It is quite sufficient to sustain the charge of false pretenses if a person 
 knowingly presents the note of a bank which has stopped payment, as a 
 current note, though there may be a dividend afterwards, and a great portion 
 of the value paid." Crowder, J., in Reg. v. Evans. 8 Cox, C. C. 259 (1S59). 
 See, also, Commonwealth v. Stone, 4 Mete. (Mass.) 43 (1842) ; People v. Bry- 
 ant, 119 Oil. 295, 51 Pac. 960 (189S) ; State v. Bourne, S6 Minn. 432, 90 N. W. 
 110S (1902). 
 
 Mik.Ob.L.— 33
 
 514 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 REGINA v. LEE. 
 
 (Court for Crown Cases Reserved, 1863. Leigh & C. 309.) 
 
 Lewis Lee was indicted and tried for obtaining money by false 
 pretenses. 
 
 The prosecutor owed prisoner £16. 10s. for a heifer and some 
 hay, and on Friday, the 27th February, prisoner called on him in 
 the evening to settle the debt. Prosecutor put down two £10 notes, 
 but the prisoner said he could not give change, upon which it was 
 arranged that the prisoner should take one of the £10 notes, and 
 that the balance should be paid at the Honiton Market the next 
 day, which was done. Prisoner then said: "I am going to pay" 
 (or "I've got to pay") "my rent to the squire on the 1st of March; 
 but, as that is Sunday, I am going to pay it the next day. Will 
 you advance £10 for your father-in-law on the rent of the flax 
 field?" Prosecutor replied: "I don't wish to be mixed up with 
 my father-in-law's affairs; but you will see him on Monday or Tues- 
 day, when you can make a settlement of everything." Prisoner then 
 said : "Will you lend me £10 till Tuesday or Wednesday, and I 
 will give you a note of hand for it to make it all businesslike"? 
 Prosecutor then lent him £10, and prisoner gave the prosecutor a 
 formal promissory note for that amount. Prisoner did not say he 
 required the sum of £10 to make up his rent; but the prosecutor 
 stated that he believed that was what he wanted it for. The prose- 
 cutor in his evidence stated that, if he had not told him he was go- 
 ing to pay his rent, he should not have let him have the money. 1 
 
 The jury found the prisoner guilty, and stated their opinion that 
 the prisoner's statement that he was going to pay his rent on the 
 Monday was a false pretense, and that the money was advanced 
 on the credit of that false pretense. 
 
 Cockburn, C. J. We are all agreed that the case proved against 
 the prisoner will not warrant the conviction. There is no false pre- 
 tense of any existing fact. The pretense alleged is that he had got 
 to pay his rent, while in fact he had no intention of paying it, but 
 meant to appropriate the money to his own purposes. That is not 
 a false pretense of an existing fact. 
 
 Conviction quashed. 2 
 
 i Part of this case Is omitted. 
 
 » Accord: Rex v. Goodhall, Russ. & Ry. 401 (1821); Rex v. Douglass, 1 
 Moo. 402 (1830); Daltou v. State, 113 Ga. 1037, 39 S. E. 408 (1901).
 
 Sec. 4) THE PRETENSE. 515 
 
 REGINA v. MURPHY. 
 (Court for Crown Cases Reserved (Ireland) 1876. Ir. R. 10 O. L. 508.) 
 
 The prisoner, Mary Murphy, was convicted at the Commission for 
 the county of the city of Dublin in April, 1876, of obtaining goods 
 under false pretenses. 1 
 
 Evidence was given by several persons that the prisoner had writ- 
 ten letters to the witnesses inclosing half notes, and requesting that 
 goods should be forwarded to her; that the goods were sent, but 
 the prisoner did not send the second halves of the notes. Several 
 of the witnesses held the corresponding halves of the notes sent to 
 the others. The police constable who arrested the prisoner found 
 several half notes with her. 
 
 The case was left to the jury, who found the prisoner guilty. 
 
 James Murphy, Q. C, in support of the prosecution. In this 
 case the sending of the half notes was an intimation that the per- 
 son from whom the goods were sought was not to rely upon a mere 
 promise to pay. It was an intimation that the transaction was to be 
 a ready money one; and if the intimation of such a state of facts 
 was made with intent to defraud, and induced parties to part with their 
 goods, that is a false pretense. 
 
 [Morris, C. J. The only question is, did the sending of the half 
 notes imply that the prisoner had the corresponding halves? O'Brien, 
 J. You say, Mr. Murphy, that the mere act of sending the half notes 
 was a representation rhat the prisoner had the other halves?] Yes; 
 upon the authority of R. v. Giles, L,. & C. 205. 
 
 Morris, C. J., stated that the court were unanimously of opinion 
 that the conviction should be affirmed. 
 
 Conviction affirmed. 2 
 
 REGINA v. JONES. 
 
 (Court for Crown Cases Reserved, 1897. [1S9S] 1 Q. B. 119.) 
 
 The judgment of the court (Lord Russell, of Killowen, C. J., 
 Wright, Kennedy, Darling, and Channell, JJ.) was delivered by 
 
 Lord Russell of Killowen, C. J. This case was reserved for our 
 consideration by the Recorder of Worcester. The defendant was 
 indicted in two counts. In the first he was charged under the lar- 
 ceny act of 1861, with obtaining goods by false pretenses. 3 
 
 The facts were shortly these : The prosecutor kept an eating house, 
 and on June 20th the defendant went in and asked for some soup. 
 
 i Part of this case is omitted. 
 
 2 See, also, Rex v. Taylor. 65 J. P. 457 (1901). Cf. Cowan v. State, 41 
 Tex. Cr. R. 617, 56 S. W. 751 (1900). 
 s Part of this case is omitted.
 
 51G CHEATING AND FALSE PRETENSES. (Cll. 15 
 
 He was told that there was none ready, and thereupon asked for 
 some cold beef. He was told that there was none, but that he could 
 have some cold lamb and salad ; and this he accordingly ordered. 
 He then ordered half a pint of sherry, and went upstairs to have his 
 meal. While there he rang the bell, and ordered another half pint 
 of sherry. Subsequently he again rang the bell, and asked what there 
 was to pay, and, upon being told four shillings, said that he had no 
 means of paying, that he had no money, and had (as was the fact) 
 only a halfpenny upon him. Such was the state of the facts. All 
 that the defendant did was to go into an eating house, order food" 
 and refreshment, and eat, but not pay for it. No question was put to 
 him, and no inquiry was made of him, by the prosecutor as to his 
 means; nor was any statement made by him whether he had means 
 to pay. The question is whether this can be regarded as a state of 
 things in which a jury would be justified in finding that the defend- 
 ant obtained consumable articles by false pretenses. We do not de- 
 sire to say anything which can weaken the authority of the decisions 
 which say that there can be a false pretense by conduct; for example, 
 the case of Rex v. Barnard, 7 C. & P. 784, where a cap and gown 
 were used by a man who had no right to wear them, in order to convey 
 the notion that he was a member of the University. Nor do we in any 
 way dispute the authority of another class of cases ; that is, where 
 a man gives a check on a bank where he either has no account or 
 has not sufficient means to meet the check, and must have known 
 that he had not sufficient means. In the present case the defendant 
 did nothing beyond what I have already stated. No inquiry was 
 made of him, and no statement was made by him. Under the cir- 
 cumstances, we do not think that the case could properly be left to 
 the jury on the first count. There was no evidence that the defendant 
 had obtained these articles by false pretenses. 
 Conviction quashed on first count. 2 
 
 REGINA v. BRYAN. 
 (Court for Crown Casos Reserved, 1857. Dears. & P>. 265.) 
 
 The following case was reserved and stated for the consideration 
 and decision of the Court of Criminal Appeal by the Recorder of 
 London. 
 
 At a n of Gaol Delivery, holden for the jurisdiction of the 
 
 Central Criminal Court, on the 2d day of February, A. D. L857, 
 John Bryan was tried before me for obtaining money by false pre- 
 tenses. 
 
 2 Tli'' conviction on the second count, framed in section 13 of the debtors' 
 of L869, v, .is a dinned.
 
 See. 4) - THE PRETENSE. 517 
 
 There were several false pretenses charged in the different counts 
 of the indictment, to which, as he was not found guilty of them by 
 the jury, it is not necessary to refer. But the following pretenses were, 
 among others, charged : ' That certain spoons produced by the prison- 
 er were "of the best quality/ Hha.t they were equal to Elkington's A 
 (meaning spoons and forks made by Messrs. Elkington, and stamped 
 by them with the letter A)^' that the foundation was of the best ma- 
 terial, and that they had as muc h silver upon theni-as-£lk4agton's A. 
 The prosecutors were pawnbrokers, and the false pretenses were 
 made use of by the prisoner for the purpose of procuring advances 
 of money on the spoons in question offered by the prisoner by way 
 of pledge, and he thereby obtained the moneys mentioned in the in- 
 dictment by way of such advances. The goods were of inferior quali- 
 ty to that represented by the prisoner, and the prosecutors said that, 
 had they known the real quality, they would not have advanced money 
 upon the goods at any price. They moreover admitted that it was 
 the declaration of the prisoner as to the quality of the goods, and 
 nothing else, which induced them to make the said advances. The 
 moneys advanced exceeded the value of the spoons. The jury found 
 the prisoner guilty of fraudulently representing that the goods had 
 as much silver on them as Elkington's A and that the foundations 
 were of the best material, knowing that to be untrue, and that in 
 consequence of that he obtained the moneys mentioned in the indict- 
 ment. The prisoner's counsel claimed to have the verdict entered 
 as a verdict of not guilty, which was resisted by the counsel for the 
 prosecution; and, entertaining doubts upon the question, I directed 
 a verdict of guilty to be entered, in order that the judgment of the 
 Court for the Consideration of Crown Cases might be taken in the 
 matter; and the foregoing is the case on which that judgment is 
 requested. Russell Gurney. 
 
 B. C. Robinson, for the prisoner. This is simply a misrepresenta- 
 tion of quality, and is not within the statute. A representation that 
 a thing is in specie that which it is not has been held to be within 
 the statute; but there is no authority to show that a mere misrepre- 
 sentation of the quality of an article is. 
 
 Lord Campbell, C. J. With regard to quality it has been said that 
 it is lawful to lie. The seller exaggerates, and the buyer depreciates 
 the quality. The only specific fact here is that the spoons were equal 
 to Elkington's A. 
 
 B. C. Robinson. All the representations are mere vaunting or 
 puffing of the goods. I cannot contend that the prisoner did not 
 tell a willful lie. No doubt he did. But the articles he proposed to 
 pledge were plated spoons; and they were plated spoons, although 
 of an inferior quality to that which he represented them to be. In 
 Regina v. Roebuck, D. & B. 24, the chain was represented to be 
 silver, when it was not silver, but base metal. In Regina v. Abbott, 
 1 Den. C. C. 273, the cheese was not of the kind it was represented
 
 51S CHEATING AND FALSE PRETENSES. (ph. 15 
 
 to be. The bulk of the cheese was said to be the same as the taster, 
 when it was not. To make this case analogous to those, the repre- 
 sentation must have been that the spoons were actually Elkington's 
 
 A, and not equal to Elkington's A. 
 
 Pollock, C. B. Would it be indictable to say that a cheese came 
 from a particular dairy, when it did not? 
 
 B. C. Robinson. That would be a much stronger case than this, 
 and would resemble Regina v. Abbott ; but if this conviction is 
 good, a man selling beer as treble X, when it was double X, would 
 be indictable, and who is to decide between buyer and seller in such 
 cases? 
 
 Coleridge, J. If mere puffing by the seller would be indictable, 
 depreciation by the buyer would be equally so. "It is nought, it is 
 nought, saith the buyer ; but when he goeth his way he boasteth." 
 
 B. C. Robinson. If the representation had been that the spoons 
 were in fact Elkington's A, this case would have resembled Regina 
 v. Dundas, 6 Cox, C. C. 380. where a spurious blacking was sold as 
 blacking of Everett's manufacture, and Regina v. Ball, Car. & M. 
 249, in which articles were represented to be silver which were not 
 silver. In both those cases the misrepresentation was as to the 
 species, not as to the mere quality of the article. If such representa- 
 tions were to be held within the statute, trade could not be carried on 
 with safety. The jury would in each case be made the judges of 
 the offense ; quality being in most cases a matter of opinion only. 
 
 G. Francis, for the crown. This is in fact a misrepresentation of 
 quantitv, and substantially the same as Regina v. Sherwood, D. & 
 
 B. 251. 
 
 Lord Campbell, C. J. Of the quantity of the silver? 
 
 G. Francis. Yes; Elkington's A is an article of ascertained manu- 
 facture, and by representing the spoons to be equal to Elkington's 
 A the prisoner represented that they were covered with the same 
 quantity of silver as Elkington's spoons would be covered with. The 
 money was, therefore, obtained by a false representation that there 
 was a greater weight of silver than there really was, and therefore 
 there was a false pretense of an existing fact, within the statute. 
 Secondly, if the representation was of quality merely, it is within 
 the statute. The money was obtained by the representation, and the 
 jury have found the representation was made with intent to defraud. 
 
 [;. C. Robinson, in reply. The articles were of the species repre- 
 sented. 
 
 POLLOCK, C. B. Suppose a publican represents that his beer is 
 not really Guinness' beer, but equal to Guinness'? 
 
 Lord CAMPBELL, C. J. The goods were the goods bargained for, 
 but of inferior quality. 
 
 BRAMWSLL, B. What would you say to the sale of a paste pin for 
 a diamond pin ?
 
 Sec. 4) THE PRETENSE. ol9 
 
 B. C. Robinson. There the species would not be the same ; but 
 it would not do if the representation was that the diamond was "of 
 the first water," when it was not. 
 
 ErlE, J. I am also of opinion that this conviction cannot be sus- 
 tained, not on the ground that the falsehood took place in the course 
 of a contract of sale or pawning, but on the ground that the false- 
 hood is not of that description which was intended by the Legislature. 
 It is a misrepresentation of what is more a matter of opinion than 
 a definite matter of fact. Whether these spoons in their manufac- 
 ture, and in the electrotype, were equal to Elkington's A, or not, 
 cannot be, as far as I know, decidedly affirmed or denied in the same 
 way as a past fact can be affirmed or denied ; but it is in the nature of 
 a matter of opinion. 
 
 Now, looking at all the cases that have been decided upon the 
 statute, those that have been the subject of the greatest comment 
 appear to me to fall within the principle relating to putting off 
 counterfeit articles in sales where the substance of the contract is 
 falsely represented, and by reason thereof the money is obtained. In 
 Regina v. Roebuck the thing sold was not the thing which it was 
 sold for — a silver chain. Here silver, though in form an adjective, 
 is in reality the substance of the contract. The silversmith had no 
 intention of buying a chain ; but he intended to buy silver, and what 
 was represented to him to be silver was not silver, though it was 
 a chain. The property in the chain passed, and the money was 
 paid ; still clearly there was a false pretense as to the silver. And 
 so in the case of Regina v. Ball. So, also, in the case of Regina v. 
 Abbott, the substance of the contract was not a mere cheese, a 
 thing in the shape of a cheese, of any quality; but the substance of 
 the purchase was a Chedder cheese (or some other species of cheese), 
 and the taster which a fraudulent person had inserted in the cheese 
 sold was of that species, and it was sold with a false affirmation that 
 the article was Chedder cheese, which would be a totally different 
 article from the Gloucester cheese, or whatever the substance was 
 said to be of the cheese that was sold. In the case of Everett's 
 blacking it is the same thing. We have it in evidence in that case 
 that a new blacking, salable in the neighborhood under the name of 
 Everett's blacking, was a vendible article. The prosecutor purchased 
 it for the purpose of retailing it, and unless it had been Everett's 
 blacking he would have had no demand for it. The question wheth- 
 er it was Everett's blacking was as to the substance of the article. 
 It was not a blacking he wanted. It was Everett's. And, though 
 it is in form an adjective, it is in reality the substance of the bargain. 
 These are cases of putting off counterfeit articles. As to the case 
 of Regina v. Kenrick, 5 Q. B. 49, although in the case of Rex v. 
 Pywell, 1 Starkie, 402, it had been held not indictable to praise the 
 quality of a horse, knowing him not to be worthy of the praise put 
 upon him, yet in Regina v. Kenrick, as far as I understand it, and
 
 520 CHEATING AND FALSE PRETENSES. (Cll. 15 
 
 I was counsel for the man, the fact which brought the case within 
 the definition of the crime was the fact that Kenrick averred that 
 the horses had been the property of a lady deceased, were now the 
 property of her sister, had never been the property of a horse dealer, 
 and were quiet and proper for a lady to drive. The purchaser want- 
 ed those horses for a woman of his family. The substance of the 
 contract, in his mind, was that they were the property of a lady who 
 had driven the horses, and it was a false assertion of a definite exist- 
 ing fact to say, "They are the property of her sister now," when 
 they were in fact the property of a horse dealer, and had run away 
 and produced a fatal accident. The case of Regina v. Kenrick was 
 not the warranting a horse sound, as in the case of Rex v. Pywell ; 
 but it was the affirming a false fact, which the party knew to be false, 
 and on that ground the conviction proceeded. It seems to me that 
 these cases, which have given rise to a great deal of observation, fail 
 to bear out the principle contended for by the prosecution. No 
 doubt it is difficult to draw the line between the substance of the con- 
 tract and the praise of an article in respect of a matter of opinion. 
 Still it must be done, and the present case appears to me not to 
 support a conviction upon the ground that there is no affirmation of 
 a definite triable fact in saying the goods were equal to Elkington's 
 A, but the affirmation is of what is mere matter of opinion, and falls 
 within the category of untrue praise in the course of a contract of 
 sale, where the vendee has in substance the article contracted for, 
 namely, plated spoons. 1 
 
 Willes, J. My opinion is of little value after those which have 
 been expressed; but, such as my opinion is, I am bound to pronounce 
 it, and I do so with the less diffidence because it was the considered 
 opinion of the late Chief Justice Jervis, than whom no man who ever 
 
 lived was more competent to form an opinion upon the subject. 1^ 
 
 am of opinion that the conviction was right, and that it ought to be 
 affirmed. It appears to me that a great number of observations have 
 been brought to bear upon the construction of the statute which would 
 not have been attended to if the words of the statute had been looked 
 at, and I cannot help thinking that in many of the cases to which ref- 
 erence might be made, and they are very numerous, upon this sub- 
 ject, the judgments would have commanded more attention in after 
 times if the words of the statute had been attended to, and those who 
 delivered those judgments had not permitted themselves to consider, 
 instead, whether a particular view would or would not be conven- 
 ient to trade, either in its present state or in the state to which it 
 might be reduced by a proper administration of the law. 1 think 
 that the words of the statute should be implicitly followed, and the 
 Legislature obeyed according to the terms in which it has expr< 
 
 i Pari "f this opinion is omitted. Campbell, 0. J.i Oockburn, C. J., Pollock, 
 i ■. b . Coleridge, Cresawell, Crompton, and Crowder, JJ., and Watson and 
 Channell, BB., delivered concurring opinion*
 
 Sec. 4) THE PRETENSE. 521 
 
 its will in St. 7 & 8 Geo. IV, c. 29, § 53. I am looking to the words of 
 that section, and I am unable to bring myself to think that the Legis- 
 lature was at all dealing with anything in the nature of a distinction 
 between the case of property fraudulently obtained by a fraudulent- 
 ly obtained contract and goods obtained without any contract, but 
 fraudulently obtained. I cannot help thinking that, if the atten- 
 tion of the framers of the statute had been directed to any such pos- 
 sible operation of it, they would, in the spirit in which the section 
 is framed, have enacted, in terms even more clear than those of the 
 fifty-third section, that that which is obtained by fraud shall not 
 benefit the fraudulent person, and that the interposition of a con- 
 tract, also obtained by fraud, ought not to make any difference in 
 favor of the cheat. The section commences with the recital that "a 
 failure of justice frequently arises from the subtle distinction be- 
 tween larceny and fraud." That is the recital, and I had on my mind 
 an impression that the recital of a statute may have the effect of en- 
 larging, but not of restraining, the operation of the subsequent enact- 
 ment. The enacting part of the section is: "If any person shall by 
 any false pretense obtain from any other person any chattel, money, 
 or valuable security with intent to cheat or defraud any person of 
 the same, every such offender shall be guilty of a misdemeanor." 
 And it appears to me that the only proper test to apply to any case 
 is whether it was a false pretense by which the property was obtained, 
 and whether it was obtained with the intention to cheat and defraud 
 the person from whom it was obtained. 
 
 Now in this case it should seem that there was a false pretense. 
 There was a pretense that the goods had as much silver upon them 
 as Elkington's A, and there was also the pretense that the founda- 
 tions were of the best material. If I could bring myself to take • 
 the view, which my Brother ErlE has taken, that this was mere 
 matter of opinion, and not matter of fact, which could be ascertained 
 by inspection or calculation, possibly I might take the same view 
 of the case; but it appears to me that, on the face of the case, it 
 should seem that Elkington's A must have been, for practical pur- 
 poses, a fixed quantity The quantity of silver on it must have been 
 fixed, and the proper material, the best material for the foundation 
 of such plated articles, must have been a well-known quality in the 
 trade, because it appears that the prisoner made a statement with 
 respect to the quantity of silver, and the quality of the foundation, 
 with the intent to defraud. It appears that the persons who made 
 the advances were thereby defrauded, and thereby induced to make the 
 advances, and the jury have found that the statements were known 
 by the prisoner to be untrue, and that in consequence of those state- 
 ments he obtained the money mentioned in the indictment. It ap- 
 pears to me that for all practical purposes that ought to be taken 
 to be a sufficient fact, coming within the region of assertion and cal- 
 culation, and not mere opinion, and that it should be considered as a
 
 522 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 false pretense. Well, then, the statute says— "obtain from any other 
 person any chattel, money, or valuable security." It is found in 
 this case that the money was obtained. If the matter was a simple 
 commendation of the goods, without any specific falsehood as to what 
 they were — if it was entirely a case of one person dealing with an- 
 other in the way of business, who might expect to pay the price of 
 the articles which were offered for the purpose of pledge or sale, 
 and knew what they were — I apprehend it would have been easily 
 disposed of by the jury, who were to pass an opinion upon the sub- 
 ject, acting as persons of common sense and knowledge of the world, 
 and abstaining from coming to any such conclusion as that praise of 
 that kind should have the effect of making the party resorting to 
 it guilty of obtaining money on a false pretense. I say nothing on the 
 effect of a simple exaggeration, except that it appears to me it would 
 be a question for the jury in each case whether the matter was such 
 ordinary praise of the goods (dolus bonus) as that a person ought 
 not to be taken in by it, or whether it was a misrepresentation of a 
 specific fact material to the contract and intended to defraud, and 
 did defraud, and by which the money in question was obtained. Well, 
 then there is the latter part of the section — "with intention to cheat 
 and defraud any person of the same." It must be with the intent to 
 cheat and defraud the person of the same. I am unable to bring 
 my mind to any anxiety to protect persons who make false pretenses 
 "with intent to cheat and defraud." It was stated in the evidence 
 by the prosecutor, "I would have advanced nothing but for the mis- 
 representation," and it was found by the jury that the money was ob- 
 tained by the misrepresentation. But it is said that the effect of es- 
 tablishing such a rule as that for which I contend would be to in- 
 terfere with trade. No doubt it would, and I think ought to, prevent 
 trade being carried on in the way in which it is said to be carried 
 on. I cannot help expressing my regret if trade is carried on, and I do 
 not believe it is generally carried on, by persons making false pre- 
 tenses with the intention to cheat or defraud persons of their money.. 
 I am far from wishing to interfere with the rule as to simple com- 
 mendation or praise of the articles which are sold, on the one hand, 
 or to fair cheapening, on the other. Those are things persons may 
 expect to meet with in the ordinary and usual course of trade. But 
 1 cannot help thinking that people ought to be protected from any 
 such . those I have referred to being resorted to for the purpose 
 
 and with intent to cheat or defraud purchasers of their money or 
 tradesmen of their goods. If the result of it would be to multiply 
 prosecutions, thai musl be because we live in an age in which fraud 
 is multiplied to a great extent, and, amongst others, in this form. 
 I agree in what the late Chief Jut tice Jervis said as peculiarly applica- 
 ble to such a supposed state, though I hope not to ordinary trade- 
 that if there be such a commerce as requires to be protected by the 
 statute being limited in the mode uggested, it ought to be made honest
 
 Sec. 4) THE PRETENSE. 523 
 
 and conform to the law, and not the law bent for the purpose of 
 allowing fraudulent commerce to go on. I cannot help thinking, 
 therefore, upon the plain construction of St. 7 & 8 Geo. IV, c. 20, 
 § 53, that the prisoner in this case, having fraudulently represented 
 that there was a greater amount of silver in the articles pledged and 
 that there was a superior foundation of metal, that being untrue to 
 his knowledge, for the purpose of defrauding the prosecutors of 
 their money, which he accordingly obtained, he was therefore indict- 
 able, and that the conviction ought to be affirmed. 2 
 Conviction quashed.* 
 
 REGINA v. ARDLEY. 
 
 (Court for Crown Cases Reserved, 1871. L. R. 1 C. C. 301.) 
 
 Case stated by the Chairman of Quarter Sessions for the County 
 Palatine of Durham. 
 
 Indictment for obtaining £5 and an Albert chain of the value of 
 7s. 6d. by false pretenses. 
 
 The material facts were as follows : 
 
 The prisoner went into the shop of the prosecutor, who was a 
 watchmaker and jeweler, and stated that he was a draper, and was 
 £5 short of the money required to make up a bill, and asked the 
 prosecutor to buy an Albert chain which he (the prisoner) was then 
 wearing. The prisoner said: "It is 15-carat fine gold, and you will 
 see it stamped on every link. It was made for me, and I paid nine 
 guineas for it. The maker told me it was worth £5 to sell as old 
 gold." The prosecutor bought the chain, relying, as he said, on the 
 prisoner's statement, but also examining the chain, and paid £5 
 for it, and gave also to the prisoner in part payment a gold Albert 
 chain valued at 7s. 6d. The prisoner's chain was marked "15 ct." 
 on every link, and in a very short time afterwards he (the prisoner) 
 was apprehended, and then wore another Albert chain of a char- 
 acter similar to that sold to the prosecutor; this also being mark- 
 ed "15 ct." on every link. It was proved that "15 ct." was a hall- 
 mark used in certain towns in England, and placed on articles made 
 of gold of that quality, and that chains when assayed are generally 
 found to be one grain less than the mark, exceptionally two grains. 
 
 2 Bramwell, B., delivered a concurring opinion. 
 
 3 See, also, People v. Jacobs, 35 Mich. 36 (1876) ; State v. Paul, 69 Me. 215 
 (1879) ; People v. Morphy, 100 Cal. 84. 34 Pac. 623 (1S93). 
 
 "It is not the law of this state, as we understand it. that a man may be 
 guilty of larceny by false pretense because be has not title to either the real 
 estate or personal property which he undertakes to sell, or says he owns 
 provided he vests good title in the purchaser at the time he pays the con- 
 sideration for the property." Parker, C. J., in People v. Wheeler, 169 N. Y 
 493, 62 N. E. 572 (1902).
 
 524 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 The chain bought by the prosecutor was assayed, and found to be 
 of a quality a trifle better than 6-carat gold, and of the value in 
 gold of £2. 2s. 9d. It was proved that, had it been 15-carat gold, 
 it would have been worth £5. 10s. Adding the charge for what is 
 called "fashion" or "make," and the price of a locket attached, the 
 chain bought by the prosecutor would be sold for £3. 0s. 3d.; but, 
 had it been 15-carat, it would have been sold for £9. There were 
 no drapery goods or anything connected with such trade found on 
 the prisoner; but, when arrested, he had in his possession a license 
 to sell plate, two watches, two white-metal watch guards, and the 
 chain obtained from the prosecutor. 
 
 The chairman was asked by the counsel for the prisoner to stop 
 the case, on the authority of Reg. v. Bryan, Dears. & B. C. C. 265, 
 but declined to do so, and left the case to the jury, who found the 
 prisoner guilty, and said they found that the prisoner knew that 
 he was falsely representing the quality of the chain as 15-carat gold. 
 
 Bovill, C. J. 1 The question which we have to consider in this 
 case is whether there was evidence to go to the jury on which they 
 could find the prisoner guilty of obtaining money under false pre- 
 tenses. I think there clearly was evidence, and that it would have 
 been quite impossible for the learned chairman with any propriety 
 to stop the case. There were, in addition to the representations 
 as to the quality of the gold, distinct statements of matters of fact, 
 and there was evidence of the falsehoods of these statements. The 
 prisoner stated that he was a draper, and was £5 short of the mon- 
 ey required to make up a bill. But there were no drapery goods, 
 nor anything connected with such trade, found on the prisoner; 
 but, when arrested, he had in his possession a license to sell plate, 
 two watches, two white-metal watch guards, and the chain obtain- 
 ed from the prisoner, and he wore another Albert chain of a char- 
 acter similar to that sold to the prosecutor, this also being marked 
 l.Vcarat gold on every link. Looking, therefore, at the whole of 
 the evidence, there is sufficient ground on which the finding of the 
 jury may be supported and the conviction sustained. 
 
 But the jury have further found that the prisoner, when he rep- 
 resented the chain to be 15-carat gold, knew this representation to 
 be false. And tbe question whether the conviction can lie support- 
 ed upon that finding alone stands upon a somewhat different foot- 
 ing. The cases have drawn nice distinctions between matters of 
 fact and matters of opinion, statements of specific facts and mere 
 erated praise. It is difficult for us, sitting here as a court, 
 to nine conclusively what is fact and what is opinion, what is 
 
 a specific statement and what exaggerated praise. These arc ques- 
 tions for the jury to divide. And the prisoner has this additional 
 
 i Arguments <>r counsel and concurring opinions of Wlllea and Byles, JJ., 
 inn] Channel! and Plgott, BB., are omitted.
 
 Sec. 4) THE PRETENSE. 52." 
 
 security, that the jury have to consider not only whether the state- 
 ments made are statements of fact, but also whether they are made 
 with the intention to defraud. 
 
 The case which has been most pressed upon us is Reg. v. Eryan, 
 Dears. & B. C. C. 2G5. The representation in that case was that 
 certain plated spoons were "equal to Elkington's A." Prima facie 
 that representation would seem to be a mere matter of opinion, and 
 the court held that it was not sufficient to support the conviction. But 
 many of the judges expressed the opinion that there might well be 
 cases in which misrepresentations, though as to quality, would be 
 within the statute. Cockburn, C. J., says: "If the person had rep- 
 resented these articles as being of Elkington's manufacture, when 
 in point of fact they were not, and he knew it, that would be an en- 
 tirely different thing." Pollock, C. B., says: "I think if a trades- 
 man or a merchant were to concoct an article of merchandise ex- 
 pressly for the purpose of deceit, and were to sell it as and for some- 
 thing very different, even in quality, from what it was, the statute 
 would apply." It is plain that these learned judges considered that 
 a specific representation of quality, if known to be false, would be 
 within the statute. Coleridge, J., expressly concurs in the observa- 
 tions of Pollock, C. B. Erie, J., at the close of his judgment, says : 
 "No doubt it is difficult to draw the line between the substance of 
 the contract and the praise of an article in respect of a matter of 
 opinion. Still it must be done, and the present case appears to me 
 not to support a conviction, upon the ground that there is no af- 
 firmation of a definite triable fact in saying the goods were equal 
 to Elkington's A, but the affirmation is of what is mere matter of 
 opinion, and falls within the category of untrue praise in the course 
 of a contract of sale, where the vendor has in substance the article 
 contracted for, namely, plated spoons." Crompton, J., also consider- 
 ed that the statute applies "when the thing sold is of an entirely 
 different description from what it is represented to be." Willes, 
 J., who dissented from the judgment of the court, goes the whole 
 length of saying that a representation as to quality, if known to be 
 false, is enough to support a conviction. And Bramwell, B., leans 
 to the same opinion. 
 
 Applying these observations to the present case, the statement 
 here made is not in form an expression of opinion or mere praise. 
 It is a distinct statement, accompanied by other circumstances, that 
 the chain was 15-carat gold. That statement was untrue, was known 
 to be untrue, and was made with intent to defraud. How does that 
 differ from the case of a man who makes a chain of one material 
 and fraudulently represents it to be of another? Therefore, wheth- 
 er we look at the whole of the evidence, or only at that which goes 
 to show the quality of the chain, the conviction is good. Th e cas e 
 differs from Reg. v. Bryan, Dears. & B. C. C. 265, because here
 
 526 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 there was a statement as to a specific fact within the actual knowl- 
 edge of the prisoner, namely, the proportion of pure gold in the 
 chain. 
 
 Conviction affirmed. 8 
 
 SECTION 5.— EFFECTIVENESS OF THE PRETENSE. 
 
 REGINA v. ENGLISH. 
 
 (Kent Assizes, 1872. 12 Cox, C C. 171.) 
 
 False pretenses. 3 The prosecutor was a brickmaker, and in con- 
 sequence of an advertisement issued by the defendant went down 
 to see the field, and was shown over it and inspected the earth and 
 soil of the field, and also examined a clump of bricks upon the 
 field, said to have been made out of the earth and soil of the 
 field; but evidence was given of the specific false pretenses alleged, 
 and he swore he was induced by means of these representations, 
 and in the belief that they were true, to enter into the agree- 
 ment. And evidence was also given to show that they were to the 
 knowledge of the defendant false, and intended to deceive and defraud. 
 It was further sworn by the prosecutor and his witnesses that the 
 bricks shown to him as made from the soil of the field had in fact 
 been made from other earth, as known to the defendant. 
 
 The case had been previously tried before Bramwell, B., when 
 the jury were discharged. 
 
 At the close of the case — 
 
 Cockburn, C. J. (Bramwell, B., having previously directed the 
 jury in the same way). There is a case for the jury on the counts 
 which charge that the prosecutor, by means of the false pretenses, 
 was induced to enter into the agreement. The jury must be satis- 
 fied, however, not only that the pretenses were false and fraudu- 
 lent, but that the prosecutor was induced by means of them to enter 
 into the agreement.* The prosecutor, it is true, was a brickmak- 
 er, and examined the soil of the field; but the charge is that false 
 and fraudulent representations were made to him of specific mat- 
 ters of fact which would be material in influencing his judgment, 
 and, if that were so, the indictment would be sustained. 
 
 The jury, after a long consideration, said that they found the 
 
 Bee, aleb, Reg. v. Roebuck, Prnrs. & B. 21 (1865); Hep. v. Ross Roll, C. O. 
 •jus (1800); state v. Tomlin, 28 N. J. Law, 18 (1860); State v. Burke, 108 
 x. (). 750, VI s. M 1000 (1891). 
 a The Indictmenl is omitted. 
 
 « See Bea v. Dale, 7 G. & i\ ::.vj (\X\i\); Rej;. v. Mills, 7 Cox, C. C 2«3 
 0857).
 
 Sec. 5) EFFECTIVENESS OF THE PKETENSE. 527 
 
 pretenses false and fraudulent, but that the prosecutor was not in- 
 fluenced solely by means of the pretenses. 
 
 Cockburn, C. J. That finding is not sufficient. Was he partly 
 influenced by them? that is, did they materially affect his judgment? 
 
 The jury said they did. They turned the balance, so to speak, 
 in his mind. 
 
 Cockburn, C. J. Then that is sufficient to sustain the indict- 
 ment, and a verdict must be entered of 
 
 Guilty. 
 
 PEOPLE v. BIRD. 
 (Supreme Court of Michigan, 1901. 126 Mich. 631, 86 N. W. 127.) 
 
 Theodore Bird, Theodore Williams, Jay Lawrence, and Charles Ray 
 were convicted under an information charging conspiracy to defraud 
 and false pretenses. 1 
 
 The second count is one for false pretenses, and sets forth the spe- 
 cific methods resorted to by the respondents to accomplish their object. 
 The methods, in substance, were that the respondents represented to 
 said Curtis that they were the apostles of Christ; that said Curtis and 
 they were to be the judges of the people in that part of the country; 
 that the son of Curtis was to be Christ in his second coming; that 
 they (respondents) were sent by the Lord to tell Curtis these things; 
 and that the Lord required of him to pay to them $300, to make a home 
 for them. The respondents were convicted. 
 
 Grant, J. It is urged that the pretenses were so absurd and irra- 
 tional that they do not come within the statute. This question has 
 been adjudicated against the contention of the respondents in People 
 v. Summers, 115 Mich. 537, 73 N. W. 818, where many authorities 
 upon the point are cited. Mr. Curtis, from whom the respondents ob- 
 tained the money, was evidently an ignorant and weak man. It ap- 
 pears from his own testimony and from other evidence that his mind is 
 unbalanced upon the subject of religion. The statute is designed for 
 the protection of such, and for the punishment of those who will take 
 advantage of their weakness to perpetrate fraud. 2 \ 
 
 It is next urged that, though the respondents held peculiar views, 
 yet that they were honest in their belief. We agree with counsel that 
 their views were peculiar. Whether they were honest in them was a 
 question for the jury. 3 The court, in very clear language, instructed 
 
 i Part of this case is omitted. 
 
 2 Accord: Johnson v. State, 36 Ark. 242 (18S0) ; Miller v. People, 22 Colo. 
 530, 45 Pac. 408 (1896) ; Cowen v. People. 14 111. 348 (1853) ; Lefler v. State, 153 
 Ind. 82, 54 N. E. 439, 45 L. R. A. 424, 74 Am. St. Rep. 300 (1899) ; State v. 
 Fooks, 65 Iowa. 196, 21 N. W. 561 (18S4) ; Smith v. State, 55 Miss. 513 
 Q87S) ; Oxx v. State, 59 N. J. Law, 99, 35 Atl. 646 (1896) ; People v. Cole. 65 
 Hun. 624. 20 N. Y. Supp. 505 (1892); Watson v. State, 16 Lea (Tenn.) 604 
 (1886). 
 
 « Compare, Penny v. Hanson, 16 Cox, C. C. 173.
 
 528 CHEATING AND FALSE PRETENSES. (Cll. 15 
 
 the jury that, if they were honest in their religious belief, no matter 
 how misguided they might be, they could not be convicted. The evi- 
 dence is that Bird and Williams were very active in preaching their 
 doctrines to Mr. Curtis, that it was his duty to give them money, and 
 that the Lord had so directed. We think, also, that there was evi- 
 dence from which the jury might reasonably infer that respondents 
 Lawrence and Ray were parties to the fraud, although they did not 
 make direct representations to obtain the money. 
 
 We find no error in the record, and the conviction is affirmed. 
 
 The other justices concurred. 
 
 REGINA v. GARDNER. 
 (Court for Crown Cases Reserved, 1856. Dears. & B. 41.) 
 
 The evidence on the part of the prosecution, as far as is material 
 for the purpose of this case, was that on the 13th day of November 
 last the defendant, wearing the dress of a naval officer, engaged a 
 lodging of Ellen Henrietta Brunsden (the prosecutrix) at the rate 
 of 10 shillings per week; that on the 17th day of November the de- 
 fendant expressed himself to prosecutrix as being comfortable, and 
 that he should be likely to remain some time, and stated that he was 
 paymaster of the Duke of Wellington, and his name was De Lancy; 
 that the defendant continued a lodger till the 25th of November, and 
 then expressed a wish to become a boarder, and an arrangement was 
 accordingly entered into that he should become a boarder at a guinea 
 a week; that the prosecutrix supplied the defendant with board, con- 
 sisting of cooked meat, tea, sugar, bread, butter, cheese, and beer, for 
 the six days following, but the defendant did not pay her anything for 
 the lodging or board. 1 
 
 Ribton, for the prisoner. The conviction was wrong. It is im- 
 portant to observe the dates. When the false statement was made, 
 neither money, chattel, nor valuable security was obtained by it; and 
 obtaining lodging by a false pretense is not an offense within the stat- 
 ute. On the 25th November, when the contract to board was obtained, 
 no false pretense was made. 
 
 COLERIDGE, J- Would it not be a question for the jury whether 
 there was not a continuing false pretense? 
 
 Ribton. T<> obtain a contract by a false pretense is not within the 
 act. It is not obtaining goods. Here, if anything besides the lodging 
 was obtained by the false pretense, it was not food, but simply a new 
 contract to supply board, and that would not be within the statute. 
 The board mighl have been supplied, not in consequence of the false 
 pretense made win n the contract for the lodging was obtained, but in 
 
 i Pari of tins case is omitted.
 
 Sec. 5) EFFECTIVENESS OF THE PRETENSE. 529 
 
 consequence of the prisoner's manners and conduct after that time, 
 and whilst he was a lodger. 
 
 Coleridge, J. Yes; but your point is that there was no evidence 
 to go to the jury, even supposing the interval between the false pre- 
 tense and the contract had only been an hour. 
 
 Ribton. It is quite clear that to obtain lodging alone would not be 
 within the statute. Here the contract is for board and lodging united, 
 and it is doubtful whether in any case obtaining board and lodging 
 would be within the statute. It would always be difficult to separate 
 the two, so as to show that the articles of food were obtained by means 
 of the false pretense ; but here, at all events, the evidence fails alto- 
 gether to connect the obtaining of the food with the false pretense. 
 
 Horn, for the crown. It is indisputable law that the intervention 
 of a contract is no answer to a charge of obtaining goods by false 
 pretenses, if the contract be part of the fraud. Here the prisoner has 
 obtained goods by means of his false pretenses, and the fact that the 
 contract was to pay for the board and lodging together does not make 
 it less an obtaining of goods. 
 
 Jervis, C. J. The difficulty in the case of contracts is, where the 
 party deceived gets not the consideration which he expects, but some- 
 thing like it. 
 
 Horn. In this case the false pretense is clearly proved. It was a 
 continuing pretense, and the prosecutrix, acting upon it, was eventually 
 induced to supply the prisoner with board, as well as lodging. It is 
 objected that lodging is not within the statute. Land is not within 
 the statute ; but suppose, by a false pretense, I get an estate and a purse 
 of gold? The articles of food which the prisoner obtained were chat- 
 tels within the meaning of the statute; and the fact that the prisoner 
 gained lodging as well as board cannot make any difference. The 
 question whether the food was obtained by the false pretense was for 
 the jury, and they have found that it was. 
 
 Ribton replied. 
 
 Jervis, C. J. In this case, which was argued before us on Saturday 
 last, the court took time to consider, principally with a view of first 
 taking into consideration the cases of Regina v Roebuck and Regina 
 v. Burgon, which have just been disposed of. It was an indictment 
 for obtaining goods under false pretenses, the circumstances being 
 that the prisoner represented himself to be the paymaster of the Duke 
 of Wellington, of the name of De Lancy, upon which he made with 
 the prosecutrix a contract for board and lodging at the rate of one 
 guinea a week, and he was lodged and fed as the result of the con- 
 tract, in consequence of the engagement so entered into upon that 
 which was found to be a false pretense; and the question which 
 was submitted to us was whether it was a false pretense within 
 the statute, or, rather, whether the conviction was right? That we 
 have considered, and on consideration we are of opinion that the con- 
 viction was not right, because we think that the supply of articles, as 
 Mik.Cf.L.— 34
 
 530 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 it was said, upon the contract made by reason of the false pretense, 
 was too remotely the result of the false pretense in this particular in- 
 stance to become the subject of an indictment for obtaining those 
 specified goods by false pretenses. We therefore think the convic- 
 tion should be reversed. 
 Conviction quashed 2 . 
 
 REGINA v. BUTTON. 
 (Court for Crown Cases Reserved, 1900. [1900] 2 Q. B. 597.) 
 
 Case stated by the Recorder of Lincoln. 
 
 The prisoner was charged with attempting to obtain goods by false 
 pretenses. 
 
 On August 26, 1899, there were athletic sports at Lincoln, for which 
 prizes were given. Among the contests were a 120-yard race and a 
 440-yard race, in respect of each of which a prize was given of the 
 value of 10 guineas. 
 
 Among the names sent in for these two contests was the name of 
 "Sims, C, Thames Ironworks A. C," and two written forms of entry 
 were sent in to the secretary of the sports, containing (as appeared 
 to be usual) a statement as to the last four races in which Sims had 
 run, together with a statement that he had never won a race. These 
 forms were not sent by Sims, nor were they in his handwriting, and 
 he knew nothing of them. They were, however, signed in his proper 
 name and with his true address, and contained a correct account of 
 his last four performances. The forms were proved to be not written 
 by the prisoner. 
 
 The performances of Sims were very moderate, and, as a fact, he 
 was only a moderate runner, and as a result the supposed Sims was 
 given by the handicapper of the sports a start of 11 yards in the 
 120-yard race and a start of 33 yards in the 440-yard race. 
 
 Sims was ill at Erith when the races were run, and was not at 
 Lincoln at all, and he was personated by the prisoner, who was a 
 fine performer and won both contests very easily. 
 
 The suspicion of the handicapper being aroused, he asked the pris- 
 oner, after the 120-yard race, whether he was really Sims, whether 
 the performance given in the entry form was really his, and whether 
 he had never won a race. To these questions the prisoner answered 
 that lie was Sims, thai the performances were his own, and that he 
 had never won a race. All these statements were untrue, and in par- 
 ticular he had won a race al Erith in his own name. The handicapper 
 was called as a witness, and swore that he would not have given the 
 
 t Accord: Reg. v. Bryan, 2 Post. & i\ 567 (1862). vf. Beg. v. Martin, L. 
 R l C. C 5G 1 1867).
 
 Sec. 5) EFFECTIVENESS OF THE PRETENSE. 531 
 
 prisoner such favorable starts if he had known his true name and per- 
 formances. 
 
 Matiiew, J. The conviction in this case must be upheld. The 
 case of Reg. v. Larner, 14 Cox, C. C. 497, is relied upon as an au- 
 thority for the defendant. In that case the question was one of fact, 
 and the Common Serjeant directed the jury according to his impres- 
 sion of the view of the law taken by Stephen, J., whom, it appears 
 from the report, he had consulted; but that case is contrary to the 
 ruling of Lord Lindley in a case tried before him at the Nottingham 
 Assizes (Reg. v. Dickenson, Roscoe's Criminal Evidence [12th Ed.] 
 432, 433, 2 Russell on Crimes [Gth Ed.] p. 511, book 3, c. 32, § 2, 
 Times of July 2G, 1879), and I am clearly of opinion that Lord Lindley 
 was right. The questions to be decided in the present case were pure 
 questions of fact, namely, whether the intention of the defendant, when 
 he entered for the races, was to obtain the prizes, and whether he made 
 the representations with that intention. It appears from the case that 
 he pretended to be a man who had never won a foot race, and he was 
 handicapped on the faith of that statement, as is shown by the evi- 
 dence given by the handicapper; but it also appears from the case 
 that his statement was false, for he had won races. Then it was sug- 
 gested that he competed in the name of Sims, as it is put in the case, 
 "for a lark"; but that question was for the jury, and they have nega- 
 tived the suggestion. It was also contended that his coming in first 
 in the races was owing to his own good running; but it was also 
 owing, in part at least, to the false pretenses, for by means of the 
 false pretenses he obtained a longer start than he would have had, if 
 his true name and performances had been known. It is also said that 
 some other act had to be done in order to make the offense complete, 
 and that he could not rightly be convicted, because it was not shown 
 that he had applied for the prizes, and that the criminal intention was 
 exhausted. The argument is exceedingly subtle, but unsound. In fact, 
 he was found out before he had the opportunity of applying for the 
 prizes, as no doubt he otherwise would have done. The pretenses 
 which the prisoner made were not too remote, and the conviction was 
 good. 1 
 
 Conviction affirmed. 
 
 PEOPLE v. WHITEMAN. 
 
 (Supreme Court of New York, 1902. 72 App. Div. 90, 76 N. T. Supp. 211.) 
 
 Laughun, J. On the 15th day of November, 1900, the defend- 
 ant was presented with a bill for $35.45 for board and lodging at the 
 Hotel Navarre, where he had previously registered under the name 
 
 i Argument of counsel and concurring opinion of Wright, J., are omitted. 
 Lawrence, Kennedy, and Darling, JJ., concurred.
 
 
 532 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 of John D. Wilson. He stepped up to the cashier's' window and 
 handed the bill to the cashier, together with a check for $100, pur- 
 porting to have been drawn by Arthur Dolan, Jr., on the Girard Trust 
 Company of Philadelphia, dated that day, and payable to the order 
 of John D. Wilson, and so indorsed. He made no express repre- 
 sentation and was asked no question. The cashier delivered to him 
 $64.55, the difference between the face of the check and his bill. The 
 check was in the due course of business forwarded to Philadelphia 
 for collection, and returned marked "No account." The defendant 
 remained at the hotel a couple of days after giving the check, but 
 departed before it was returned dishonored. It was shown that no 
 person by the name of Arthur Dolan, Jr., had had an account with 
 the Girard Trust Company within three years. The cashier knew 
 nothing of the defendant, except that he had registered at the hotel 
 under the name of John D. Wilson. Upon these facts the defendant 
 was arrested and subsequently indicted. 
 
 The indictment contains two counts, one charging grand larceny 
 in the second degree, under section 528 of the Penal Code, in obtaining 
 the money "by color or aid of fraudulent or false representation or 
 pretense," with "intent to deprive or defraud" the proprietor of the 
 hotel whose money was thus obtained, and the other charging grand 
 larceny in the second degree, under section 529 of the Penal Code, 
 in obtaining the money willfully and with intent to defraud the owner 
 "by color or aid" of the check, knowing "that the drawer or maker 
 thereof" was "not entitled to draw on the drawee for the sum speci- 
 fied therein, * * * although no express representation" was 
 "made in reference thereto." 
 
 It was shown that the defendant, on being arrested and informed 
 that the arrest was on a warrant "on a bad check in the Hotel Na- 
 varre," said to the officer on the way to the station house: "Now, 
 we can straighten this matter out. I can get money and make good 
 check. You have no feeling against me, have you?" No other 
 material evidence was introduced by the people, and the defendant 
 did not take the stand. 
 
 There can be no doubt, we think, that the evidence is wholly in- 
 sufficient to warrant a conviction under section 5JSy ot the Penal Code. 
 The evidence does not fairly Justify the inference that the detendanl 
 willfully with intent to defraud obtained the money on the check' with 
 knowledge that Dolan was not entitled to draw against the Phila- 
 hia haul, for the amount thereof. The most that can he inferred 
 from this evidence as tending to show a violation of the section lastly 
 referred 1" is that defendant was known to Dolan by an assumed name, 
 and that thi k was made payable to hi- order under an assumed 
 
 name, in which he indorsed it and obtained the money. This is not 
 necessarilv inconsistent with his innocence of the fact that Dolan 
 
 did not have an account with the Girard Trust Company which was 
 id f< if the ani' ilinl of the check.
 
 SCC. 5) EFFECTIVENESS OF THE TKETENSE. 533 
 
 The question of the sufficiency of the evidence to hold the defend- 
 ant under section 528 of the Penal Code for obtaining money "by 
 color or aid of fraudulent or false representation or pretense," with 
 intent to deprive the true owner thereof, is not so free from doubt. 
 The jury were doubtless justified in finding from all the facts and 
 circumstances that he deceived the cashier with reference to his true 
 name, and that in obtaining the money he falsely represented or pre- 
 tended that his true name was John D. Wilson. People ex rel. Phelps 
 v. Court of Oyer & Terminer, 83 N. Y. 43G, 453 ; Fowler v. People, 
 18 How. Prac. 493; Kling v. Irving Nat. Bank, 21 App. Div. 373, 
 47 N. Y. Supp. 528; People v. Pinckney, 67 Hun, 428, 22 N. Y. 
 Supp. 118. 
 
 If the facts and circumstances were such as to indicate that the 
 check would not have been cashed on his credit if it had been pay- 
 able to his order by his true name, then probably his conviction would 
 have been justified; but it does not appear that the cashier was led 
 by the fictitious name to believe that he was another individual of 
 financial responsibility. The credit was given to him, and he re- 
 mained liable civilly. The cashier was in no manner misled, except 
 as to the fact that he had registered under an assumed name. The 
 false pretense or representation with regard to his true name is not 
 what deprived the owner of his property. The check was cashed in 
 the expectation that it was good and would be paid. Payment was 
 not refused because of the fictitious name or indorsement of the payee, 
 but solely because of the want of funds to the credit of the maker. 
 The false pretense or representation, to constitute larceny, must 
 have some bearing upon the question as to whether the check will be 
 paid, or relate to the responsibility of the drawer or payee. There 
 is nothing to show or indicate that, if he had registered in his true 
 name and the check had been payable in that name, the credit would 
 not have been extended ; and, as he was unknown, it is manifest that 
 the credit was given to the individual, and not on the strength of a 
 name, which could have had no financial strength in such circum- 
 stances. 
 
 We think that the evidence is not sufficient to sustain his conviction. 
 The rule is necessarily quite different with reference to the criminal 
 liability in having a personal check cashed and in having a check 
 payable to one's order cashed. In the former case he is presumed to 
 know the condition of his own bank account ; but where a person 
 asks to have a check payable to his order cashed, while he guarantees 
 payment, it is evident that he may not know whether the account of 
 the drawer of the check is good, and he will not be liable criminally 
 unless he makes some express material representation or knows that 
 the check is not good. People v. Moore, 37 Hun, 84. Where neither 
 the signature nor financial standing of the drawer or payee is known, 
 there is no adequate protection afforded, either by the civil or criminal
 
 
 534 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 law, to one paying such a check without inquiry and obtaining satis- 
 factory representations. 
 
 In the case at bar the people have failed to introduce evidence which 
 tends to establish the guilt of the defendant beyond a reasonable 
 doubt. The facts and circumstances are extremely suspicious, but 
 they do not necessarily point to the guilt of the defendant and are 
 not inconsistent with his innocence; and the conviction, therefore, 
 cannot stand. People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 816. 
 
 The judgment should be reversed and a new trial granted. 
 
 Van Brunt, P. J., and Patterson, O'Brien, and McLaughlin, 
 JJ., concurred. 
 
 SECTION 6.— THE INTENT. 
 
 T 
 
 REX v. WILLIAMS. 
 
 (Brecon Assizes, 1S36. 7 Car. & P. 354.) 
 
 False pretenses. 1 It appeared that the prosecutor, Peter Williams, 
 owed John Williams, the prisoner's master, a sum of money, of which 
 John Williams could not procure payment, and that the prisoner, in 
 order to secure to his master the means of paying himself, had gone 
 to the prosecutor's wife, in her husband's absence, and told her that 
 his master had bought of her husband two sacks of malt, and had 
 sent him to fetch them away, and that thereupon the prosecutor's 
 wife delivered the two sacks of malt to the prisoner, who carried 
 them to his master. It further appeared that the pretense was false, 
 and that the prisoner knew it to be false at the time he used it. 
 
 Chilton, for the prisoner, submitted that the prisoner must be ac- 
 quitted, as he had no intent to defraud. 
 
 E. V. Williams, for the prosecution. As it has been proved that 
 what the prisoner pretended was false, and that he knew it to be so, 
 and that by means of such false pretense he obtained the goods, he 
 has brought himself within the statute; for every one must be taken 
 to have intended the natural consequences of his own act, and the 
 natural consequence of the prisoner's act was to defraud Peter Wil- 
 liams. 
 
 COLERIDGE, J. (in summing up). Although prima facie every one 
 must he taken to have intended the natural consequence of his own 
 act, yet if, in this case, you arc satisfied that the prisoner did not in- 
 tend to defraud Peter Williams, hut only to put it in his master's power 
 to compel him to pay a just debt, it will be your duty to find him not 
 
 i 'Hie iri<ii< 1 1 1 » < - 1 j t is omitted.
 
 Sec. 6) THE INTENT. 535 
 
 guilty. It is not sufficient that the prisoner knowingly stated that 
 which was false, and thereby obtained the malt. You must be satis- 
 fied that the prisoner at the time intended to defraud Peter Williams. 
 Verdict — Not guilty. 3 
 
 REGINA v. STONE. 
 
 (Lewes Assizes, 1858. 1 Fost. & F. 311.) 
 
 False pretenses. The indictment charged that the prisoner, being a 
 member of a building society, obtained from the society the sum of 
 £30 by means of a false pretense that he had completed two houses, 
 which he had to erect before he was entitled to receive the money. 
 
 Ballantine, Serjt., in opening the case, stated that it would appear 
 that the prisoner, by the rules, would have forfeited the houses in 
 case they were not completed by the time he made the pretense, and 
 that the certificate of a surveyor was necessary to be, and was in 
 fact, obtained before the money could be received; and, this being 
 so, the object of the false pretense might be to avoid the forfeiture. 
 It appeared to him, therefore, that the charge was not sustainable, 
 and he proposed to withdraw from the prosecution. 
 
 WiiXES, J., assented. 3 
 
 REGINA v. NAYLOR. 
 
 (Court of Criminal Appeal, 18G5. 10 Cox, C. C. 149.) 
 
 Case reserved by Alfred Coxon, Deputy Recorder of the City 
 of Chester. 4 
 
 The jury found, in answer to the questions put by me, that the 
 prisoner's statement that Moss wanted the carpets was false to his 
 knowledge, that he made it to induce the prosecutrix to part with the 
 carpets, that the prosecutrix was induced to part with the carpets 
 by reason of such false pretense, and that the prisoner, at the time 
 he made the pretense and obtained the carpets, intended to pay the 
 prosecutrix the price of them when it should be in his power to do so. 
 
 Upon this finding the counsel for the prisoner contended that the 
 jury had negatived the intention to defraud, and consequently that 
 the prisoner was entitled to a verdict of not guilty. 
 
 1 entertained some doubt upon the question, and therefore reserved 
 it for the consideration of the Court of Crown Cases Reserved. I 
 directed a verdict of guilty to be entered, but postponed judgment, 
 
 2 Accord: People v. Thomas, 3 Ilill (N. Y.) 169 (1842) ; Commonwealth v. 
 Henry, 22 Pa. 253 (1853). Cf. Reg. v. Hughes. 1 Cox, C. C. 244 (1845). 
 
 s See accord: Rex v. Wakeling, Russ. & Ry. 504 (1S23). 
 * The indictment and evidence are omitted.
 
 536 CHEATING AND FALSE PRETENSES. (Ch. 15 
 
 and the prisoner was discharged upon recognizance of bail to appear 
 and receive judgment. 
 
 The question for the consideration of the court is whether, upon the 
 facts above stated and the finding of the jury, a verdict of guilty 
 or a verdict of not guilty ought to have been entered. 
 
 No counsel appeared on either side. 
 
 Pollock, C. B. We are all of opinion that this conviction must be 
 affirmed. 
 
 Conviction affirmed.
 
 Sec. 1) RECEIVING STOLEN PROPERTY. 537 
 
 CHAPTER XVI. 
 RECEIVING STOLEN PROPERTY. 
 
 At common law no receivers were accessories but such as received 
 or harbored the thief himself; the receiving of the stolen goods only 
 did not make a man accessory, without taking a reward to favor the 
 felon's escape. If the owner received back his goods simply and 
 without any agreement to favor the felon in his prosecution, it was 
 lawful; but if he received them upon an agreement not to prosecute, 
 or to prosecute faintly, it was called theftbote, and punishable by im- 
 prisonment and ransom. But now by St. 3 W. & M. c. 9, § 4, "if 
 any person or persons shall buy or receive any goods or chattels that 
 shall be feloniously taken or stolen from any other person knowing 
 the same to be stolen, he or they shall be taken and deemed an ac- 
 cessory or accessories to such felony after the fact, and shall incur 
 the same punishment as an accessory, etc., after the felony com- 
 mitted. * * * " Now, by St. 22 Geo. Ill, c. 58, it is enacted "that 
 in all cases whatsoever, where anv goods or chattels * * * shall 
 have been feloniously taken or stolen, whether the offense of the prin- 
 cipal shall amount to grand larceny or some greater offense, or to 
 petit larceny only, * * * every person who shall buy or receive 
 any such goods and chattels, knowing the same to have been so taken 
 or stolen, 1 shall be deemed guilty of and may be prosecuted for a 
 misdemeanor. * * * " 
 
 2 East, P. C. c. 16. 
 
 SECTION 1.— THE SUBJECT OF THE CRIME. 
 
 REX v. COWELL. 
 
 (Suffolk Assizes, 1796. 2 East, P. C. 617.) 
 
 Cowell and Green were convicted upon an indictment charging that 
 Cowell feloniously stole one live ewe sheep, the goods, etc., of J. L., 
 and that Green received "twenty pounds of mutton, part of the goods, 
 etc., so as aforesaid feloniously stolen, etc., knowing the same to have 
 
 i St. 24 & 25 Vict. c. 96, has: "Knowing the same to have been feloniously 
 stolen, taken, extorted, obtained, embezzled, or disposed of."
 
 538 
 
 RECEIVING STOLEN PROPERTY. 
 
 (Ch. 16 
 
 been stolen." On a question referred to the judges, whether the in- 
 dictment were sufficient against the accessory, they all held the convic- 
 tion proper. 1 
 
 REX v. DYER. 
 
 (Exeter Assizes, 1S01. 2 East, P. C. 767.) 
 
 Dyer and Disting were indicted for stealing a quantity of barilla, 
 the property of M. Hawker. The fact appeared to be that the barilla 
 was on board a Swedish ship at Plymouth consigned to Hawker; that 
 Hawker employed Dyer, who was master of a large boat, for the 
 purpose of bringing the barilla on shore ; and Disting, together with 
 several others, were employed as laborers in removing the barilla 
 after it was landed to Hawker's warehouses. The jury found that, 
 while the barilla was in Dyer's boat, some of his servants, without 
 his privity, consent, or participation, severed some of the barilla from 
 the rest where it was stowed, and removed it to another part of the 
 boat, where they concealed it under some rope. But they also found 
 that Dyer afterwards assisted the other prisoner and the persons on 
 board, who had before separated this part from the rest, in removing 
 it from the boat for the purpose of carrying it off. 
 
 It was objected for the prisoner Dyer that his offense was not that 
 of a principal, as laid in the indictment, but that of receiver or ac- 
 cessory after the fact. But Graham, B., before whom the trial was 
 had, thought that so long as the barrilla remained in the boat the of- 
 fense as to Dyer could not be said to be complete, but that it was one 
 continuing transaction to the time of the complete carrying off of it 
 from the boat, and he directed the jury accordingly, who found the 
 fact specially as above stated, and that both the prisoners were guilty. 
 Graham, B., however, deferred passing sentence till the next day, 
 when he said that after consultation with the other judge (Mr. Justice 
 Le Blanc) he was now fully satisfied that his opinion was well 
 founded ; that though for some purposes, as with respect to those 
 concerned in the actual taking and separation, the offense would have 
 been complete, as being an asportation in point of law, yet with re- 
 spect to Dyer, who joined in the scheme before the barilla had been 
 actually taken out of the boat, where it was properly deposited for 
 the purpose of being landed, and who assisted in the act of carrying 
 • off from thence, it was one continuing transaction, and could not 
 be said to be completed till the removal of the commodity from such 
 place of deposit; and Dyer, having assisted in the act of carrying it 
 off, was therefore guilty as principal. 
 
 ' See Accord: 
 (3877). 
 
 Commonwealth v. White, 128 Mass. too, 25 Am. Hep. 116
 
 Sec, 1) THE SUBJECT OF THE CRIME. 539 
 
 REGINA v. GRUNCELL. 
 
 (Central Criminal Court, 1839. 9 Car. & P. 3G5.) 
 
 The prisoner Gruncell was indicted for stealing a quantity of hay, 
 the property of his master, and the prisoner Hopkinson with receiving 
 it, well knowing it to have been stolen. 
 
 It appeared that the prisoner Gruncell, who was a carter, and was 
 allowed by his master a small quantity of hay for the use of the 
 horses on their journey to and from London, on the day mentioned 
 in the indictment, took from his master's stables two trusses of hay 
 above the quantity which was allowed for the horses, and that the 
 prisoner Hopkinson, who was the hostler at a public house where the 
 wagon stopped on the journey, came to the tail of the wagon and re- 
 ceived the two trusses of hay from the other prisoner, and carried 
 them from the wagon to the stable. 
 
 Adolphus submitted that the indictment was wrongly framed as to 
 the prisoner Hopkinson in charging him with being a receiver, be- 
 cause, if he had committed any offense at all, it was that of stealing, 
 as the hay, being in the master's wagon, was in the master's possession 
 in point of law, and the act of the prisoner in removing it from the 
 wagon constituted it a larceny, and not a receiving. 
 
 Mirehouse, C. S., was of opinion that the indictment was properly 
 framed, but said he would consult Mr. Baron Parke, who was in the 
 adjoining court. He accordingly did so, and on his return said: "The 
 learned judge has gone very carefully, with me and Mr. Clark, through 
 the cases on the subject, and he is clearly of the opinion, with me, that 
 the indictment is properly framed ; and he is so on this ground : 
 That, as the hay was not hay appropriated by the master for the 
 horses, the moment it got into the cart animo furandi, the larceny was 
 complete. If it had been hay allowed for the horses which had been 
 stolen, it would have been otherwise. 
 
 Verdict— Guilty. 
 
 REGINA v. SCHMIDT. 
 
 (Court for Crown Cases Reserved, 1866. 10 Cox, C. C. 172.) 
 
 Case reserved for the opinion of this Court by the Deputy Chair- 
 man of the Quarter Sessions for the Western Division of the County 
 of Sussex. 
 
 John Daniels, John Scott, John Townsend, and Henry White were 
 indicted for having stolen a carpet bag and divers other articles, the 
 property of the London, Brighton & South Coast Railway Company, 
 and the prisoner, Fanny Schmidt, for having feloniously received a 
 portion of the same articles, well knowing the same to have been 
 stolen.
 
 540 RECEIVING STOLEN PROPERTY. (Ch. 16 
 
 The evidence adduced before me as Deputy Chairman of the Court 
 of Quarter Sessions at Chichester, for the Western Division of the 
 County of Sussex, on the 20th of October, 1865, so far as relates to 
 the question I have to submit to the Court of Criminal Appeals, was 
 as follows : 
 
 On the 29th of July, 1865, two passengers by the prosecutors' line 
 of railway left a quantity of luggage at the Arundel Station, which 
 luggage was shortly afterwards stolen therefrom. 
 
 On the 30th of July a bundle containing a portion of the stolen 
 property was taken to the Angmering Station, on the same line of 
 railway, by the prisoner Townsend, and forwarded by him to the 
 female prisoner, addressed, "Mr. F. Schmidt, Waterloo Street, Hove, 
 Brighton." The bundle was transmitted to Brighton, in the usual 
 course, on Sunday morning, the 30th. 
 
 Meanwhile the theft had been discovered, and shortly after the 
 bundle had reached the Brighton Station a policeman (Carpenter) at- 
 tached to the railway company opened it, and, having satisfied himself 
 that it contained a portion of the property stolen from the Arundel 
 Station, tied it up again, and directed a porter (Dunstall), in whose 
 charge it was, not to part with it without further orders. 
 
 About 8 p. m. of the same day (Sunday, 30th) the prisoner, John 
 Scott, went to the station at Brighton and asked the porter (Dunstall) 
 if he had got a parcel from the Angmering Station in the name of 
 "Schmidt, Waterloo Street." Dunstall replied, "No." Scott then 
 said : "It is wrapped up in a silk handkerchief, and is directed wrong. 
 It ought to have been directed to 22 Cross street, Waterloo street." 
 Dunstall in his evidence added: "I knew the parcel was at the sta- 
 tion; but I did not say so, because I had received particular orders 
 about it." 
 
 The four male prisoners were apprehended the same evening in 
 Brighton on the charge, for which they were tried before me and 
 convicted. 
 
 On Monday morning, the 31st of July, the porter (Dunstall), by 
 the direction of the policeman (Carpenter), took the bundle to the 
 house Xo. 22 Cross street, Waterloo street, occupied as a lodging 
 house and beer house by the female prisoner and her husband (who 
 was not at home, or did not appear), and asked if her name was 
 Schmidt, on ascertaining which he left t lie bundle with her and went 
 away. Carpenter and another policeman then went to the house, 
 found the bundle unopened, and took the prisoner to the Town Hall. 
 
 All the prisoners were found guilty, and I sentenced each of them 
 to six months' imprisonment with hard labor. They are now in Fet- 
 worth gaol in pursuance of* that sentence. 
 
 At the request of the counsel for the female prisoner I consented 
 to reserve for the opinion of this court the question : 
 
 Whether the goods alleged to have been received by her had not, 
 under the Circumstances Stated, lost their character of stolen property,
 
 Seel) THE SUBJECT OF THE CRIME. 541 
 
 so that she ought not to have been convicted of receiving them with 
 a guilty knowledge within the statute.' 
 
 Hasler Hollist. 
 
 Pearce (Willoughby with him), for the prisoner. The conviction 
 is wrong. To support a conviction for receiving stolen goods, it 
 must appear that the receipt was without the owner's authority. In 
 this case, in consequence of the conduct of the railway company, the 
 property had lost its character of stolen property at the time it was 
 delivered at the receiver's house by the railway porter. The property 
 is laid in the indictment as the property of the railway company, and 
 Carpenter was not an ordinary policeman, but, as the case states, a 
 policeman attached to the railway company. He opens the bundle, 
 and finding therein some of the stolen property, he gives it to Dun- 
 stall, and orders it to be detained until further orders, and in the mean- 
 time the thieves were arrested. Carpenter then directs Dunstall to 
 take the bundle to the receiver's house, so that the receiver got the 
 stolen property from the railway company, who alone on this indict- 
 ment are to be regarded as the owners of the property. The railway 
 company, the owners, having got their property back, make what must 
 be considered a voluntary delivery of it to the receiver. The case is 
 similar to Reg. v. Dolan, 6 Cox, C. C. 449, 1 Dears. C. C. 436, where, 
 stolen goods being found in the pockets of the thief by the owner, 
 who sent for a policeman, and then, to trap the receiver, the goods 
 were given to the thief to take them to the receiver's, which he did, 
 and the receiver was afterwards arrested, it was held that the receiver 
 was not guilty of feloniously receiving stolen goods, inasmuch as 
 they were delivered to him under the authority of the owner. In 
 that case Reg. v. Lyons, Car. & M. 217, was expressly overruled. 
 Lord Campbell, C. J., said, in Reg. v. Dolan : "If an article once stolen 
 has been restored to the owner, and he, having had it fully in his pos- 
 session, bails it for any particular purpose, how can any person who 
 receives the article from the bailee be said to be guilty of receiving 
 stolen goods within the meaning of the act of Parliament?" 
 
 Hurst, for the prosecution. Unless this case is distinguishable from 
 Reg. v. Dolan, the conviction, it must be conceded, is wrong. But 
 the facts of this case are more like the view taken by Cresswele, J., 
 in Reg. v. Dolan : "That, while the goods were in the hands of the 
 policeman, they were in the custody of the law ; and the owner could 
 not have demanded them from the policeman, or maintained trover 
 for them." In that case the real owner intervened, and had manual 
 possession of the stolen goods ; here he does not. The goods belonged 
 to the railway passenger, and the company are only bailees. [Mellor, 
 J. The policeman merely opened the bundle in the course of its transit, 
 to see what was in it, and then sent it according to its direction. It 
 was in the hands of the policeman, not of the company. Erle, C. J. 
 Suppose a laborer steals wheat, and he sends it by a boy to his accom- 
 plice, and the policeman stops the boy, ascertains what he has got,
 
 542 RECEIVING STOLEN PROPERTY. (Ch. 16 
 
 then tells him to go on, then follows and apprehends the accomplice, 
 is not the accomplice guilty of feloniously receiving? Mellor, J. 
 Here the policeman does nothing to alter the destination of the bundle. 
 The element of the real owner dealing with the stolen property is 
 wanting in this case. Keating, J. Scott directs the address to be 
 changed.] The bundle was sent by the thieves, through the railway 
 company, to the receivers. The real owner had nothing to do with 
 this part of the transaction. [Lush, J. If the true owner had sued 
 the company for the property, the company could not have justified 
 detaining or converting it.] If a policeman knows of stolen goods 
 being in the hands of an innocent agent, and does not take possession 
 for the owner, and the innocent agent, by the policeman's directions, 
 delivers them to a receiver, that does not prevent the receiver being 
 guilty of feloniously receiving. 
 
 Pearce, in reply. Before the bundle was sent out for delivery the 
 thieves were in custody, and, having secured them, Carpenter then gives 
 orders for the bundle to be delivered to the receiver. Carpenter was 
 the servant of the railway company, who are the owners for the pur- 
 pose of this indictment, and the delivery, therefore, was by the owners. 
 
 [Erle, C. J., and Mellor, J., were of opinion that the conviction was 
 right; but Martin, B., and Keating and Lush, JJ., held the con- 
 viction wrong. In consequence of the prisoner having suffered half 
 the term of imprisonment from inability to get bail and the further 
 unavoidable delay, the case was not sent to be argued before all the 
 judges.] 
 
 Erle, C. J. I am of opinion that the conviction was right. The 
 question is whether, at the time this stolen property was received by 
 the prisoner, it was the property of the London & Brighton Railway 
 Company, and, if so, whether, when the policeman, Carpenter, caused 
 the delivery to be stopped for the purpose of detecting the parties im- 
 plicated, it thereby lost the character of stolen property. If it had 
 lost the character of stolen property at the time it was received by the 
 prisoner, the receiving by her will not amount to felony. But in this 
 case I think that the railway company, when they took this bundle into 
 their possession, were acting as bailees of the thief, and were innocent 
 •its in forwarding it to the receiver, and that the things did not lose 
 their character of stolen property by what was done by the policeman. 
 
 Keating, J. I agree with my Brother Martin that the conviction 
 was wrong. It seems conceded, on the authority of Dolan's Case, 
 that, if the property had got back again for any time into the hands 
 of the true owner, tin- conviction would he wrong. It is said that in 
 this case the owners mentioned in the indictment, the railway com- 
 pany, were not the real owners, whereas in Dolan's Case the real owner 
 intervened. But I think there is no distinction in principle between 
 this case and that. The railway company are alleged in the indict- 
 ment to be the owners of the property, and we, sitting here, can recog- 
 nize no other per 'ii than them. They are the owners from whom
 
 Sec. 1) THE SUBJECT OF THE CRIME. 543 
 
 the property was stolen, and it got back to their possession before it 
 was received by the prisoner. I can see no real distinction between 
 this case and Dolan's. All the reasons given for the judgment in that 
 case apply equally to the case of the ownership in this case. The prin- 
 ciple I take to be that, when once the party having the right of con- 
 trol of the property that is stolen gets that control, the transaction is 
 at an end, and there can be no felonious receipt afterwards. I think 
 the test put my Brother Lush in the course of the argument, as to the 
 real owner suing the railway company for the property after they 
 had got the control of it, is decisive of the matter. 1 
 Conviction quashed. 2 
 
 REGINA v. STREETER. 
 
 (Court for Crown Cases Reserved, 1900. [1900] 2 Q. B. G01.) 
 
 Case stated by the chairman of the West Sussex Quarter Sessions. 
 
 Ellen Tickner and William Streeter were tried for larceny in a 
 dwelling house of some household goods, a sewing machine, and £27 
 in money. A count for receiving, in the usual form, was added to 
 the indictment. 
 
 It appeared from the evidence that the defendant Ellen Tickner was 
 living with her husband, James Tickner, to whom she had been mar- 
 ried 26 or 27 years, at Stammerham, near Horsham. The defendant 
 William Streeter was lodging with them. 
 
 On April 21, 1900, James Tickner turned Streeter out of the house. 
 On May 11th Ellen Tickner packed, and sent by the carrier to Hors- 
 ham, two boxes labeled "Streeter, Passenger to Brighton," which the 
 carrier handed to Streeter at Horsham Station. Ellen Tickner shortly 
 afterwards left her husband's house, while he was at work, and joined 
 Streeter at Southwater Station, on the line to Brighton. They were 
 subsequently found living together as man and wife at Farnham. 
 James Tickner, after his wife's disappearance, missed the money and 
 goods referred to in the indictment, and gave information to the 
 police, which led to the arrest of the prisoners. At the time of the 
 arrest the missing goods were found in the boxes which Ellen Tick- 
 ner had sent to Streeter, and £27 in money was found in Streeter's 
 box, the key of which was found in Ellen Tickner's purse. 8 
 
 The question for the decision of the court was whether, upon the 
 facts set out above, Streeter could be indicted for receiving goods stolen 
 by Ellen Tickner from her husband. 
 
 Matthew, J. The conviction in this case must be quashed. The 
 
 i The opinions of Martin, B., and Mellor and Lush, JJ., are omitted. 
 
 2 Accord: U. S. v. De Bare, G Biss. (U. S.) 35S, Fed. Cas. No. 14.035 (1875) ; 
 Reg. v. Hancock, 14 Cox, C. C. 119 (1878) ; Reg. v. Villensky, [1S92] 2 Q. B. 
 597 (1892). 
 
 3 Part of the statement is omitted.
 
 544 RECEIVING STOLEN PROPERTY. (Cll. 16 
 
 point is really concluded by the decision in Reg. v. Smith, L. K. 1 C. 
 C. 266. Formerly there were two cases in which an indictment for 
 larceny could not be preferred. The first case was that of a wife 
 faking the goods of her husband, and the second was that of a partner 
 taking the goods of the partnership. Both these cases have been 
 brought within the criminal law by act of Parliament — the case of 
 a partner by the larceny act of 1868 (St. 31 & 32 Vict. c. 116), and 
 that of a wife by the married women's property act of 1882 (St. 45 
 & 46 Vict. c. 75, §§ 12, 16). The question which we have to deter- 
 mine is whether the present case comes within the terms of the larceny 
 act of 1SG1 (St. 24 & 25 Vict. c. 96, § 91), so as to render the male 
 prisoner liable to be convicted of receiving. The material words of 
 that section are as follows: "Whosoever shall receive any chattel, 
 money, valuable security, or other property whatsoever, the stealing, 
 taking, extorting, obtaining, embezzling, or otherwise disposing where- 
 of shall amount to a felony, either at common law or by virtue of 
 this act, knowing the same to have been feloniously stolen * * * 
 shall be guilty of felony." Here the act of the woman in taking her 
 husband's property, which would not have been a felony either at 
 common law or by virtue of the larceny act of 1861, has been made 
 a criminal offense by another act, the married women's property act 
 of 1882 (sections 12 and 16) ; but this does not bring it within the 
 words "either at common law or by virtue of this act" — that is, the 
 larceny act of 1861. Reg. v. Smith, 1839, 2 Moo. C. C. 101, 9 C. & 
 P. 289, was a case in which partnership property had been stolen by 
 a partner and received by the prisoner, the stealing being a criminal 
 offense by virtue of the larceny act of 1868, and it was held that the 
 prisoner could not be convicted of receiving under Larceny Act 1861, 
 § 91. Our decision must be to the same effect ; that is, that the prisoner 
 cannot be convicted of receiving property stolen by a wife from her 
 husband. 
 
 Lawrence, J., concurred. 
 
 Wright, J. I agree that this prisoner could not properly be con- 
 victed under Larceny Act 1861, § 91 ; but in future cases it seems thai 
 there might be an indictment for receiving at common law. 
 
 Kennedy and Darling, JJ., concurred. 
 
 Conviction quashed.
 
 Sec. 2) the act of receiving. 545 
 
 SECTION 2.— THE ACT OF RECEIVING. 
 
 REGINA v. WILEY. 
 
 (Court for Crown Cases Reserved, 1850. 1 Eng. Law & Eq. 5G7.) 
 
 Martin, B. 1 It appears that two men stole some fowls, put them 
 into a sack, and brought them into the house of Wiley's father, for 
 the purpose of selling them to Wiley; that they all three went out of 
 the house into the stable, the thieves carrying the sack and Wiley pre- 
 ceding them with a candle; that the stable door was shut; and that 
 the policeman, on opening it, found the sack on the ground and three 
 men standing round it, as if bargaining. Upon this case I am of 
 opinion that Wiley never did receive these articles. I entirely agree 
 that the question arises upon the possession. There was no property 
 in these fowls, or in any of them. The men who stole the fowls had 
 them in their possession, and intended to hold them hostilely to Wiley, 
 and never intended to let him have them, unless some bargain were 
 made between themselves and Wiley for the purchase of them. I 
 think that, in the ordinary acceptation of the word "receive," Wiley 
 could not be said to have received this property, and that, therefore, 
 he ought not to have been convicted. 2 
 
 Erle, J. I am of opinion that the conviction is right, and on two 
 grounds. The first ground is because Wiley co-operated with the 
 thieves in removing the goods into the stable, which was under Wiley's 
 control, for the purpose of more securely effecting a bargain respect- 
 ing them. Now, if Wiley had taken part in the actual carrying of 
 the goods, there would have been no doubt, I believe, in the minds of 
 many of my Brothers but that he would have been rightly convicted. 
 But he lighted a candle, and preceded the thieves, while they carried 
 the sack ; and I think that in so doing he co-operated with them, so 
 as to render himself liable to be convicted as a receiver. I come to 
 this conclusion on the principle of the law that a person who assists 
 a thief in removing to a place of safety goods which the latter has 
 already removed from the owner's premises cannot be convicted of 
 larceny; but it seems to me that the person who so co-operates is a 
 criminal, and that the law would reach him as a receiver. The other 
 ground on which I think that this conviction may be sustained is that 
 I attach a wider meaning to the word "receive" than has been given 
 to it by some of my Brothers. The rules respecting property which 
 have relation to civil rights seem to me to have no application here. 
 Several statutes have been passed to render an accessory after the fact 
 
 i The statement and the argument of counsel are omitted. 
 2 Talfourd and Patteson, J.7., and Piatt, Alderson, and Parke, BB., deliver- 
 ed concurring opinions, in which Maule, J., concurred. 
 
 Mik.Cr.D.— 35
 
 546 RECEIVING STOLEN PROPERTY. (Ch. 16 
 
 more open to punishment than he was at common law. I think that 
 the word "receive," with respect to stolen goods, should be construed 
 with reference to the word "harbor," applied to the thief. If a man har- 
 bors the stolen goods, knowing them to be stolen, for the purpose of 
 aiding the thief, he is liable under the statute as a receiver. If he is 
 the owner of a stable, and authorizes thieves to deposit stolen prop- 
 erty on the premises, he would be liable in like manner; and it seems 
 to me that he is not the less liable because the thieves remain there 
 also. If they bring the property there with his consent, he is, I think, 
 guilty of receiving it. The earlier statutes did not contemplate that 
 there must be any bargain or transfer of the goods to a man to con- 
 stitute him a receiver. In St. 29 Geo. II, c. 30, it was made an offense 
 to leave the window, door, or shutter of any premises open at night 
 for the purpose of offering a thief a place of deposit for any stolen 
 lead or other metal. 
 
 On both these grounds I am of opinion that the conviction is right. 3 
 Coleridge, J. 4 I think, also, that the conviction is wrong. In my 
 opinion, "receiving" must import possession, actual or constructive. 
 I cannot find either here. I think, therefore, that the conviction is 
 wrong. It is of great importance that in the administration of the 
 criminal law we should proceed upon broad principles of construction, 
 intelligible to common understandings. 
 Conviction reversed. 6 
 
 REGINA v. WOODWARD. 
 
 (Court of Criminal Appeal, 1862. 9 Cox, C. C 95.) 
 
 Case reserved for the opinion of the Court of Criminal Appeal. At 
 the Quarter Sessions of the Peace for the County of Wilts, held at 
 Marlborough, on the 16th day of October, 1861, before me, Sir John 
 Wither Awdry, Bart., and others, my fellows, Benjamin Woodward, 
 of Trowbridge, in the county of Wilts, dealer, was found guilty of 
 receiving stolen goods, knowing them to have been stolen, and was 
 thereupon sentenced to nine calendar months' imprisonment with hard 
 labor, and the prisoner now is undergoing his sentence. 
 
 The actual delivery of the stolen property was made by the prin- 
 
 Part of llils opinion Is omit led. Campbell, C. J., and Williams and 
 Gresswell, .T.T., delivered concurring opinions. 
 
 * Pari of ihis opinion is omitted. 
 
 s Compare: State v. Scovel, 1 Mill, Const. (S. c.) 274 (1817); State v. 
 Stroud, 98 N. C. 626 (1886). in State v. St. Clair, 17 [owa, L49 (1864), the 
 Indictmenl being for concealing stolen property, Lowe, J., said: "it is not 
 necessary that the evidence should show that he had physical possession of 
 it himself and concealed it with bis own hands. Bui it' he was present, knew 
 
 thai it was stolon property, and saw it hid hy another, and kept Silent, and 
 
 refused to give Information to the officers searching tor the same, such con- 
 duct, unexplained, makes him as guilty in law as the party whose hands 
 actually secreted the goods."
 
 Sec. 2) THE ACT OF RECEIVING. 547 
 
 cipal felon to the prisoner's wife, in the absence of the prisoner, and 
 she then paid Gd. on account; but the amount to be paid was not then 
 fixed. Afterwards the prisoner and the principal met and agreed on 
 the price, and the prisoner paid the balance. 
 
 Guilty knowledge was inferred from the general circumstances of 
 the case. 
 
 It was objected that the guilty knowledge must exist at the time of 
 receiving, and that when the wife received the goods the guilty knowl- 
 edge could not have come to the prisoner. 
 
 The court overruled this objection, and directed the jury that until 
 the subsequent meeting, when the act of the wife was adopted by 
 the prisoner and the price agreed upon, the receipt was not so com- 
 plete as to exclude the effect of the guilty knowledge. 
 
 If the court shall be of opinion that the circumstances before set 
 forth are sufficient to support a conviction against the prisoner for the 
 felonious receipt, the conviction is to stand confirmed; but if the 
 court shall be of a contrary opinion, then the conviction is to be 
 quashed. J. \y. Awdry. 1 
 
 Erle, C. J. The argument of the learned counsel for the prisoner 
 has .failed to convince me that the conviction was wrong It appears 
 that the thief brought to the premises of the prisoner the stolen goods 
 and left them, and that sixpence was paid on account of them by the 
 prisoner's wife; but there was nothing in the nature of a complete 
 receipt of the goods until the thief found the husband, and agreed with 
 him as to the amount, and was paid the balance. The receipt was 
 complete from the time when the thief and the husband agreed. Till 
 then the thief could have got the goods back again on payment of the 
 sixpence. I am of opinion, therefore, that the conviction should be 
 affirmed. 2 
 
 Wilde, B. I read the case as showing that the wife received the 
 goods on the part of the prisoner, her husband, and that act of hers 
 was capable of being ratified on the part of the prisoner. If so, that 
 makes the first act of receiving by the wife his act. In the case of 
 Reg. v. Dring and Wife, the only statement was "that the husband 
 adopted his wife's receipt," and the court thought the word "adopted" 
 capable of meaning that the husband passively consented to what his 
 wife had done, and on that ground quashed the conviction. But here 
 the prisoner adopted his wife's receipt by settling and paying the 
 amount agreed on for the stolen goods. 
 
 Mellor, J., concurred. 
 
 Conviction affirmed. 
 
 i The argument of Broderick, for the prisoner, is omitted. 
 
 2 The concurring opinions of Blackburn and Keating, JJ., are omitted.
 
 548 RECEIVING STOLEN PROPERTY. (Cll. 16 
 
 SECTION 3.— THE GUILTY KNOWLEDGE. 
 
 FRANK v. STATE. 
 (Supreme Court of Mississippi, 18S9. 67 Miss. 125, 6 South. S42.) 
 
 Appellant was indicted for receiving stolen goods, a lot of car brass- 
 es, knowing them to be stolen. 1 
 
 Campbell, J., delivered the opinion of the court. 
 
 It is true, as held in Sartorious v. State, 24 Miss. 602, that it is not 
 sufficient, to convict the prisoner of receiving goods knowing them 
 to be stolen, to show that he stole them; but where circumstances 
 warrant the conclusion that they were stolen by another, and they are 
 traced to the possession of the defendant, under circumstances suffi- 
 cient to make him believe they were stolen, this is sufficient to uphold 
 a conviction. By knowing them to be stolen is not meant that the de- 
 fendant should personally have witnessed the theft. If the transaction 
 is such as to convince him, or as should do so, that the things were 
 stolen, and he received them, he has knowledge to make him guilty. 
 
 The evidence justifies the verdict of the jury. We find no error 
 in the instructions. The assumption in one of them that the goods 
 were stolen by another than Frank, in view of the evidence, which 
 made this indisputable, is not ground for complaint. 
 
 Affirmed. 2 
 
 STATE v. CAVENESS. 
 
 (Supreme Court of North Carolina, 1S78. 78 N. C. 484.) 
 
 Indictment for larceny, with a count for receiving, etc., tried at 
 fall term, 1877, of Randolph superior court, before Buxton, J. 
 
 Bynum, J This case is before us on the appeal of the defendant 
 from the refusal of the court below to give him a new trial for al- 
 leged errors which wc will specify and dispose of in their order. 3 
 
 A more serious question is whether it was not the duty of the court 
 to have instructed the jury that there was no evidence to convict the 
 defendant upon the second count. Assuming that all the material 
 evidence is set out in the case, the sum of it is, touching the second 
 count, that the property was stolen one night and found next morning 
 in the defendant's stable; that he was net then at home, and, in point 
 of fact, was m another county, in miles distant, and did not return un- 
 
 i Pari "f thla case is omitted. 
 
 ■ Accord: Reg. v. white, i Foat & B\ 666 (I860): Murio v. State, .".) Tex. 
 Cr. R. 210, 20 s. W. 856 (1892); State v. Feuerhaken, DC Iowa, 299, 66 N. 
 \V. 299 (1896). 
 
 « Part of the opinion only is printed,
 
 SCC. 4) THE INTENT. 549 
 
 til the second day after the occurrence. He certainly did not receive 
 the property until his return, as there is no evidence of previous guilty 
 knowledge or connivance. To be guilty, he must have known at the 
 moment of receiving it that it had been stolen, and he must at that time 
 have also received it with a felonious intent. There is no evidence 
 that he had any knowledge then imparted to him of the circumstances 
 under which the property was found upon his premises, communicat- 
 ing to him notice of the felony ; and his subsequent open and notorious 
 user, and both previous and subsequent claim of property as his own, 
 are inconsistent with felonious intent at the time of receiving, which 
 is necessary to constitute guilt upon the second count. 
 
 As, however the evidence is not fully stated, and neither the atten- 
 tion of the court nor counsel seems to have been directed to this in- 
 firmity in the case, we do not rest our decision granting a new trial 
 upon this point, but upon the error of the court in respect of the 
 seventh exception. 
 
 There is error. 
 
 Venire de novo. 
 
 SECTION 4.— THE INTENT. 
 
 REX v. DAVIS. 
 (Gloucester Assizes, 1S33. G Car. & P. 177.) 
 
 The prisoners, who were father and daughter, the former being a 
 pawnbroker at Cheltenham, were indicted as receivers on several in- 
 dictments, which charged them with receiving sheets and various 
 articles of linen, the property of Thomas Liddell. It appeared that 
 the goods laid in the first indictment were found, together with many 
 other goods of the prosecutor, at the house of the elder prisoner, 
 marked with his mark. 
 
 Gurney, B. 1 If the receiver takes without any profit or advantage, 
 or whether it be for the purpose of profit or not, or merely to assist the 
 thief, it is precisely the same. 2 
 
 The prisoners were acquitted on the merits. 
 
 i Only so much of the case as relates to intent is printed. 
 
 2 Accord: State v. Rushing, 69 N. C. 29, 12 Am. Rep. 641 (1873); State 
 v. Hodges, 55 Md. 127 (1SS0). 
 
 "In order to constitute the crime created by the statute, the stolen property 
 must be received feloniously, or with intent to secrete it from the owner, 
 or in some other way to defraud him of such property. The intent must be 
 criminal or unlawful ; otherwise, no crime can be committed. It is the 
 intent with which the property is received that constitutes the essence of the 
 crime. If the intent is honest and meritorious, no crime can be committed." 
 Crippen, P. J., in People v. Johnson, 1 Parker, Cr. R. (N. Y.) 564 (1854). Ac- 
 cord: State v Sweeten, 75 Mo. App. 127 (1898).
 
 550 RECEIVING STOLEN PROPERTY. (Cll. 16 
 
 PEOPLE v. WILEY. 
 
 (Supreme Court of New York, 1842. 3 Hill, 194.) 
 
 Cowen, J. 1 The section under which the defendant was indicted 
 is as follows : "Every person who shall buy or receive in any manner, 
 upon any consideration, any personal property of any value whatso- 
 ever, that shall have been feloniously taken away or stolen from any 
 other, knowing the same to have been stolen, shall, upon conviction, 
 be punished," etc., 2 Rev. St. (2d Ed.) p. 567, pt. 4, c. 1, tit. 3, § 71. 
 
 In charging the jury, the court mentioned the owner of the goods 
 coming to reclaim his stolen property, and his bona fide agents, as not 
 within the purview of the statute. But I take it to be clear, on the 
 other hand, that if, pursuant to an understanding between a stranger 
 and a thief, the stranger invite an interview with the owner, and ob- 
 tain and actually receive the goods for him, under the mere color of 
 an agency, but really to make a profit out of the larceny, he is a re- 
 
 Vceiver within the statute. 
 The broad ground was taken on the argument that the offense 
 would not be within the statute of receivers, even though a reward 
 should be taken from the thief himself. 
 
 In the case at bar the defendant had come to a knowledge of the 
 larceny soon after its commission, and he appeared to have that sort 
 of communication, and to exercise such a control in respect to the 
 stolen goods, and to negotiate in such a way for their delivery, as to 
 raise a strong belief that he had arranged with the thief to restore the 
 goods as a method of profiting by the crime. He receiving and de- 
 livering the goods under such a corrupt arrangement, the pretense 
 of acting as agent for the owner could not operate as a protection. He 
 would be in truth acting for himself. His pretext of agency for the 
 owners would be fraudulent and void, and to allow practices of this 
 kind would be to sanction a mode of evading the statutes. 
 
 It seems to me that the charge of the court below when properly 
 understood, so far as it relates to the merits, can hardly be considered 
 as going beyond the distinction between a real and colorable agency — 
 between the defendant affecting to receive the goods for the owner, 
 but really receiving them for his own benefit. The only part of the 
 charge on the merits which is questioned by the bill of exceptions re- 
 spects the concluding transactions of Saturday, the 26th of June, when 
 the agreement for the delivery of the goods was consummated. That 
 at this time the defendant knew the goods to have been stolen there 
 
 no doubt; nor thai he had known the same thing during the pre- 
 vious days of the week. Now, if he had all this time been treating 
 
 r such a reward only as was insisted on by the thief before lie would 
 give up the goods, or for a fair compensation to himself, proposed and 
 
 1 only extract! from the opinion are printed.
 
 Sec. 4) THE INTENT. 551 
 
 allowed as such, for his trouble, or if he had required both, I do not 
 understand the court below to have said that his receiving the goods 
 and fulfilling such an engagement would have been criminal within 
 the statute. But suppose that, with such full knowledge and so much 
 negotiation and apparently honest intentions to benefit the owners, his 
 secret intent on Saturday was to convert the reward, or most of it, to 
 his own use — to make a commodity out of the felony at the expense 
 of the owners — and that he received and restored the goods with that 
 intent, and carried it out either by taking the whole reward or dividing 
 with the thief ; it seems to me we have in such a case the very mischief 
 which the statute was mainly intended to remedy. That mischief was 
 such a receipt of stolen goods, with knowledge, as, contrary to the 
 owner's intent, should deprive him of them, or any part of them. This 
 is the doctrine which I understand the court below to have held. They 
 said, if he received the property on Saturday with the intent (such 
 intent being unknown and unassented to by the owners or their agents) 
 to appropriate the reward to himself or divide it with the thief, and 
 did either, he was then guilty. I do not recite the charge literally, but 
 such is the substance of that part to which the stress of the argument 
 for the defendant was directed. 
 
 1 would by no means be considered as admitting that any arrange- 
 ment to obtain and restore stolen goods for a reward stipulated with 
 the owner, and actually receiving them from the thief for that purpose, 
 would stand clear of the statute. 2 It obviously would not, if the re- 
 ward were to be received from the thief; and, if from the owner, it 
 would be a crime within the statute under which Jonathan Wild was 
 hung. In the most favorable view, it would in general be an act of 
 high legal criminality; for it is commonly accompanied with a com- 
 position of felony. This, at least, is a crime from the imputation of 
 which even the owner himself and his most innocent agents (if the 
 word "innocent" be admissible) can hardly be considered clear in such 
 a transaction. 
 
 This defendant was the factotum. The thief, considering him an 
 adept, appeals to him as a confidential go-between; and he proposes 
 to obtain and restore the goods — say, if you please, for a specific share 
 of the stolen fund. This is acceded to, and he receives the goods. 
 I can feel no doubt that such a man is within the statute, both as to 
 the letter and spirit. He instructs his counsel to call this honesty. 
 It is, indeed, the honesty of a thief-broker; and had he, in this sense, 
 dealt honestly and fairly both with the agents and the thief, I think 
 he was within the statute. It follows, then, that in speaking of Sat- 
 urday's transaction the court put it with too great qualification. They 
 might well have told the jury that, though the agents of the bank were 
 in no way imposed upon by the defendant, yet he was guilty. It fol- 
 
 2 Accord: Receiving to induce owner to give reward, State v. Pardee, 37 
 Ohio St. 63 (1S81).
 
 552 RECEIVING STOLEN PROPERTY. (Ch. 16 
 
 lows that, so far from charging too strongly against the defendant, they 
 erred in his favor. 
 
 On the whole, I am of opinion that a new trial should be denied, 
 that the record be remitted, and the oyer and terminer be advised to 
 pass sentence. 
 
 Ordered accordingly. 3 
 
 « Compare Aldrich v. People, 101 111. 16 (18S1).
 
 Sec. 1) BURGLARY. 553 
 
 CHAPTER XVII. 
 BURGLARY. 
 
 Let inquiry also be made of burglars. Such we hold to be all those 
 who feloniously in time of peace break churches, or the houses of 
 others, or the walls or gates of our cities or boroughs. Infants under 
 age, and poor people, who through hunger enter the house of another 
 for victuals under the value of twelve pence, are excepted, as are also 
 idiots and madmen, and others, who are incapable of felony; and 
 those who enter into any tenement, by way of seisin in respect of some 
 right which they think they have, are not held to be burglars. 
 
 The punishment of such felons is death. 1 
 
 Britton (NichohV Trans.) 42. 
 
 A burglar (or the person that committeth burglary) is by the com- 
 mon law a felon, that in the night breaketh and entereth into a man- 
 sion house of another, of intent to kill some reasonable creature, or 
 to commit some other felony within the same, whether his felonious 
 intent be executed or not. * * * As long as the daylight continues, 
 whereby a man's countenance may be discerned, it is called day; and 
 when darkness comes and daylight is past, so as by the light of day 
 you cannot discern the countenance of a man, then it is called night. 
 * * * This doth aggravate the offense, sith the night is the time 
 wherein man is to rest, and wherein beasts run about seeking their 
 prey. 
 
 Coke, 3 Inst. 63. 
 
 SECTION 1.— THE BREAKING. 
 
 REX v. HYAMS. 
 (Central Criminal Court, 183G. 7 Car. & P. 441.) 
 
 The prisoners were indicted for burglary in the dwelling house of 
 Jane Hart. 
 
 It appeared from the evidence of the prosecutrix that she went out, 
 leaving her window shut down, but not fastened, though she admitted 
 that there was a hasp which could have been fastened to keep it down. 
 The entry was effected by raising the window. 
 
 » "Housebreaking and arson * • • are botless." Laws of Cnut II, 64.
 
 554 BURGLARY. (Ch. 17 
 
 For the prisoners, it was objected that this was not sufficient evi- 
 dence of a breaking, as the window was not fastened when it might 
 have been, and that it was similar to that of pushing farther up a win- 
 dow left a little open, which had been held not to be a breaking. 
 
 Mr. Justice Park and Mr. Justice Coleridge were of opinion that 
 there was enough to constitute a breaking, and the prisoners were 
 convicted. 1 
 
 PEOPLE v. DUPREE. 
 
 (Supreme Court of Michigan, 1893. 98 Mich. 26, 56 N. W. 1046.) 
 
 Grant, J. The respondent was convicted of burglary under section 
 9132, How. St. 2 
 
 The theory of the prosecution was that the respondent, when in the 
 shop, either on the 6th or 7th of October (the court, in its charge 
 referred to the date as Friday, October 7th), raised the window just 
 enough to prevent the bolt from entering the slot, and there was evi- 
 dence to sustain it. It is insisted that even if this was so, and the re- 
 spondent raised the window on the following night, it did not estab- 
 lish the crime of burglary. We cannot agree with this contention. It 
 is said in Dennis v. People, 27 Mich. 151: 
 
 "If an entry is effected by raising a trap-door, which is kept down 
 merely by its own weight, or by raising a window kept in its place 
 only by pulley weight, instead of its own, or by descending an open 
 chimney, it is admitted to be enough to support the charge of break- 
 ing; and I am unable to see any substantial distinction between such 
 cases and one where an entry is effected through a hanging window 
 over a shop door, and which is only designed for light above, and 
 for ventilation, and is down, and kept down by its own weight, and so 
 firmly as to be opened only by the use of some force, and so situated 
 as to make a ladder, or something of that kind, necessary to reach it 
 for the purpose of passing through it." 
 
 We think the doctrine there enunciated covers the present case. 
 If there had been no bolt, and respondent had raised the window and 
 entered in the nighttime, under all the authorities, he would have been 
 guilty of burglary. Upon what reason can it be said that his removal 
 of the bolt, or his raising the window a fraction of an inch, in the day- 
 time, changes the character of his offense? If the owner had failed 
 
 i Accord: Removing a plant placed i<> cover an opening, Carter v. State, 
 68 Ala. 90 (1880); lifting n hook with which ;i door is fastened, Ferguson 
 v. State, 52 Neb. 482, 72 N. W. .v.»<>. 86 Am. st. Rep. 612 (1897); pushing open 
 door held in place merely by the friction of door agalnBi the sill. Sparks v. 
 State, .".l Tex. Cr. R. 86, i".> s. W. 264 (1895) : Barber v. State (T6x. Cr. App.) 69 
 s. W. 515 (1902); removing props from a door, Rose v. Commonwealth, 10 
 s. w. 245, !'■» Kv. Law Rep. 272 (1897); State v. Powell, 01 Kan. 81, 58 
 Pac. 968 (1899). 
 
 I Part of the opinion only is printed.
 
 Sec. 1) THE BREAKING. 555 
 
 to see that the bolts were in place, or if something had been accident- 
 ally placed upon the window sill, which was of slight thickness, but 
 sufficient to prevent the bolts from entering the slots, the raising of 
 the window would have been a sufficient breaking to support the 
 charge. Rex v. Hyams, 7 Car. & P. 441 ; State v. Reid, 20 Iowa, 421 ; 
 Lyons v. People, 68 111 280. How can the act be relieved of crim- 
 inality by secretly fixing the window in the daytime so that the boll 
 or lock will not be effective, and thus render the perpetration of the 
 crime more easy and certain? There is no reason in such a rule. In 
 Lyons v. People, the door was left unlocked, and the court was re- 
 quested to instruct the jury that, in order to constitute the crime, it 
 must appear that the door was secured in the ordinary way. The Su- 
 preme Court, in determining the question, said : 
 
 "We are not aware of any authority which goes to the extent of 
 these instructions. To hold that the carelessness of the owner in se- 
 curing and guarding his property shall be a justification to the bur- 
 glar or thief would leave communities very much to the mercy of this 
 class of felons. It would in effect be a premium offered for their 
 depredations, by the removal of the apprehension of punishment. 
 Whether property is guarded or not, it is larceny in the thief who 
 steals it. When a door is closed, it is burglary for any one with fe- 
 lonious intent to open it and enter the house in the nighttime without 
 the owner's consent; and it makes no difference how many bolts and 
 bars might have been used to secure it, but which were neglected." 
 
 The language of the court was perhaps too broad in stating that if 
 the window was raised any distance, but was not sufficient to permit 
 the defendant to enter, and he raised it further, it would be breaking 
 in the meaning of the law; 2 but the entire evidence was to the effect 
 that it was raised so little as not to attract the notice of the occupant. 
 We therefore think that the jury could not have been misled by the 
 language. 
 
 Judgment affirmed. 3 
 
 REX v. BRICE. 
 (Court for Crown Cases Reserved, 1821. Russ. & R. 450.) 
 
 The prisoner was tried before Mr. Justice Burrough at the Lent 
 Assizes for the County of Dorset, in the year 1821, for burglariously 
 breaking and entering the dwelling house of George Smith in the 
 night of the 2d of December, 1820, with intent feloniously to steal 
 the goods and chattels of the said George Smith therein being. 
 
 It appeared, by the evidence of the wife of the prosecutor, that whilst 
 
 2 A late case, Claiborne v. State, 113 Tenn. 261. S3 S. W. 352, 68 L. R. A. 
 859, 106 Am. St. Rep. 833 (1004), holds this to be a breaking, 
 s Compare Rex v. Smith, Russ. & Ry. 417 (1S20).
 
 "j56 burglary. (Ch. 17 
 
 sitting in a room adjoining the shop (part of the dwelling house of 
 her husband), in which were various goods, the stock of her hus- 
 band's trade, she heard, about 12 at night, a noise in the shop; that 
 she took a candle and went into the shop, and, perceiving some soot 
 fall from the chimney, she looked up and saw a man lying across the 
 chimney, just above the mantelpiece. 
 
 It appeared that the man had not otherwise been in the shop, and 
 the chimney had no communication with any other room in the house. 
 
 An alarm was made, and a man, who proved to be the prisoner, 
 was immediately seen to come out at the top of the chimney. He was 
 pursued and immediately apprehended. 
 
 The prisoner was by trade a chimney sweeper, and had shortly be- 
 fore been employed by the prosecutor to sweep the chimney of the shop, 
 and also that of the sitting room, being all the chimneys in the house. 
 
 The learned judge, not being satisfied that the evidence was suffi- 
 cient to support the charge of breaking and entering into the dwelling 
 house, he desired the jury to consider whether they were satisfied that 
 the prisoner's intention was to steal goods in the shop, and if they 
 thought so he advised them to find him guilty, and he informed them 
 that he should reserve the other point for the opinion of the judges. 
 
 The jury found the prisoner guilty. 
 
 In Easter Term, 1821, the judges met and considered this case. 
 Ten of the judges, viz., Best, J., Garrow, B., Park, J., Baylry, J., 
 Wood, B., Graham, B., Richards, C. B., Dallas, C. J., and Abbott, 
 L. C. J., held the conviction right. They were of opinion that the chim- 
 ney was part of the dwelling house, that the getting in at the top was 
 a breaking of the dwelling house; and that the prisoner, by lowering 
 himself in the chimney, made an entry into the dwelling house. Hol- 
 royd, J., and Burrough, J., thought the prisoner could not be said 
 to have broken and entered the dwelling until he was below the chim- 
 ney piece. 1 
 
 REX v. LEWIS. 
 
 (Hereford Assizes, 1827. 2 Car. & P. G28.) 
 
 The prisoners were indicted for a burglary in the house of John 
 Verry and stealing money, etc. The house had been secured on the 
 night before, and the thieves entered through a cellar window. This 
 window, which was boarded up, had in it a round aperture of con- 
 siderable size, to admit light into (lie cellar, and through this aperture 
 one of the prisoners thrust his head, and by the assistance of the other 
 he thus entered the house. The prisoners did not enlarge the aper- 
 ture at all. 
 
 i Crawling through small hole under the sin is a breaking, Knotte v. state 
 (Tex. Cr. App.) 82 s. \v. B82 (1806). See, also, Presaley v. state, m Ala. 84, 
 ■jo South. t>i7 (lS'j.^.
 
 Sec. 1) THE BREAKING. 557 
 
 Justice, for the prisoners, contended that this was an open window, 
 and therefore it was no burglary to enter at it. 
 
 Curwood, contra, submitted that this aperture came within the same 
 reasoning as the cases of burglary where the thief came down a chim- 
 ney, because it was as much closed as the nature of it would admit. 
 
 Vaughan, B. Do you think that, if a person leaves a hole in the 
 side of his house big enough for a man to walk in, a person entering 
 at it with intent to steal goods would be guilty of a burglary? I think 
 not, and I am of opinion that this is not a burglary. 
 
 The jury, under his Lordship's direction, acquitted the prisoners of 
 the burglary. 1 
 
 LE MOTT'S CASE. 
 
 (Old Bailey, 16—. Kelyng, 42.) 
 
 At the Sessions I inquired of Le Mott's Case, which was adjudged 
 in the time of the late troubles, and my Brother Wyld told me that 
 the case was this : That thieves came with intent to rob him, and 
 finding the door lockt up, pretending they came to speak with him, and 
 thereupon a maid servant opened the door, and they came in and robbed 
 him, and this being in the nighttime this was adjudged burglary and 
 the persons hanged, for their intention being to rob, and getting the 
 door open by a false pretense, this was in fraudem legis, and so they 
 were guilty of burglary, though they did not actually break the house, 
 for this was in law an actual breaking, being obtained by fraud to 
 have the door opened, as if men pretend a warrant to a constable, and 
 bring him along with them, and under that pretense rob the house, if 
 it be in the night, this is burglary. 2 
 
 i In Marshall v. State, 94 Ga. 589, 20 S. E. 432 (1894), it was held that enter- 
 ing a ginhouse through a hole made for the passage of a band used in oper 
 ating the machinery, by pushing aside the band, was burglary. 
 
 2 Accord: Ducher v. State, 18 Ohio, 308 (1849); State v. Mordecai, 6S N. 
 C. 207 (1873) ; Johnson v. Commonwealth, 85 Pa. 54, 27 Am. Rep. G22 (1877) ; 
 Nicholls v. State, 68 Wis. 416, 32 N. W. 543, 60 Am. Rep. 870 (1SS7). Cf. 
 State v. Henry, 31 N. C. 463 (1849). Entry obtained by intimidation; State 
 v. Foster, 129 N. C. 704, 40 S. E. 209 (1001). 
 
 Before St. 12 Anne, c. 7, it was doubtful whether, if the entry were without 
 breaking, a breaking out in order to escape was burglary. This statute declar- 
 ed it to be burglary. See 2 East, P. C. 4S9. Similar statutes have been enacted 
 in the United States. See Pen. Code N. Y., § 498. In the absence of statutory 
 provisions, such breaking is held not to be burglary in Adkinson v. State, 
 5 Baxt. (Term.) 569, 30 Am. Rep. 69 (1875); Brown v. State, 55 Ala. 123, 
 28 Am. Rep. 693 (1876) ; Rolland v. Commonwealth, S2 Pa. 300, 22 Am. Rep. 
 758 (1876). Contra: State v. Ward, 43 Conn. 489, 21 Am. Rep. 665 (1S76) ; 
 State v. Bee, 29 S. C. 81, 6 S. E. 911 (1888).
 
 
 558 BURGLARY. (Ch 1? 
 
 SECTION 2.— THE ENTRY. 
 
 REX v. DAVIS. 
 (Court for Crown Cases Reserved, 1823. Russ. & R. 499.) 
 
 The prisoner was tried at the Old Bailey Sessions, in January, 1823, 
 before the Chief Baron Richards, for burglary in the dwelling house 
 of Montague Levyson. 
 
 The prosecutor, Levyson, who dealt in watches and some jewelry, 
 stated that on the 2d of January, about 6 o'clock in the evening, as 
 he was standing in Pall Mall opposite his shop, he watched the pris- 
 oner, a little boy, standing by the window of the shop, which was part 
 of the prosecutor's dwelling house, and presently observed the pris- 
 oner push his finger against a pane of the glass in the corner of the 
 window. The glass fell inside by the force of his finger. The prose- 
 cutor added that, standing as he did in the street, he saw the forepart 
 of the prisoner's finger on the shop side of the glass, and he instantly 
 apprehended him. 
 
 The jury convicted the prisoner; but the learned judge, having some 
 doubt whether this was an entry sufficient to make the offense a bur- 
 glary, submitted the case to the consideration of the judges. 
 
 In Hilary Term, 1823, the case was taken into consideration by the 
 judges, who held that there was a sufficient entry to constitute bur- 
 glary. 
 
 REGINA v. O'BRIEN. 
 (Central Criminal Court, ISoO. 4 Cox, C. C. 400.) 
 
 The prisoner was indicted for burglary. Evidence was given thai 
 the prisoner had lifted up the sash of a window, and that for the pur- 
 pose of doing so his hand was within the room of the dwelling house. 
 There was no further proof of entry. 
 
 O'Brien, for the prisoner, contended that, if the hand was there for 
 the mere purpose of opening the sash, there was no sufficient entry 
 proved. 
 
 T.uourd, J. We have been looking into the authorities, and it 
 seems sufficient if the hand, or any part of the person, is within the 
 house for any purpose. 
 
 PatTESON, J. Where an instrument is used, the law appears to be 
 different. There the instrument must be within the premises, not only 
 for the purpose of making an entry, but also for tin- purpose of effect- 
 ing the contemplated felony, as where a hook is introduced for the pur- 
 pose of taking away good . Or a pistol put in for the purpose of killing 
 the inmates of the house, there the entry is sufficient; but, if the in-
 
 Sec. 2) THE ENTRY. 559 
 
 strument is merely used for the purpose of making an entry, then the 
 proof of the entry fails. We think there is sufficient evidence here, 
 and the case must go to the jury. 
 Not guilty. 
 
 STATE v. CRAWFORD. 
 
 (Supreme Court of North Dakota, 1899. 8 N. D. 539, 80 N. W. 193, 46 L. R. A. 
 
 312, 73 Am. St. Rep. 772.) 
 
 John Crawford was indicted for burglary in the third degree and 
 acquitted by direction of the court, and the state appeals. 
 
 Waixin, J. 1 There is no conflict of evidence in the case, nor is 
 there any dispute between counsel as to the facts. The evidence shows 
 that at the time and place stated in the information there was a cer- ■ 
 tain building used as a granary, in which there was stored in bins 
 about 800 bushels of wheat, and that in the nighttime three holes were 
 bored with a two-inch auger through the walls of the granary and 
 into one of the wheat bins. The three holes were so connected together 
 as to make one large opening through the walls, and into the wheat 
 bin. It further appears that there was a depression in the mass of 
 wheat directly over the aperture made by the auger, indicating that 
 wheat had passed out of the bin through such aperture to the amount 
 of several bushels, and, further, that some wheat was spilled on the 
 ground directly under the opening through the wall of the granary. 
 Other evidence tended to connect the defendant with the felonious 
 asportation and sale of the grain. Upon this evidence the question , 
 is presented whether the state had made out a prima facie case when 
 the evidence closed and the state rested its case. 
 
 Counsel most strenuously contends that inasmuch as the evidence 
 shows that the grain was removed through the opening made with an 
 auger, and not otherwise, it therefore appears affirmatively that the 
 defendant did not and could not have gone into the building, and hence 
 that the state failed to establish the essential element of an entry. 
 We cannot accept this conclusion from the evidence. It is manifest 
 that the auger, guided by the person who bored the holes, passed 
 through the walls of the granary into the mass of wheat, therein, and 
 also manifest that it was the auger operating within the building which 
 set the law of gravitation in motion, and thereby enabled the man 
 guiding the auger to remove the property from within the building 
 to the outside. Using the auger for the double purpose of breaking 
 and taking possession of the property within the building brings the 
 case within the rule announced in the authorities hereafter cited. 
 
 The order directing an acquittal will be reversed upon the ground 
 that it was error to hold that the evidence did not tend to establish an 
 entry. 
 
 i Part of the opinion is omitted. 

 
 560 BURGLARY. (Cll. 17 
 
 REX v. GRAY. 
 
 (Old Bailey, 1721. 1 Strange, 481.) 
 
 One of the servants in the house opened his lady's chamber door 
 (which was fastened with a brass bolt) with design to commit a rape; 
 and King, C. J., ruled it to be burglary, and the defendant was con- 
 victed and transported. 1 
 
 STATE v. MOORE. 
 
 (Superior Court of Judicature of New Hampshire, 1841. 12 N. H. 42.) 
 
 Indictment for breaking and entering the house of Isaac Paddle- 
 ford, at Lyman, in the nighttime, on the 19th day of November, 1840, 
 with intent to steal, and stealing therefrom certain pieces of money. 
 
 It appeared in evidence that the prisoner went to the house, which 
 is a public house, and asked for and obtained lodging for the night, 
 and that he took the money from a box in the desk in the barroom in 
 the course of the night. 
 
 The jury were instructed that upon this indictment the prisoner 
 might be convicted of burglary, of entering in the nighttime and steal- 
 ins - , or of larceny; that if the door of the barroom were shut, and the 
 prisoner left his own roOm in the nighttime, and opened the door of the 
 barroom, or any other door in his way thereto, except his own door, 
 and stole the money, he was guilty of burglary; but that if he left 
 his own room in the night, and stole the money from the barroom, 
 without opening any door on his way thereto, except his own door, 
 he was guilty of entering in the nighttime and stealing. The jury 
 found the prisoner guilty of entering in the nighttime and stealing. 
 
 Gilchrist, J. 2 It is said that, as the prisoner was lawfully in the 
 house, he cannot be convicted of the offense of entering in the night- 
 time with intent to steal. 
 
 An innkeeper, holding out his inn "as a place of accommodation 
 for travelers, cannot prohibit persons who come under that character, 
 in a proper manner, and at suitable times, from entering, so long as 
 he lias the means of accommodation for them." Markham v. Brown, 
 8 X. II. 528, 31 Am. Dec. 209. As he has authority to enter the house, 
 so he may enter any of the common public rooms. Markham v. 
 .vn. The barroom of an inn is, from universal custom, the most 
 public room in the house; and whether a traveler may, without per- 
 
 i Accord: Edmonds' Case, Button, 20 (1617); Bex v. Johnson, 2 East, P. 
 Q 188 (1786); Res v. Wenmouth, 8 Cor, 0. C. 848 (1860); state v. Scripture, 
 •ii^ \ 11 485 (1861); Rolland v. Commonwealth, 85 Pa. 66, 27 Am. Rep. 
 626 (1877); State v. Howard, 64 S. O. 844, 42 B. B. 17:'.. 58 L. R, a. G85, 
 
 92 Am. St. Rep. KOI (IIMCJ). CI'. K.'K. V. Davis, G Cox, O. C. 369 (1854). 
 
 3 Part of the opinion is omil ted.
 
 SCC. 3) THE PLACE. 56] 
 
 mission, enter any of the private rooms or not, he has clearly a right 
 to enter the barroom. 
 
 "It is not a burglarious breaking and entry, if a guest at an inn 
 open his own chamber door, and takes and carries away his host's 
 goods, for he has a right to open his own door, and so not a bur- 
 glarious breaking." 1 Hale, P. C. 553, 554. 
 
 If a burglary could not be committed because the party had a right 
 to open his own door, notwithstanding the subsequent larceny, the 
 same principle would seem to be applicable here, where the prisoner 
 had a right to enter the house, and where, by parity of reasoning, his 
 subsequent larceny would not make his original entry unlawful. 
 
 For these reasons, the judgment of the court is that the verdict be 
 set aside and a 
 
 New trial granted. 
 
 SECTION 3.— THE PLACE. 
 
 ANONYMOUS. 
 (Court for Crown Cases Reserved, 1690. Fost. C. L-. 108.) 
 
 At a meeting of the judges upon a special verdict in January, 1690, 
 they were divided upon the question whether breaking open the door 
 of a cupboard let into the wall of the house was burglary or not. 
 Hale saith that such breaking is not burglary at common law. 1 
 
 RESOLUTION. 
 
 (King's Bench, 1593. Poph. 52.) 
 
 It was agreed by all the Justices and Barons of the Exchequer, upon 
 an assembly made at Sergeant's Inn, after search made for the an- 
 cient precedents, and upon good deliberation taken : If a man have 
 two houses, and inhabit sometimes in one, and sometimes in the other, 
 if that house in which he doth not then inhabit be broken in the 
 night, to the intent to steal the goods then being in the house, that 
 this is burglary, though no person be then in the house. * * * And 
 the breaking of a church in the night to steal the goods there is bur- 
 glary, although no person be in it, because this is the place to keep the 
 goods of the parish. 2 And in the same manner the house of every 
 one is the proper place to preserve his goods, although no person be 
 there. 
 
 i Accord: State v. Wilson, 1 N. J. Law, 439, 1 Am. Dec. 216 (1793). 
 2 Coke gives as the reason: "Ecclesia est domus mansionalis omnipotent'* 
 Dei." 3 Inst. 64. 
 
 Mik.Cb.L.-- 36
 
 562 burglary. (Ch. 17 
 
 ANONYMOUS. 
 
 (Winchester Assizes, 1618. Hut. 33.) 
 
 At the assizes holden at Winchester in the last circuite, before the 
 Lord Chief Baron Tanfield (it being the third circuite which I went 
 with him) it was a question, whether one which had a shop in the 
 dwelling house of another, and he which had the shop worked there- 
 in in the day, but never lodged there, and yet he had a house out of 
 the shop to the street, if this shop be broken in the night and divers 
 goods stolen out thereof, if it be burglary. And the Lord Chief Baron 
 and I resolved that it was no burglary, because that by the severance 
 thereof by lease to him which had it as a shop, and his not inhabiting 
 therein, it was not any mansion house or dwelling house, and ergo no 
 burglary, but ordinary felony. 
 
 REX v. GARLAND. 
 (Court for Crown Cases Reserved, 1776. 1 Leach [4th Ed.] 144.) 
 
 At the Gaol Delivery holden at the Castle of Taunton in and for 
 the county of Somerset, on the 13th of March, 1776, before Mr. 
 Baron Eyre and Mr. Baron Hotham, William Garland was indicted 
 for burglariously breaking and entering the dwelling house of George 
 Shore with intent to commit a felony. 
 
 The jury found the following verdict: "That the prisoner broke 
 and entered in the nighttime an outhouse in the possession of George 
 Shore, and occupied by him with his said dwelling house, and separated 
 therefrom by an open passage eight feet wide, with intent to commit 
 a felony. That the said outhouse is not connected with the said 
 dwelling house by any fence inclosing both the said outhouse and 
 dwelling house, but whether," etc. 
 
 This case was referred to the consideration of the judges; and in 
 the Easter Term following they were unanimously of opinion that, 
 from the manner in which the jury had found the facts, it was im- 
 possible to consider this outhouse as part of the dwelling house, for 
 they should have found it parcel of the dwelling house if it were so; 
 for the outhouse, being so separated from the dwelling house and 
 not within the same curtilage or common fence, was not therefore pro- 
 tected by the bare fact of its being so occupied with it at the same 
 time, and therefore, as the burglary was the only offense charged in 
 the indictment, the prisoner must be acquitted. 1 
 
 i Domus manslonalls doth qoI only Include the dwelling house, but also 
 
 the outhouses th.it are parcel thei f, as barns, stables, cow houses, dairy 
 
 houses, if they are parcel of the messuage, though they arc doI under the 
 k:i tin- roof, adjoining or contiguous to it. Co. P. Q <">t; Dalton, 254; i Bale, 
 568 And it whs agreed by all the Judges In the time of L. C. J. Hyde, that
 
 Sec 3) THE PLACE. 663 
 
 REX v. HARRIS. 
 (Old Bailey, 1795. 2 Leach [4th Ed.] 701.) 
 
 At the Old Bailey in October Session, 1795, John Harris was tried 
 before the Recorder of London for burglariously breaking and enter- 
 ing the dwelling house of Henry William Dinsdale, on the 6th of 
 October, and stealing therein a gold watch, value £10, the goods of 
 the said William Dinsdale. 
 
 It appeared in evidence that Mr. Dinsdale had lately taken the 
 house in Queen street, in Cheapside, but had never slept in it himself ; 
 but on the night of the burglary, and for six nights before, had pro- 
 cured two hairdressers, of the names of Thomas Nash and James 
 Chamberlain, who resided at St. Ann's lane, near Maiden lane, in 
 Wood street, but in no situation of servitude to the prosecutor, to 
 sleep in this house for the purpose of taking care of the goods and 
 merchandise belonging to Mr. Dinsdale, which were deposited in the 
 house. 
 
 The Court was of opinion that as the prosecutor had only so far 
 taken possession of the house as to deposit certain articles of his trade 
 therein, but had neither slept in it himself, nor had any of his serv- 
 ants, it could not, in contemplation of law, be called his dwelling house. 
 
 The jury, therefore, under the direction of the court, found him 
 guilty of the larceny only, but not guilty of stealing in a dwelling 
 house, or of the burglary; and he was sentenced to transportation 
 for seven years. 
 
 QUINN v. PEOPLE. 
 
 (Court of Appeals of New York, 187S. 71 N. Y. 561, 27 Am. Rep. 87.) 
 
 Folger, J. 1 The plaintiff in error was indicted of the crime of 
 burglary in the first degree, under the section of the Revised Stat- 
 utes defining that crime. 2 Rev. St. (1st Ed.) p. 66S, pt. 4, c. 1, tit, 
 2, § 10, subd. 1. The crime, as there defined, consists in breaking 
 into and entering in the nighttime, in the manner there specified, the 
 dwelling house of another, in which there is at the time some human 
 being, with the intent to commit some crime therein. The evidence 
 given upon the trial showed clearly enough the breaking and enter- 
 
 the breaking and entering, in the nighttime, a bake house, eight or nine 
 yards distant from the dwelling house, and only a pale reaching between 
 them, was burglary. Castle's Case, 1 Hale, 558. But if the outhouse be far 
 remote from the dwelling house, so as not to be reasonably esteemed parcel 
 thereof, as if it stand a bowshot off, and not within or near the curtilage of 
 the chief house, it is not domus mansionalis, nor any part thereof. Year Book, 
 2 Edw. VI, Bro. Cor. 180, 1 Hale, 559. See. also. Green's Case, Old Bailey. 
 February Session, 1789, before Mr. Baron Thompson and Mr. Justice Grose. 
 Rep. 
 
 i Part of the opinion is omitted.
 
 564 BURGLARY. (Ch. 17 
 
 ing and the criminal intent. The questions mooted in this court are 
 whether it is legally proper, in an indictment for burglary of a dwelling 
 house, to aver the ownership of the building in a partnership, and 
 whether the proof showed that the room entered was a dwelling house 
 within the intent of the statute. 
 
 As to the second question : It is needed only to note that there was 
 an internal communication between the two stores, in the lower stories 
 of the buildings, but none between them and the upper rooms, in which 
 one of the partners and other persons lived. The room into which 
 the plaintiff in error broke was used for business purposes only, but 
 it was within the same four outer walls, and under the same roof as 
 the other rooms of the buildings. To pass from the rooms used for 
 business purposes to the rooms used for living in, it was necessary to 
 go out of doors into a yard fenced in, and from thence upstairs. The 
 unlawful entering of the plaintiff in error was into one of the lower 
 rooms used for trade, and into that only. The point made is that as 
 there was no internal communication from that room to the rooms 
 used for dwellings, and as that room was not necessary for the dwelling 
 rooms, there was not a breaking into a dwelling house, and hence 
 the act was not burglary in the first degree as defined by the Revised 
 Statutes as cited above. In considering this point, I will first say, that 
 the definition of the crime of burglary in the first degree, given by 
 the Revised Statutes, does not, so far as this question is concerned, 
 materially differ from the definition of the crime of burglary as given 
 at common law, to wit, "a breaking and entering the mansion house 
 of another in the night, with intent to commit some felony within the 
 same. * * * " 2 Russ. on Cr. p. 1, § 785. It will, therefore, throw 
 light upon this question to ascertain what buildings or rooms were, at 
 common law, held to be dwelling houses or a part thereof, so as to 
 be the subject of burglary; for, as far as the Revised Statutes as al- 
 ready cited are concerned, what was a dwelling house or a part there- 
 of at common law must also be one under those statutes. Now, at 
 common law, before the adoption of the Revised Statutes, it had 
 been held that it was not needful that there should be an internal 
 communication between the room or building in which the owner 
 dwelt, if the two rooms or buildings were in the same inclosure, and 
 were built close to and adjoining each other. Case of Gibson, Mut- 
 ton & Wiggs, Leach's Cr. Cas. 320 (Case 165), recognized in People 
 v. Parker, 4 Johns. 123. In the case from Leach, there was a shop 
 built close to a dwelling house in which the pro r resided. There 
 
 no internal communication between them. No person slept in 
 the shop. The only door to it was in the courtyard before the house 
 and shop, which yard was inclosed by a brick wall, including them 
 
 within it, with a gate in tin- wall serving for ingress to them. The 
 
 king and entering was into the -hop. Objection was taken thai it 
 
 could not be considered the dwelling house of the prosecutor, and ilie 
 
 rved tor the i leration of the twelve judges. They
 
 Sec. 3) THE PLACE. 50," 
 
 were all of the opinion that the shop was to be considered a part of the 
 dwelling house, being within the same building and the same roof, 
 though there was only one door to the shop, that from the outside, 
 and that the prisoners had been duly convicted of burglary in a dwelling 
 house. The case in Johnson's Reports, supra, is also significant, from 
 the facts relied upon there to distinguish it from the case in Leach, 
 supra. Those facts were that the shop entered, in which no one slept 
 though on the same lot with the dwelling house, was 20 feet from it 
 not inclosed by the same fence, nor connected by a fence, and both 
 open to a street. The court said that they were not within the same 
 curtilage, as there was no fence or yard inclosing both, so as to bring 
 them within one inclosure. Therefore the case was within that of 
 The King v. Garland, 1 Leach, Cr. Cas. 130 (or 171), Case 77. It 
 has been urged, in the consideration of the case in hand, that though 
 the common law did go farther than the cases above cited, and did 
 deem all outhouses, when they were within the same inclosure as the 
 dwelling house, a part of it, yet that they must, to be so held, be build- 
 ings or rooms the use of which subserved a domestic purpose, and 
 were thus essential or convenient for the enjoyment of the dwelling 
 house as such. Gibson's Case, supra, would alone dispose of that. 
 The building there entered was not only of itself a shop for trade, 
 but it was in the use and occupation of a person other than the owner 
 of the dwelling house. The books have many cases to the same end. 
 Rex v. Gibbons & Kew, Russ. & Ry. 442, the case of a shop ; Robert- 
 son's Case, 4 City Hall Rec. 63, also a shop, with no internal com- 
 munications with the dwelling house; Rex v. Stock et al., Russ. & 
 Ry. 185, a counting room of bankers; Ex parte Vincent, 26 Ala. 145, 
 62 Am. Dec. 714, one room in a house used as a wareroom for goods ; 
 Rex v. Witt, Ry. & M. 248, an office for business, below lodging 
 rooms. Indeed, the essence of the crime of burglary at common law 
 is the midnight terror excited, and the liability created by it of danger 
 to human life, growing out of the attempt to defend property from 
 depredation. It is plain that both of these may arise when the place 
 entered is in close contiguity with the place of the owner's repose, 
 though the former has no relation to the latter by reason of domestic 
 use or adaptation. Besides, the cases have disregarded the fact of 
 domestic use, necessity, or convenience, and have found the criterion 
 in the physical or legal severance of the two departments or build- 
 ings. Rex v. Jenkins, Russ. & Ry. 244; Rex v. Westwood, Id. 495, 
 where the separation of the buildings was by a narrow way, both of 
 them being used for the same family domestic purposes. It is not to 
 be denied that there are some cases which do put just the difference 
 above noted, as now urged for the plaintiff in error (State v. Lang- 
 ford, 12 N. C. 253 ; State v. Jenkins, 50 N. C. 430 ; State v. Bryant 
 Ginns, 1 Nott & McC. [S. C] 583), though, in the case last cited, it 
 is conceded that if a store is entered, which is a part of a dwelling 
 house, by being under the same roof, the crime is committed; and it
 
 566 BURGLARY. (Ch. 17 
 
 must be so, if it is the circumstance of midnight terror in breaking 
 open a dwelling house which is a chief ingredient of the crime of 
 burglary, and it is for that reason that barns and other outhouses, if 
 in proximity to the mansion house, are deemed quasi dwelling houses, 
 and entitled to the same protection (State v. Brooks, 4 Conn. 446-449). 
 Coke, 3 Inst. 64, is cited to show that only those buildings or places 
 which in their nature and recognized use are intended for the domestic 
 comfort and convenience of the owner may be the subject of bur- 
 glary at common law ; but in the same book and at the same page the 
 author also says : "But a shop wherein any person doth converse" — 
 i. e., be employed or engaged with; Richardson's Die. "in voce" — 
 "being a parcel of a mansion house, or not parcel, is taken for a man- 
 sion house." So Hale is cited (1 P. C. 558) ; and it is there said that 
 "to this day it is holden no burglary to break open such a shop." But 
 what does he mean by that phrase? That appears from the authority 
 which he cites, Hutton's Reps. 33, where it was held no burglary to 
 break and enter a shop, held by one as a tenant in the house of another, 
 in which the tenant worked by day, but neither he nor the owner 
 slept by night. And the reason given is the one above noticed, and 
 often recognized by the cases, that by the leasing there was a severance 
 in law of the shop from the dwelling house. But Hale also (1 P. C. 
 .557) cites as law the passage from the Institutes above quoted. Other 
 citations from text-books are made by the plaintiff in error. They will 
 be found to the same effect, and subject to the same distinction as 
 those from Coke and Hale. And see Rex v. Gibbons et al., supra : 
 Rex v. Richard Carroll, 1 Leach, Cr. Cas. 272 (Case 115). That there 
 must be a dwelling house, to which the shop, room, or other place 
 entered belongs as a part, admits of no doubt. To this effect, and no 
 more, are the cases cited by the plaintiff in error of Rex v. Harris, 
 2 Leach, 701, Rex v. Davies, alias Silk, Id. 876, and the like. There 
 were cases which went further than anything I have asserted. They 
 did not exact that the building entered should be close to or adjoining 
 (he dwelling house, but held the crime committed if the building en- 
 tered was within the same fence or inclosure as the building slept in. 
 And the dwelling house in which burglary might be committed was 
 held formerly to include outhouses — such as warehouses, barns, stables, 
 cow houses, dairy houses — though not under the same roof or joining 
 contiguous to the house, provided they were parcel thereof. 1 Rus<. 
 on Cr. *799, and authorities cited. Any outhouse within the curtilage 
 or same common fence with the dwelling house itself was considered 
 to be parcel of it, on the ground that the capital house protected and 
 privileged all its branches and appurtenants, if within the curtilage or 
 home, tall. State v. Twitty, 2 N. C. 102; State v. Wilson, Id. 242. 
 See, also, State v. Ginns, 1 Nott & McC. (S. C.) 585, where this is 
 conceded to be the common law. See note "a" to Garland's Ca i 
 upra. 
 Tt seems clear thai al common law the shop which the plaintiff in 
 
 error broke into would have been held a pari "I" a dwelling house.
 
 Sec. 3) THE PLACE. 667 
 
 I am brought to the conclusion that upon the facts proven the plain- 
 tiff in error was properly indicted and convicted of the statutory crime 
 of burglary in the first degree. 
 
 Allen, Miller, and Earl, JJ., concur. Rapallo and Andrews, 
 ]]., dissent. Church, C. J., not voting. 
 
 Judgment affirmed.
 
 
 568 arson. (Ch. 18 
 
 CHAPTER XVIII. 
 ARSON. 
 
 Let inquiry also be made of those who feloniously, in time of peace, 
 have burnt others' corn or houses, and those who are attainted thereof 
 shall be burnt, so that they may be punished in like manner as they 
 have offended. 
 
 Britton (Nicholls' Trans.) 47. 
 
 It extendeth not only to the very dwelling house, but to all out- 
 houses that are parcel thereof, though not contiguous to it, or under 
 the same roof, as in case of burglary. 
 
 1 Hale, P. C. 567. 
 
 To a charge of arson one may say that the event was the outcome 
 of mischance and not of forethought felony. 
 
 Mirror of Justices (Sel. Soc.) c. 17. 
 
 If A. shoot unlawfully, in a hand gun, suppose it to be at the cattle 
 or poultry of B., and the fire thereof sets another's house on fire, this 
 is not felony, for though the act he was doing were unlawful, yet he 
 had no intention to burn the house thereby, against the opinion of 
 Dalt. p. 270, c. 105. But if A. have a malicious intent to burn the 
 house of B., and in setting fire to it burns the house of B. and C, or 
 the house of B. escapes by some accident, and the fire takes in the 
 house of C. and burnetii it, though A. did not intend to burn the house 
 of C, yet in law it shall be said the malicious and willful burning of 
 the house of C, and he may be indicted for the malicious and willful 
 burning of the house of C. 
 
 1 Hale, P. C. 5G9. 
 
 REX v. HARRIS. 
 
 (King's Bench, IT").",. Fost. C. L. 113.) 
 
 At Aylesbury, Lent Assizes, 1T58, before Mr. Justice Denison, 
 Elizabeth Harris, a girl of II years of age and of sufficient understand 
 ing for her years, was indicted for maliciously setting lire to and 
 burning a dwelling house in the po on of Edward Stokes, and 
 
 Anne, the wife of William Course, was indicted as an accessory to the 
 felony before the fact. 
 
 The prisoner Elizabeth was the daughter of the prisoner Anne by 
 a former husband, John Harris. It appeared in evidence at the trial 
 that John 1 tarris died seised of the equity of n demption of tlii h 
 and of another adjoining to it, subject to a mortgage term for
 
 ARSON. 5G9 
 
 and that the equity descended to his eldest son, a child left with other 
 children under the care of their mother, the prisoner Anne, who was 
 entitled to dower out of these houses, but no dower was ever assigned; 
 that Anne, having the care of her son and his estate, let these houses 
 to Edward Stokes at the rent of £5 a year, and received the rent for 
 some time, but, having a large family of children, she was obliged to 
 ask relief of the parish where she lived; that she was denied such 
 relief on account of these houses, the parishioners insisting that the 
 overseers of the poor should be let into the receipt of the rent before 
 she should be entitled to any parochial relief; that thereupon she 
 frequently declared she would set the housing on fire if the parish 
 did not relieve her; that she had young children whom the parish 
 could not punish, though they might punish her, and she would order 
 the least child she had who could carry a coal of fire to burn the 
 housing down ; and many other declarations of the like kind she made, 
 which discovered an obstinate resolution in her to burn the houses 
 rather than submit to the terms the parishioners insisted on. 
 
 It appeared further that the prisoner Elizabeth set the house on fire 
 by the direction of the prisoner Anne, who went from home on pur- 
 pose to be absent at the time the fact was committed, and that no other 
 house was burnt. 
 
 The jury found both the prisoners guilty. But a doubt arising by 
 reason of the interest the prisoner had in the house, Mr. Justice Deni- 
 son thought proper to respite judgment in order to take the opinion 
 of the judges on the case. 
 
 July 2, 1753. At a meeting of the judges at the Chief Justice's 
 chambers it was unanimously agreed that both the prisoners are guilty 
 of felony. The only doubt was with regard to the interest the prisoner 
 Anne had in the house, and it was grounded on the reasoning in 
 Holmes' Case ; for had she had such estate in the house as would have 
 cleared her of the charge of felony, the prisoner Elizabeth, who acted 
 by her directions, could not have been guilty of felony. 
 
 But all the judges agreed that the prisoner Anne's title to dower 
 was not such an interest as could bring her within the rule in Holmes' 
 Case. Holmes had the possession by legal title, and during the con- 
 tinuance of his lease could maintain his possession against all mankind, 
 and therefore the house might in a limited sense be called his own ; 
 but in the present case the possession was in Edward Stokes under a 
 demise from Anne in behalf of her son, and subject to a yearly rent 
 which she received. And her title to dower, had Edward Stokes' in- 
 terest been out of the case, did not so much as give her a right of 
 entry, it being a bare right of action. 
 
 Mr. Justice Denison said that he had no doubt upon him from the 
 beginning; but it being a new case, and some of the bar being doubt- 
 ful, he thought it advisable to take the opinion of the judges. 
 
 At the next assizes judgment of death was pronounced upon both 
 the prisoners, and Anne was executed; but Elizabeth, being young
 
 570 arson. (Ch. 18 
 
 and acting under her mother's direction, was reprieved and recom- 
 mended to mercy on condition of transportation. 
 
 It was said in the debate of this case by some of the judges, and not 
 denied by any, that had Anne been seised of the freehold and inherit- 
 ance of the house, and Stokes in possession under a lease, it would 
 have been felony in Anne to have burnt it; otherwise all tenants and 
 their concerns would be very much at the mercy of their landlords. 1 
 
 The principle three of the judges went upon in Holmes' Case (for 
 Croke did not concur in the judgment) doth seem to warrant this 
 opinion. They considered the house then under consideration as the 
 property of Holmes, as his own house, by reason of the estate he had 
 in it under his lease. Croke did not dispute the principle, but argued 
 against the conclusion the other judges drew from it; and, if this be 
 so, I do not see why it may not with strict legal propriety be said of 
 a reversioner, who should maliciously set fire to houses in the posses- 
 sion of his tenants under leases from himself or his ancestors, that he 
 aedes alienas combussit. 
 
 REX v. GOWEN. 
 (King's Bench, 1786. 1 Leach [4th Ed.] 462, note.) 
 
 William Gowen was convicted before L. C. B. Skinner, of arson. 
 The house he burned was rented by one Richard Dobney, named in 
 the first count as the owner, and let by him from year to year to the 
 parish officers of Laxfield, who paid the rent for it, and who were, at 
 the time of burning the house, the persons named (individually) in 
 the third count of the indictment. The prisoner was a parish pauper, 
 and had been put into the house by the overseers to live there. He had 
 the sole possession and occupation of it without paying any rent, and 
 was resident therein with his family at the time the fact was commit- 
 ted, and on reference to the judges they all held that the prisoner had 
 no interest in the house, but was merely a servant, and therefore it 
 could not be said to be his house, but that the overseers had the pos- 
 session of it by means of his occupation, and they accordingly held 
 that he had been properly convicted. 2 
 
 i See accord: Sullivan v. State, 5 Stew. & P. (Ala.) 175 (1834) ; Erskine v. 
 Commonwealth, 8 Grat. (Va.) 624 (1851); State v. Toole, 29 Conn. 342, 76 
 Am Dec. 602 (I860); Bannlgan v. State, 131 Ala. 29, 31 South. 89 (1901). 
 
 2 Compare Rex y. Wall is, 1 Moody, 344 (lS^)-
 
 ARSON. 571 
 
 REGINA v. RUSSELL. 
 
 (Berkshire Assizes, 1842. Car. & M. 541.) 
 
 Arson. The prisoner was indicted for maliciously setting fire to 
 the house of Ann Wright, at Old Windsor. 
 
 On the part of the prosecution Miss Wright was called. She said : 
 "The prisoner was in my service. Very early on the morning of the 
 4th of December, I perceived smoke and got up, and on my going 
 down stairs I found a small fagot lighted and burning on the boarded 
 floor of the kitchen, about four feet from the hearthstone. I took up 
 the burning wood and put it into the grate. A part of the boards of 
 the kitchen floor was scorched black, but not burnt. The fagot was 
 nearly consumed, but no part of the wood of the floor was consumed. 
 
 Cresswell, J. The case of Regina v. Parker, 9 C. P. 45, 38 E. C. 
 L. R. 29, 1 is the nearest to the present, but I think it is distinguishable. 
 
 Carrington, for the prisoner. I submit that the wood of the floor 
 being scorched is not sufficient to constitute this offense, as wood may 
 be scorched without being actuallv on fire. 
 
 Cresswell, J. I have conferred with my Brother Patteson, and 
 he concurs with me in thinking that as the wood of the floor was 
 scorched, but no part of it consumed, the present indictment cannot 
 be supported. We think that it is not essential to this offense that 
 wood should be in a blaze, because some species of wood will burn 
 and entirely consume without blazing at all. The prisoner must be 
 acquitted. 
 
 Verdict — Not guilty. 
 
 i In that case the wood of the floor was "charred in a trifling way, it had 
 been at a red heat, but not in a blaze," and this was held a sufficient burning 
 to support an indictment for arson.
 
 )72 FORGERY. (Cll. 19 
 
 ^j^W* - " CHAPTER XIX. 
 
 FORGERY. 
 
 Definition — The false making or alteration of any written instrument 
 wherebv another may be prejudiced, with intent to deceive and defraud. 
 2 East, P. C. 840. 
 
 SECTION 1.— THE INSTRUMENT. 
 
 REX v. WARD. 
 
 (King's Bench, 1726. 2 Str. 747.) 
 
 An information was exhibited in the name of the Attorney General, 
 charging that Mr. Ward, existens onerabilis to deliver to the Duke of 
 Bucks 315 tons and 1 quarter of alum ad certum diem jam prseteritam, 
 did, with intent to defraud him thereof, forge an indorsement on the 
 back of a certificate in the words and figures following: "Mr. John 
 Ward : I hereby order you to charge 660 tons and 1 quarter of alum 
 to my account, part of the quantity here mentioned in this certificate, 
 and for your so doing this shall be your discharge. Buckingham. 
 April 30, 1706." The information likewise charges a publication of 
 it knowing it to be forged. Upon not guilty pleaded, it was tried at 
 the bar, and a verdict found for the king in Easter Term 12 Geo. 
 The defendant absconded till the last day of Michaelmas Term, when 
 he voluntarily came into court, and desired to be bailed ; but the court 
 refused it, and so he was committed. 
 
 And now in Hilary Term his counsel (Mr. Hungerford, Mr. 
 Ketelbey, Mr. Filmer, Mr. Bootle, and Mr. Strange) took some ob- 
 jections in arrest of judgment, and what they principally relied upon 
 were these: 
 
 1. That this is not such a paper of which a forgery could be com- 
 mitted at common law. This is laid as an offense at common law; 
 and Hawkins in his IMcas of the Crown, 182, says that it must be a mat- 
 i record, or any other authentic matter of a public nature, as a 
 deed or will. Other writings of an inferior nature, as forging the hand 
 of :ni authority to receive rent, counterfeiting a letter made in an- 
 other man's name, etc., are (says he) more properly punishable as 
 cheats on St. 33 Hen. \ 'III. c. L. In Cro. Eli/.. 166, it is held not ac- 
 tionable to say, "You have falsely forged your father's hand, and there-
 
 Sec. 1) THE INSTRUMENT. 573 
 
 by falsely have procured your father's tenants to pay their rent to 
 you," because it would not be forgery if he had done so. 1 Rolle, 
 Abr. 66. 1 
 
 Mr. Attorney, Mr. Lee, Mr. Marsh, Mr. Fazakerley, and Mr. Verney, 
 e contra, argued that this was a forgery at common law, and that it 
 was the highest reflection upon the law to imagine there ever was a 
 time wherein such a fact as this was not punishable by the law of 
 England. As to the passage in Hawkins, it is not warranted by the 
 authorities quoted in the margin, and he has laid it down much too 
 large. Sti. 12, is an indictment at common law for forging letters of 
 credit to raise money, and nobody imagined it did not lie; and there 
 it is not laid that he actually received money upon it, which makes 
 the case an answer to both exceptions. 5 Mod. 137; Salk. 342. In- 
 dictment for forging a bill of lading. 2 Sid. 142. Counterfeiting a 
 protection from a member of Parliament. Salk. 406, Hil. 32 Car. II, 
 rot. 35, Rex v. Sheldon, for forging a bill of exchange, Ray, 81. 
 The like for forging a warrant of attorney. Mich. 6 Geo. Rex v. 
 Ward (a brother of the defendant). Indictment for forging a promis- 
 sory note, and laid at common law, and never imagined it was not an 
 offense; and the defendant was convicted. 1 Sid. 71. 3 Leon. 170, 
 is for forging the entry of a marriage. It could not be an indictment 
 as a cheat on St. 33 Hen. VIII, because there must be an actual ob- 
 taining upon that statute. 
 
 Per Curiam. As there is no judicial authority on either side, we 
 must take it up upon the reason of the thing. There is no reason 
 why this should not be punished as a forgery, as well as if it were a 
 deed. The injury may be as great, or greater, for the value may be 
 £100,000 in one case, and a deed perhaps affect only a single acre of 
 land. St. 5 EHz. shows this to be a crime, by using the word "writ- 
 ings," in contradistinction to deeds. It cannot be prosecuted as a 
 cheat at common law, without an actual prejudice, and that is an ob- 
 taining on St. 33 Hen. VIII. The case cited out of Cro. is not law, 
 and surely those words are actionable. Regina v. Travers was for 
 forging an indorsement on an army debenture, and laid as at common 
 law. The reason why we do not meet with ancient determinations is 
 because personal credit was formerly small, and these writings not 
 made use of. It is not necessary to show an actual prejudice, a pos- 
 sibility is enough; and here it appears there would have been one, if 
 the forgery had stood. Judicium pro rege. 
 
 Afterwards he was sentenced to stand in the pillory before West- 
 minster Hall gate (which he did), to pay £500 and find securities for 
 seven years, and commitment till all was performed. 
 
 i Parts of the arguments of counsel are omitted.
 
 
 574 FORGERY. (Ch. 19 
 
 REGINA v. SMITH. 
 (Court of Criminal Appeal, 1858. 8 Cox, C. C. 32.) 
 
 Case reserved and stated by the Recorder of London: 
 
 John Smith was tried before me at the Central Criminal Court, 
 upon an indictment charging him with forging certain documents, 
 and with uttering them, knowing them to be forged. 
 
 It appeared that the prosecutor, George Borwick, was in the habit 
 of selling certain powders, some called "Borwick's baking powders," 
 and others "Borwick's egg powders." 
 
 These powders were invariably sold in packets, and were wrapped 
 up in printed papers. 
 
 The baking powders were wrapped in papers which contained the 
 name of George Borwick, but they were so wrapped that the name 
 was not visible till the packets were opened. 
 
 It was proved that the prisoner had endeavored to sell baking 
 powders, but had them returned to him because they were not Bor- 
 wick's powders. 
 
 Subsequently he went to a printer, and, representing his name to 
 be Borwick, desired him to print 10,000 labels as nearly as possible 
 like those used by Borwick, except that the name of Borwick was to 
 be omitted in the baking powders. 
 
 The labels were printed according to his order, and a considerable 
 quantity of the prisoner's powders were subsequently sold by him as 
 Borwick's powders wrapped in those labels. 
 
 On the part of the prisoner it was objected that the making or utter- 
 ing such documents did not constitute the offense charged in the in- 
 dictment. 
 
 This point I determined to reserve for the consideration of the Court 
 of Criminal Appeal, and I left it to the jury to find whether the labels 
 so far resembled those used by Borwick as to deceive persons of ordi- 
 nary observation, and to make them believe them to be Borwick's 
 labels, and whether they were made and uttered by him with intent 
 to defraud the different parties by so deceiving them, directing them in 
 that case to find the prisoner guilty. 
 
 The jury found him guilty. 1 
 
 Mclntyre, for the prisoner. This is not a forgery, either at com- 
 mon law or within the statute. The gist of the offense was the passing 
 off for genuine baking powder that which was not so; in fact, some- 
 thing thai was not so good. This was nothing more than a puff. Tn 
 Reg. v. Closs, 27 L. J. 54, M. C, it was held that a person could not be 
 indicted for forging or uttering the forged name of a painter, by 
 falsely putting it on a spurious picture to pass it off as the genuine 
 
 i Part <>f the evidence is omil tod.
 
 Sec. 1) THE INSTRUMENT. 575 
 
 painting of the artist. This was no more than a printed label, and 
 only differs from Reg. v. Closs in that there the name was painted 
 on the picture. In the case of Burgess' sauce labels the Court of Chan- 
 cery refused to restrain the son from using labels with the father's 
 name upon them. [Pollock, C. B. Suppose a man opened a shop 
 and painted it so as exactly to resemble his neighbor's; would that 
 be forgery?] No. The affixing this label to the powder amounts 
 to no more than saying: "This is Borwick's powder." If the pris- 
 oner had had a license, he would have had a right to use the labels. 
 
 Huddleston (Poland with him), for the prosecution. The jury have 
 found that the labels were made and uttered by the prisoner with in- 
 tent to defraud. The definition of forgery at common law is "the 
 fraudulent making or alteration of a writing to the prejudice of an- 
 other man's right." 2 Russ. on Crimes, 318; 4 Black. Com. 247; 
 Stark. Crim. Law, 468; 2 East, P. C. p. 965, c. 19, § 49. And the 
 finding of the jury brings this case within that definition. [Chan- 
 nell, B. What was a document at common law which could be the 
 subject of a forgery? Pollock, C. B. Was a book of which another 
 man made copies?] It is submitted that it was. Com. Dig. "Forgery." 
 Letters may be the subject of forgery. Chit. Crim. Law, 1022. So 
 a diploma of the College of Surgeons may be. Reg. v. Hodgson, 7 
 Cox, C. C. 122. So also the certificate of the examiners of the Trinity 
 House. Reg. v. Toshack, 1 Den. C, C. 492. So a letter of the char- 
 acter of a servant may be. Reg. v. Sharman, 1 Dears. C. C. 285. 
 Then this label is a certificate as to the character of an article. Reg. 
 v. Closs, R. v. Colicott, R. & R. 201, and Stark. Crim. Law, 479, were 
 also cited. 
 
 Bramwell, B. I think that this was not a forgery, even assuming 
 that the definition of forgery at common law is large enough to compre- 
 hend this case. Forgery supposes the possibility of a genuine docu- 
 ment, and that the false document is not as good as the genuine docu- 
 ment, and that the one is not as efficacious for all purposes as the other. 
 In the present case one of these documents is as good as the other, 
 the one asserts what the other does, the one is as true as the other, but 
 the one is improperly used. But the question now is whether the 
 document itself is a false document. It is said that the one is so like 
 one used by somebody else that it may mislead. That is not material, 
 or whether one is a little more true or more false than the other. 
 I cannot see any false character in the document. The prisoner may 
 have committed a gross fraud in using the wrappers for that which 
 was not the genuine powder, and may possibly be indicted for obtain- 
 ing money by false pretenses, but I think he cannot be convicted of 
 forgery. 2 
 
 Channel, B., concurred. 
 
 * Pollock, C. B., and Willes, J., delivered concurring opinions. 
 
 Is"
 
 576 FORGERT. (Ch. 19 
 
 Byles, J. Every forgery is a counterfeit. Here there was no 
 counterfeit. The offense lies in the use of it. 
 Conviction quashed. 3 
 
 WALL'S CASE. 
 
 (Court for Crown Cases Reserved, 1S00. 2 East, P. C. 953.) 
 
 Thos. Wall was convicted upon an indictment for forging and 
 knowingly uttering a will of land of one John Skidmore, deceased, 
 attested by only two witnesses; and it did not appear in evidence 
 what estate the supposed testator had in the land so devised, or of 
 what nature it was. Wherefore it might be presumed to be freehold, 
 and therefore the will void and of none effect by the express enact- 
 ment of the statute of frauds (St. 29 Car. II, c. 3, § 5) for want of 
 the attestation of three witnesses. The judges, on conference in 
 Easter Term, 1800, held the conviction wrong; for, as it was not 
 shown to be a chattel interest, it was presumed to be a freehold. 4 
 
 REX v. TEAGUE. 
 
 (Court for Crown Cases Reserved, 1802. Russ. & R. 33.) 
 
 The prisoner was tried before Mr. Justice LeBlanc, at the Hereford 
 Summer Assizes, in the year 1802, on an indictment charging him with 
 feloniously, etc., making, forging, and counterfeiting a certain bill 
 of exchange, as follows, viz. : 
 
 "No. Q. 621. 50/. Brecon, 21th June, 1799. 
 
 On demand, pay to the bearer fifty pounds, value received. 
 For Wilkins, Jeffreys, Wilkins and Williams. 
 
 Messrs. Mills, Vaughan & Co. 
 
 Bankers, Bristol. Walter Jeffreys." 
 
 with intent to defraud Walter Wilkins, Walter Jeffreys, Jeffreys Wil- 
 kins, and William Williams, against the statute, etc. 
 
 A second count was for uttering the same, knowing it to be forged. 
 There were two other similar counts, stating the intent to be to de- 
 fraud Thomas Powell. 
 
 It appeared that the bill was drawn and signed by Walter Jeffreys, 
 one of the partners of the house, for £10 only, on a sixteen penny stamp 
 
 i Bee, also, Waterman v. People, r>~ 111. 01 (1873); Colson v. Commonwealth, 
 61 s. W. 46, 22 Kv. Law Rep. 1674 (1901). Cf. Reg. v. Toshack, l Den. 
 192 (1849); State v. Grant, 74 Mo. 83 (1881). 
 
 • See accord: State v. Gutrldge, i Bay (S. C.) 288 (1793); People v. Wilson, 
 6 Johns. (N. v.i 820 (1810); State v. Smith, 8 Zerg. (Tenn.) L50 (1835); People 
 
 v. Harrison, 8 Barb. (N. y.i 560 (1850). Compare: Butler v. Com owealth, 
 
 12 Serg. & R. (Pa.) 237, 11 Am. Dec. 679 (1824); Thompson v. State, 9 Ohio 
 St. 354 (1859).
 
 Sec. 2) THE ACT BY WHICH THE FORGERY 18 COMMITTED. 577 
 
 (then the proper stamp for promissory notes of ten pounds intended 
 to be reissued after payment). This bill of exchange had been re- 
 issued three times by Wilkins & Co. as a £10 bill. It appeared that the 
 bill had been altered by changing £10 into £50, in the part of the 
 bill where the sum is expressed in figures, as also in the part where 
 it is expressed in letters, and, so altered, had been passed by the pris- 
 oner to Thomas Powell. 
 
 The jury found the prisoner guilty of uttering it, knowing it to be 
 forged ; but the learned judge respited the judgment on the objections 
 made by the prisoner's counsel, viz. : 
 
 Secondly. 1 That the act permitting the reissuing "of notes after the 
 same shall have been paid related only to promissory notes; but this 
 was a bill of exchange, and could not be legally reissued without a 
 fresh stamp, and, having been reissued three times before it was 
 altered, it was not a valid bill for £10 at the time it was altered to £50, 
 and therefore it was not that species of forgery which consisted in 
 the altering a true and valid bill. 
 
 On the first day of Michaelmas term, 1802, all the judges met at 
 Lord Ellenborough's chambers. On the second objection all the 
 judges were of opinion that although the bill was not a good and 
 valid bill for £10, having been reissued after having been paid, and 
 being only stamped with the proper stamp for a reissuable promissory 
 note, yet that it was the same thing as forging or uttering a forged 
 bill with a wrong stamp, which has been determined to be a capital 
 felony. They therefore held the conviction right. 2 
 
 SECTION 2.— THE ACT BY WHICH THE FORGERY IS COM- 
 MITTED. 
 
 REX v. LOCKETT. 
 
 (Court for Crown Cases Reserved, 1772. 2 East, P. C. 940.) 
 
 Charles Lockett was convicted of knowingly uttering a forged order 
 for the payment of money in these words: "Messrs. Neal, Fordyce 
 & Down: Pay to William Hopwood or bearer £16. 10. 6. Rt. Vennest" 
 — with intent to defraud John Scoles. 
 
 The case was that the prisoner applied to Scoles, a color man, and 
 agreed to purchase goods to the amount of £10. 0. 6, which he was to 
 send for, and he took away with him a little Prussian blue. He came 
 again, pretending to be in a hurry, and presented this note, which he 
 
 i So much of the case as relates to the first objection is omitted. 
 2 See, also. State v. Fitzshnmons. 30 Mo. 236 (1SG0) ; State v. Johnson, 2G 
 Iowa, 407. 96 Am. Dec. 15S (1S68) ; State v. Coyle. 41 Wis. 267 (1S76). 
 
 Mik.Cr.L.— 37
 
 578 FORGERY. (Ch. 19 
 
 said was a good one, and Scoles gave him £6. 10s., being the differ- 
 ence. No such person as Rt. Vennest kept cash with Messrs. Neal & 
 Co., nor did it appear that there was any such man existing. The 
 question submitted to the judges was whether this were an order with- 
 in the statute, being in the name of a fictitious person? the doubt aris- 
 ing in what is said in Mitchell's Case. The judges, after very long 
 consideration, at last agreed, in Trinity Term, 1774, that this was 
 forgery. They thought it quite immaterial whether such a man as 
 Vennest existed or not, or, if he did, whether he had kept cash at 
 the banking house of Messrs. Neal & Co. It was sufficient that the 
 order assumed those facts, and imported a right on the part of the 
 drawer to direct such a transfer of his property. 
 
 COMMONWEALTH v. BALDWIN. 
 
 (Supreme Judicial Court of Massachusetts, 1858. 11 Gray, 197, 71 Am. Dec. 
 
 703.) 
 
 Thomas, J. 1 This is an indictment for the forgery of a promissory 
 note. The indictment alleges that the defendant, at Worcester, in this 
 county, "feloniously did falsely make, forge, and counterfeit a certain 
 false, forged, and counterfeit promissory note, which false, forged, 
 and counterfeit promissory note is of the following tenor, that is to 
 say: 
 " '$457.88. Worcester, Aug. 21, 1856. 
 
 " 'Four months after date we promise to pay to the order of Russell 
 Phelps four hundred fifty-seven dollars 88 /ioo, payable at Exchange 
 Bank, Boston, value received. 
 
 " 'Schouler, Baldwin & Co.' 
 with intent thereby then and there to injure and defraud said Russell 
 Phelps." 
 
 The circumstances under which the note was given are thus stated 
 in the bill of exceptions: Russell Phelps testified that the note was 
 executed and delivered by the defendant to him at the Bay State 
 House, in Worcester, on the 21st of August, 185G, for a note of equal 
 amount, which he held, signed by the defendant in his individual name, 
 and which was overdue, and that in reply to the inquiry who were the 
 members of the firm of Schouler, Baldwin & Co. the defendant said, 
 "ll<nry W. Baldwin and William Schouler, of Columbus." He fur- 
 ther said that no person was represented by the words "& Co." It 
 appeared in evidence thai the note signed Schouler, Baldwin & Co. 
 never negotiated by Russell Phelps. The government offered 
 evidence which tended to prove either that there never had been any 
 
 partnership between Schouler and Baldwin, the defendant, or, if there 
 i Pari of Hi' 1 opinion is omitted.
 
 Sec. 2) THE ACT BY WHICH THE FORGERY IS COMMITTED. 579 
 
 ever had been a partnership, that it was dissolved in the month of 
 July, 1856. 
 
 The question raised at the trial and discussed here is whether the 
 execution and delivery of the note, under the facts stated, and with 
 intent to defraud, was a forgery. 
 
 It would be difficult, perhaps, by a single definition of the crime of 
 forgery, to include all possible cases. Forgery, speaking in general 
 terms, is the false making or material alteration of or addition to a 
 written instrument for the purpose of deceit and fraud. It may be 
 the making of a false writing purporting to be that of another. It may 
 be the alteration in some material particular of a genuine instrument 
 by a change of its words or figures. It may be the addition of some 
 material provision to an instrument otherwise genuine. It may be the 
 appending of a genuine signature of another to an instrument for 
 which it was not intended. The false writing, alleged to have been 
 made, may purport to be the instrument of a person or firm existing, 
 or of a fictitious person or firm. It may be even in the name of the 
 prisoner, if it purports to be, and is desired to be received as, the in- 
 strument of a third person having the same name. 
 
 As a general rule, however, to constitute forgery, the writing 
 falsely made must purport to be the writing of another party than 
 the person making it. The mere false statement or implication of 
 a fact, not having reference to the person by whom the instrument 
 is executed, will not constitute the crime. 
 
 An exception is stated to this last rule by Coke, in 3 Inst. 169, 
 where A. made a feoffment to B. of certain land, and afterwards 
 made a feoffment to C. of the same land, with an antedate before 
 the feoffment to B. This was certainly making a false instrument 
 in one's own name, making one's own act to appear to have been 
 done at a time when it was not in fact done. We fail to under- 
 stand on what principle this case can rest. If the instrument had 
 been executed in the presence of the feoffee and antedated in his 
 presence, it clearly could not have been deemed forgery. Beyond 
 this, as the feoffment took effect, not by the charter of feoffment, 
 but by the livery of seisin — the entry of the feoffer upon the land 
 with the charter and the delivery of the twig or clod in the name 
 of the seisin of all the land contained in the deed — it is not easy to 
 see how the date could be material. 
 
 The case of Mead v. Young, 4 T. R. 28, is cited as another ex- 
 ception to the rule. A bill of exchange payable to A. came into the 
 hands of a person not the payee, but having the same name with A. 
 This person indorsed it. In an action by the indorsee against the 
 acceptor, the question arose whether it was competent for the de- 
 fendant to show that the person indorsing the same was not the 
 real payee. It was held competent, on the ground that the indorse- 
 ment was a forgery, and that no title to the note could be derived 
 through a forgery. In this case of Mead v. Young, the party as-
 
 580 FORGERY. (Ch. 19 
 
 sumed to use the name and power of the payee. The indorsement 
 purported to be used was intended to be taken as that of another 
 person, the real payee. 
 
 The writing alleged to be forged in the case at bar was the hand- 
 writing of the defendant, known to be such, and intended to be re- 
 ceived as such. It binds the defendant. Its falsity consists in the 
 implication that he was a partner of Schouler and authorized to 
 bind him by his act. This, though a fraud, is not, we think, a for- 
 gery. 
 
 Suppose the defendant had said in terms, "I have authority to sign 
 Schouler's name," and then had signed it in the presence of the 
 promisee. He would have obtained the discharge of the former 
 note by a false pretense, a pretense that he had authority to bind 
 Schouler. "It is not," says Sergeant Hawkins, "the bare writing 
 of an instrument in another's name without his privity, but the giv- 
 ing it a false appearance of having been executed by him, which 
 makes a man guilty of forgery." 1 Hawk. c. 70, § 5. 
 
 If the defendant had written upon the note, "William Schouler, 
 by his agent, Henry W. Baldwin," the act plainly would not have 
 been forgery. The party taking the note knows it is not the per- 
 sonal act of Schouler. He does not rely upon his signature. He 
 is not deceived by the semblance of his signature. He relies solely 
 upon the averred agency and authority of the defendant to bind 
 Schouler. So, in the case before us, the note was executed in the 
 presence of the promisee. He knew it was not Schouler's signa- 
 ture. He relied upon the defendant's statement of his authority to 
 bind him as partner in the firm of Schouler, Baldwin & Co.; or, 
 if the partnership had in fact before existed, but was then dissolved, 
 the effect of the defendant's act was a false representation of its 
 continued existence. 
 
 In the case of Regina v. White, 1 Denison, 208, the prisoner 
 indorsed a bill of exchange, "Per procuration, Thomas Tomlinson, 
 Emanuel White." He had no authority to make the indorsement, 
 but the twelve judges held unanimously that the act was no forgery. 
 
 The result is that the exceptions must be sustained and a new trial 
 ordered in the common pleas. It will be observed, however, that the 
 grounds on which the exceptions are sustained seem necessarily to 
 dispose of the cause. 
 
 Exceptions sustained.
 
 Sec. 2) THE ACT BY WHICH THE FORGERY IS COMMITTED. 581 
 
 WRIGHT'S CASE. 
 
 (Lancaster Assizes, 1S28. 1 Lew. 135.) 
 
 Prisoners were indicted for uttering a forged banker's check. It 
 appeared that a person named Townsend was in the habit of sign- 
 ing blank checks and leaving them with his clerk when business 
 called him away from home. One of these checks fell into the 
 hands of the prisoners, who filled up the blank with the words 
 "one hundred pounds," and dated it. 
 
 Coltman, for the prisoner, objected that, the signature being genu- 
 ine, it could not be said that the prisoner had uttered a forged in- 
 strument. 
 
 Bayley, J. By filling in the body, and dating it, he made it a 
 perfect instrument, which it previously was not. 1 
 
 COMMONWEALTH v. SANKEY. 
 
 (Supreme Court of Pennsylvania, 1853. 22 Pa. 390, GO Am. Dec. 91.) 
 
 Black, C. J. 2 The defendant wrote a note payable to himself, 
 for $141, and got an illiterate man to sign it, by falsely and fraud- 
 ulently pretending that it was for $11 only. On a special verdict 
 finding these facts, the court gave judgment in favor of the accused. 
 
 The act was a forgery according to all the text-writers on crim- 
 inal law, from Coke to Wharton. But their doctrine is not sus- 
 tained by the ancient English cases, and is opposed by the modern 
 ones. Only three American decisions were cited on the argument ; 
 and we take it for granted that there are no others on the point. 
 Two of these, Putnam v. Sullivan, 4 Mass. 45, 3 Am. Dec. 206, 
 Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441, are wholly 
 with the defendant, and the other, State v. Shurtliff, 18 Me. 371, 
 supports the argument of the commonwealth's counsel. The weight 
 of the judicial authorities is in favor of the opinion that this is no 
 forgery. We think that the arguments drawn from principle, and 
 the reason of the thing, preponderate on the same side. It must be 
 admitted that, in morals, such an imposture as this stands no better 
 than the making of a false paper. But even a knave must not be 
 punished for one offense because he has been guilty of another. 
 Forgery is the fraudulent making or altering of a writing to the 
 prejudice of another's right. The defendant was guilty of the fraud, 
 but not of the making. The paper was made by the other person 
 himself, in prejudice of his own right. To complete the offense, 
 according to the definition it requires a fraudulent intent and a mak- 
 
 i Part of the case, dealing with another question, is omitted. 
 2 The opinion only is printed. 

 
 582 FORGERY. (Ch. 19 
 
 ing both. The latter is innocent without the former, and the for- 
 mer, if carried into effect without the latter, is merely a cheat. If 
 every trick, or false pretense, or fraudulent act by which a person 
 is induced to put his name to a paper which he would not otherwise 
 have signed, is to be called a forgery, where shall we stop, and what 
 shall be the rule? Is it forgery to take a note for a debt known not 
 to be due; or to procure a deed for valuable land by fraudulently 
 representing to the ignorant owner that it is worthless ; or to get 
 a legacy inserted in a will by imposing on a weak man in his ill- 
 ness? All these would be frauds — frauds perpetrated for the pur- 
 pose of getting papers signed — as much as that which was commit- 
 ted in this case. But no one thinks they are forgeries. 
 
 For these reasons, and the reasons given in the court below, which 
 we fully adopt, the judgment is to be affirmed. 2 
 
 SECTION 3.— THE INTENT. 
 
 REX v. SHEPPARD. 
 
 (Court for Crown Cases Reserved, 1810. Russ. & R. 169.) 
 
 The prisoner was tried before Mr. Justice Heath, at the Old 
 Bailey September Sessions, in the year 1809, on an indictment con- 
 sisting of four counts. 
 
 The first count charged the prisoner with forging a receipt for 
 £19. 16s. 6d., purporting to be signed by W. S. West, for certain 
 stock therein mentioned, with intent to defraud the governors and 
 company of the Bank of England. The second count was for ut- 
 tering the same knowing it to be forged, with the like intent. The 
 third and fourth counts varied from the first and second in charg- 
 ing the intent to have been to defraud Richard Mordey. 
 
 It appeared in evidence at the trial, that Richard Mordey gave 
 £20 to his brother Thomas Mordey in the month of January, 1809, 
 to buy stock in the 5 per cent. navy. 
 
 In February following Thomas Mordey gave the £20 to the pris- 
 oner for the purchase of the said stock, on the prisoner's delivering 
 to him the receipt stated in the indictment. 
 
 The prisoner, being examined at the bank, confessed that the re- 
 ceipl was a forgery, thai there was no such person as W. S. West, 
 whose signature appeared subscribed to the receipt, and that he, be- 
 
 2 Accord: Hill v. State, 1 lerg. (TeM.) TO. 21 Am. Dec. Ill (1S1M); Reg. 
 
 v. Chadwick, 2 Moo. *v R. 646 (1844). Contra: State v. Shurtllfl, 18 Me. 
 B68 (1841).
 
 Sec. 3) THE INTENT. 583 
 
 ing pressed for money forged that name, but had no intention of 
 defrauding Richard Mordey. 
 
 Richard Mordey and Thomas Mordey swore they believed that 
 the prisoner had no such intent. 
 
 On examining the bank books, no transaction corresponding with 
 
 this could be found. 
 
 The learned judge told the jury that the prisoner was entitled to 
 an acquittal on the first and second counts, because the receipt in 
 question could not operate in fraud of the governor and company 
 of the bank. 
 
 That as to the third and fourth counts, although the Mordeys 
 swore that they did not believe the forgery to have been committed 
 with an intent to defraud Richard Mordey, yet as it was the neces- 
 sary effect and consequence of the forgery, if the prisoner could 
 not repay the money, it was sufficient evidence of the intent for them 
 to convict the prisoner. 
 
 The jury acquitted the prisoner on the first and second counts, 
 and found him guilty on the third and fourth counts ; and the learn- 
 ed judge reserved this case for the opinion of the judges, to deter- 
 mine whether this direction to the jury was right and proper. 
 
 In Easter Term, 31st of May, 1810, all the judges were present, 
 and they were all of opinion that the conviction was right; that the 
 immediate effect of the act was the defrauding of Richard Mordey 
 of his money. 
 
 REGINA v. HODGSON. 
 
 (Court for Crown Cases Reserved, 1856. 36 Eng. Law & Eq. 626.) 
 
 The following case was reserved and stated for the consideration 
 and decision of the Court of Criminal Appeal by Bramwell, B., at 
 the Staffordshire Spring Assizes, 1856: 
 
 Henry Hodgson was indicted at common law for forging and 
 uttering a diploma of the College of Surgeons. The indictment was 
 in the common form. 
 
 The College of Surgeons has no power of conferring any degree 
 or qualification, but before admitting persons to its membership, it 
 examines them as to their surgical knowledge, and if satisfied there- 
 with admits them, and issues a document, called a diploma, which 
 states the membership. The prisoner had forged one of these di- 
 plomas. He procured one actually issued by the College of Sur- 
 geons, erased the name of the person mentioned in it, and substi- 
 tuted his own, changed the date, and made other alterations to 
 make it appear to be a document issued by the college to him. He 
 hung it up in his sitting room, and, on being asked by two other 
 medical practitioners whether he was qualified, he said he was, 
 and produced this document to prove his assertion.
 
 5S4 FORGERY. (Ch. 19 
 
 When a candidate for an appointment as vaccinating officer, he 
 stated he had his qualification, and would show it if the person in- 
 quiring (the clerk of the guardians, who were to appoint to the 
 office) would go to his (the prisoner's) gig. He did not, however, 
 then produce or show it. 
 
 The prisoner was found guilty, the facts to be taken to be that 
 he forged the document in question, with the general intent to in- 
 duce a belief that the document was genuine, and that he was a 
 member of the College of Surgeons, and that he showed it to two 
 persons, with the particular intent to induce such belief in those 
 persons, but that he had no intent in forging, or in the uttering 
 and publishing (assuming there was one), to commit any particu- 
 lar fraud or specific wrong to any individual. 1 
 
 Jervis, C. J. I am of opinion that this conviction is wrong. 
 The recent statute for further improving the administration of crim- 
 inal justice (St. 14 & 15 Vict. c. 100) alters and affects the forms 
 of pleadings only, and does not alter the character of the offense 
 charged. The law as to that is the same as if the statute had not 
 been passed. This is an indictment for forgery at common law. 
 I will not stop to consider whether this is a document of a public 
 nature or not, though I am disposed to think that it is not a public 
 document; but, whether it is or not, in order to make out the 
 offense there must have been, at the time of the instrument being 
 forged, an intention to defraud some person. Here there was no 
 such intent at that time, and there was no uttering at the time when 
 it is said there was an intention to defraud. 2 
 
 Conviction quashed. 8 
 
 i Part of this case is omitted. 
 
 2 Wightman, J., and Bramwell, B., delivered concurring opinions, and 
 Cresswell and Erie, JJ., concurred. 
 
 s Compare Reg. v. Toshack, 1 Den. C. C. 492 (1849).
 
 LIBEL. 585 
 
 CHAPTER XX. 
 LIBEL. 
 
 THE CASE DE LIBELLIS FAMOSIS. 
 (Star Chamber, 1605. 5 Rep. 125.) 
 
 In the case of L. P. in the Star Chamber this term against whom 
 the Attorney General proceeded ore tenus on his own confession, 
 for composing and publishing an infamous libel in verse, by which 
 John, Archbishop of Canterbury (who was a prelate of singular 
 piety, gravity and learning, now dead), by descriptions and circum- 
 locutions, and not in express terms, and Richard, Bishop of Canter- 
 bury, who now is, were traduced and scandalized, in which these 
 points were resolved. 
 
 1. Every libel (which is called famosus libellus, seu infamatoria 
 scriptura) is made either against a private man, or against a mag- 
 istrate or public person. If it be against a private man it deserves 
 a severe punishment, for although the libel be made against one, 
 yet it incites all those of the same family, kindred, or society to re- 
 venge, and so tends per consequens to quarrels and breaches of the 
 peace, and may be the cause of shedding of blood, and of great 
 inconvenience. If it be against a magistrate or other public per- 
 son, it is a greater offense; for it concerns not only the breach of 
 peace, but also the scandal of government. 1 
 
 2. Although the private man or magistrate be dead at the time 
 of the making of the libel, yet it is punishable; for in the one case 
 it stirs up others of the same family, blood or society to revenge, and to 
 break the peace, and in the other the libeler traduces and slanders 
 the state and government, which dies not. 
 
 It it not material whether the libel be true, or whether the party 
 against whom it is made be of good or ill fame. 2 Every infamous 
 libel, aut est in scriptis, aut sine scriptis. A scandalous libel in 
 scriptis is, when an epigram, rhime or other writing is composed 
 or published to the scandal or contumely of another, by which his 
 fame and dignity may be prejudiced. And such libel may be pub- 
 lished: 1. Verbis aut cantilenis, as where it is maliciously repeat- 
 
 i Part of this case is omitted. 
 
 2 St. 6 & 7 Vict. c. 96, § 6, allows the truth of the alleged libel to be 
 given in evidence as a complete defense, if it appear that the publication 
 was made with proper motives and for justifiable ends. Similar statutes 
 exist in our states. See Commonwealth v. Snelling, 15 Pick. (Mass.) 337 (1S34) ; 
 State v. White, 29 N. C. ISO (1847).
 
 5S6 libel. (Ch. 20 
 
 ed or sung in the presence of others.* 2. Traditione, when the 
 libel, or any copy of it is delivered over to scandalize the party. 
 Famosus libellus sine scriptis may be: 1. Picturis, as to paint the 
 party in any shameful and ignominious manner. 2. Signis, as to 
 fix a gallows, or other reproachful and ignominious signs at the 
 party's door or elsewhere. And there are certain marks by which 
 a libeler may be known; quia tria sequuntur defamatorem famosum: 
 1. Pravitatis incrementum, increase of lewdness. 2. Bursas decre- 
 mentum, decrease of money, and beggary. 3. Conscientise detri- 
 mentum, shipwreck of conscience. 
 
 GILES v. STATE. 
 (Supreme Court of Georgia, 1849. 6 Ga. 276.) 
 
 Lumpkin, J., delivering the opinion. 4 
 
 1. Did the indictment contain a sufficient averment of the pub- 
 lication of the libel? It charges that David Giles, the defendant, 
 on the 6th day of July, 1847, did maliciously and falsely "utter 
 and publish — that is to say, did then and there write, and fasten upon 
 the side of a tree in a public place, where it could be there read — 
 the following malicious defamation, in writing, of and concerning 
 
 Kone William Thompson (the prosecutor) and others," etc. It is ob- 
 jected that it should have been alleged that the libel was read. Was 
 this necessary? If so, then the fact that it was read should have 
 been proven also. We are of opinion that neither was requisite to 
 constitute the offense. 
 
 Actual communication of the contents of a libel, as by singing 
 or reading, is one mode of publication ; but it is neither the only 
 nor the usual mode. The common method is by the posting up of 
 the paper, written or printed, or its delivery, and no question is ever 
 asked as to whether it was read or not. We say of an author that 
 he has published a book, when he has given its contents to the 
 world ; and we speak of the publication of a will, without mean- 
 ing to denote that the contents of the instrument have been actu- 
 ally communicated. So it is with a libel. Publication, says Best, 
 (., in the King v. Sir Francis Burdett, is nothing more than doing 
 the last act for the accomplishment of the mischief intended by it. The 
 moment a man delivers a libel from his hands, his control over it 
 is gone. He has shot his arrow and it does not depend upon him 
 whether it hits the mark or not. There is an end of the Incus peni- 
 
 titiae, his offense is complete, all that depends upon him is con- 
 
 
 « "If n man Insinuates a fact In asking a question, meaning thereby to assert 
 it, it is the same thing as If lie asserted It In terms." Alderson, B., In Keg. 
 r Gathereole, 2 Lewln, 266 (188$. 
 
 ♦ Only so mueh of the opinion as relates to publication Is printed.
 
 LIBEL. 587 
 
 summated, and from that moment, upon every principle of com- 
 mon sense, he is liable to be called upon to answer for his act. 
 
 So, then, the mere delivering over or parting with the libel is a 
 publication. There need be no averment or proof of the actual com- 
 munication of the contents of the paper. Lord Coke says, a libel 
 may be published traditione, by delivery (5 Reports, 12G, a) ; and 
 this definition is adopted by Chief Baron Comyns, in his Digest, tit. 
 "Publications," b, 1. If a letter containing a libel is sent sealed to 
 another, or to the party himself against whom it is made 2 or is ad- 
 dressed through the post office, it is a sufficient publication. 1 
 Saund. Rep. 132, notes. 
 
 If these propositions be tenable, and I doubt not they are law, 
 then the case before us is free from doubt. I would only add, upon 
 this branch of the case, that Chief Justice De Grey, in delivering 
 the opinion of the court in Baldwin v. Elphinston, 2 W. Bl. 1037, 
 says there are in Rastall's Entr. tit. "Action sur le Case," 13 a, 
 two instances of constructive publications, by delivering letters to 
 A. and B., and by fixing them on the door of St. Paul's Church. 
 
 The judgment of the court below is affirmed. 
 
 COMMONWEALTH v. BLANDING. 
 (Supreme Judicial Court of Massachusetts, 1825. 3 Pick. 304, 15 Am. Dec. 214.) 
 
 Parker, C. J., delivered the opinion of the court. 8 
 
 As to that part of the instructions of the judge which states that 
 the malicious intent charged in the indictment (there being no evi- 
 dence admitted to prove the truth of the facts alleged) was an in- 
 ference of law, this is certainly the common-law doctrine, and it 
 never has been repealed by any statute of this commonwealth, nor 
 overruled by any decision of this court. 
 
 The propagator of written or printed tales to the essential prej- 
 udice of any one in his estate or reputation is a public offender, 
 and is not allowed to excuse himself by the additional wrong of 
 proving in a court of justice, in a collateral way, the facts which he 
 has unwarrantably promulgated. 
 
 And yet there are some exceptions to this general rule, recogniz- 
 ed by the common law, and others which are rendered necessary 
 by the principles of our government. 
 
 2 Accord: Clutterbuck v. Chaffers, 1 Stark. 471 (1816); State v. Avery, 
 7 Conn. 266. 18 Am. Dec. 105 (1828) ; Reg. v. Brooke, 7 Cox. C. C. 251 (1857). 
 
 When the libelous matter is sent to the prosecutor himself, the gist 
 of the offense is the tendency to a breach of the peace. The intent thus to 
 cause a breach of the peace need not be averred in the indictment, Reg. v. 
 Brooke, supra; but if the intent alleged is to injure, prejudice, or aggrieve 
 the prosecutor in his business, It is not sustained by proof that the libel 
 was sent to the prosecutor, Rex v. Wegener, 2 Stark. 245 (1S17). 
 
 8 Portions of the opinion are omitted. 

 
 588 libel. (Ch. 20 
 
 These exceptions are all founded in a regard to certain public 
 interests, which are of more importance than the character or tran- 
 quillity of any individual. All proceedings in legislative assemblies, 
 whether by speech, written documents, or otherwise, are protected 
 from scrutiny elsewhere than in those bodies themselves, because 
 it is essential to the maintenance of public liberty that in such as- 
 semblies the tongue and the press should be wholly unshackled. So 
 proceedings in courts of justice, in which the reputation of individ- 
 uals may be involved, are to be free from future animadversions, 
 because the investigation of right demands the utmost latitude of 
 inquiry, and men ought not to be deterred from prosecuting or de- 
 fending there by fear of punishment or damages. Yet in these 
 instances, if this necessary indulgence is abused for malicious pur- 
 poses, a pretense only being made of the forms of legislative or 
 judicial process, the party so conducting himself is amenable to the 
 law. The right, also, of complaining to any public constituted body 
 of the malversation or oppressive conduct of any of its officers or 
 agents, with a view to redress for actual wrong or the removal of 
 an unfaithful officer, may be justified, because the case will show 
 that the proceeding does not arise from malicious motives, or, if it 
 does, because the common interest requires that such representa- 
 tions should be free. And there are cases of mere private import, 
 such as an honest, though mistaken, character of a servant, which, 
 when requested by any one having an interest, the law considers 
 innocent. These cases are all provided for by the common law, 
 and they go far to render harmless that much decried rule that the 
 truth is no defense in a prosecution for libel. Rex v. Wright. 8 T. 
 R. 293 ; Rex v. Creevey, 1 M. & S. 273 ; Lake v. King, 1 Saund. 
 131; Astley v. Younge, 2 Burr. 807; Rogers v. Clifton, 3 B. & 
 P. 587; Esp. Dig. (3d Ed.) 505; Thorn v. Blanchard, 5 Johns. 
 (N. Y.) 508; Rex v. Fisher, 2 Campb. 563; Starkie on Slander, 
 c. 11. 
 
 But there are certain other cases, not yet distinctly adjudicated 
 upon, where the truth of charges is a legitimate ground of defense, 
 by clear inference from principles recognized by the common law 
 and our own tribunals. 
 
 In Commonwealth v. Clap, 4 Mass. 1G3, 3 Am. Dec. 212, it is 
 stated "that a man may apply by complaint to the Legislature to 
 remove an unworthy officer, and if the complaint be true, and made 
 with the honest intention of giving useful information, and not 
 maliciously, or with intent to defame, the complaint will not be a 
 libel." 
 
 This is put for illustration of the principle, not to exhibit the only 
 instance in which it is to be applied. A complaint to the executive 
 against an officer holding his place at its pleasure, to a court against 
 an officer whom they have the power to dismiss, to any body <>f 
 men having power over its officers, the subject of the complaint
 
 LI 15 EL. 
 
 5S9 
 
 being of a public nature, or the person complaining having a partic- 
 ular interest in it, falls within the same principle. 
 
 Thus, if a minister of the gospel should be guilty of gross im- 
 moralities, and one of his parish should complain to the church in 
 order that an inquiry might be instituted, or if a candidate for the 
 ministry should from vicious habits be unfit for the station he seeks, 
 since all are interested in the purity of the ministerial character, 
 information to those whose duty it is to determine his qualifications 
 would not be libelous, if communicated in a spirit of truth and 
 candor. Various other cases might be put, in which, if it appeared 
 that the purpose was sincere and upright and wholly free from 
 malice, the truth of the facts stated would be a good defense. But 
 in all such cases the information is to be given to those who have 
 a right to act upon it, and whose interest and duty are concerned 
 in it ; for a promiscuous promulgation of the same facts would of 
 itself be the strongest evidence of malice, and in such cases the 
 court must judge whether the occasion is a fit and proper one for 
 the admission of such defense, and the jury must determine the 
 motives and the end. 
 
 Having thus attempted to vindicate the law of libel, as establish- 
 ed in this commonwealth, from the aspersions which are frequently 
 cast upon it, we will consider its application to the case before us, 
 in order to determine whether, upon either of the grounds assumed, 
 a new trial ought to be granted. 
 
 The other objection, which opens the general question, is that 
 the judge refused to admit in evidence the inquisition which is 
 alluded to in the publication, and with a view to prove the truth of 
 the facts therein stated. Had the inquisition been published with- 
 out any defamatory comment, it certainly would not have furnished 
 ground for this prosecution; for it does not of itself contain any 
 libelous matter, and it is in the nature of a judicial inquiry, the 
 publication of which would not be criminal, unaccompanied by di- 
 rect proof of malice. The inquisition merely states that a deceased 
 stranger, who was found dead in a tavern kept by Fowler, came 
 to his death by intoxication. Now, this may be true without any 
 implication against Fowler; for every innholder is liable to have 
 drunken people come to his house, and, if they die there, he may be 
 entirely innocent of the cause of their death. But the remarks made 
 by the defendant charged Fowler with having administered the liq- 
 uid poison, and thus being the cause of the death of the stranger; 
 and the public are warned against resorting to the house where 
 such practice is allowed, and the municipal authorities are invoked 
 to exert their power by taking away or withholding the license of 
 Fowler to keep a public house. The matter of this publication is 
 certainly libelous, as it insinuates gross misconduct against Fowler, 
 and directly charges him with a violation of his duty, and exposes 
 him to the loss of his livelihood, so far as that depends upon the
 
 590 libel. (Ch. 20 
 
 reputation of his inn for regularity and order. Admitting the account 
 of the inquisition to be correct as published, yet the addition of com- 
 ments and insinuations tending to asperse Fowler's character renders 
 it libelous. Thomas v. Croswell, 7 Johns. (N. Y.) 264, 5 Am. Dec. 
 269. 
 
 But it is said that this is a matter of public concern, and that the 
 defendant was impelled by a sense of public duty to warn travelers 
 and others from a house which was thus deservedly stigmatized. The 
 answer is that the defendant did not select a proper vehicle for the 
 communication. The natural effect of a publication of this sort in a 
 newspaper is to procure a condemnation in the public mind of the 
 party accused, and his punishment, by bringing his house into dis- 
 repute, without any opportunity of defense on his part, so that the 
 accuser becomes judge and executioner at one stroke, and his purpose 
 if a malicious one, is answered without any means of relief; for the 
 mischief to the person libeled would be quite as great if he were in- 
 nocent as if he were guilty. If it should be said in answer that all 
 this is right if the allegation be true, and if not true he may recover 
 his damages in an action of slander, it may justly be replied that this 
 remedy is uncertain and incomplete ; for in many cases the slanderer 
 will be unable to respond in damages, and the suffering party will 
 be subjected to the additional injury of a troublesome and expensive 
 lawsuit, with little or no hope of recompense. 
 
 There may be cases where (there being no other mode by which 
 great mischief can be warded off from the public) a newspaper com- 
 munication, made with the sole view of preserving the citizens from in- 
 jury to their life or health, would be justifiable. Such might be the 
 case of an apothecary selling and distributing poison in the form of 
 medicine, stated by a distinguished member of the late convention for 
 revising: the Constitution. This is an extreme case, where to delav 
 information until the forms of law should be pursued might endanger 
 the lives of hundreds, and such a case would be a law to itself; the 
 public safety being the supreme law, and it being every citizen's duty 
 to give warning in such cases. There may be cases of gross swindling, 
 where nothing but immediate notice would secure the public against 
 depredation, which would be governed by the same principle. 
 
 But in the case before us there was no such urgent necessity. The 
 statute regulating licensed houses provides the restrictions and the 
 puni it which the Legislature has thought adequate to the offences 
 
 of the nature contained in this libel. For suffering excessive drink- 
 ing in his house, the innkeeper is subject to a penalty. For a second 
 offense, he is to be put under bond for good behavior, in addition to 
 a pecuniary mulct. For a third, he is to forfeit his license and shall 
 [isqualified to keep a public house for two years. And, besides 
 all this, if his misconduct is continued so as to constitute his house 
 disorderly, or so that he violates the law for regulating it, lie forfeits 
 the penalty of his recognizance. Other guards and securities are pro-
 
 LIBEL. 591 
 
 vided in the statute to prevent the abuse of the license, and a com- 
 plaint may be made to the selectmen, to a justice of the peace, or to 
 a grand jury, by any prson who has knowledge of such offenses, with- 
 out incurring the risk of a prosecution for libel. There was, then, 
 no necessity for this newspaper publication, and the defendant, by 
 resorting to it, has taken the law into his own hands unwarrantably, 
 instead of resorting to those tribunals which the laws have constituted 
 for the correction of these offenses. This, then, is a case in which the 
 defendant cannot be allowed to excuse himself by showing the truth 
 of the accusation which he has unjustifiably made. He had no right to 
 arraign the prosecutor before the public in the form which he adopted, 
 and thus destroy the reputation of his house, without leaving him 
 any means of showing his innocence of the charges made against him. 
 The occasion was not a proper one for a newspaper denunciation. 
 Motion for a new trial overruled.
 
 592 perjuet. (Ch. 21 
 
 CHAPTER XXI. 
 PERJURY. 
 
 If any one swear a false oath on a relic, and he be convicted, let 
 him forfeit his lands, or half his "wer," and let that be common to 
 lord and bishop. And let him not be thenceforth oath-worthy; un- 
 less he the more thoroughly before God make "bot," and find him 
 "borh" that he will ever after abstain from the like. 
 
 Laws of Cnut, II, 36. 
 
 Perjury is a crime committed when a lawful oath is ministered by 
 any that hath authority, to any person, in any judicial proceeding, 
 who sweareth absolutely, and falsely in a matter material to the issue, 
 or cause in question, by their own act, or by the subornation of others. 
 
 3 Coke, Inst. 164. 
 
 CUSTODES v. GWINN. 
 (Upper BeDcb, 1G52. Style, 324.) 
 
 Howell Gwinn was indicted of perjury for taking of a false oath 
 in an affidavit made before a Master of the Chancery, and was found 
 guilty. It was moved in arrest of judgment. 1 
 
 (2) It doth not appear that the party took a false oath, for it ap- 
 pears not whether the Master of the Chancery had any power to take 
 this oath, and if he had not then it cannot be perjury. 
 
 Maynard. It is not necessary to show that a Master of the Chan- 
 cery hath authority to take an oath, for it is the common course and 
 practice of the Court of Chancery for the Masters to take oaths. 
 
 Nicholas, Justice. A Master of the Chancery of common right 
 hath no power to take an oath, and therefore in this case you should 
 have pleaded precisely that he had authority, otherwise it cannot be 
 good. 
 
 Rou,E, Chief Justice. Perjury at the common law is intended to be 
 in some court, and legal proceedings for a false oath made before us 
 not touching the matter in question between the parties, an indictment 
 of perjury lies not, and it appears not here that the Chancery took 
 notice of the affidavit, for nothing was dime upon it. If one make 
 a fal e oath, the party is punishable for it by an action upon the ease, 
 in case it be nol perjury, for which lie may lie indicted for it. A false 
 Oath is one thing, and perjury is another tiling, for one is judicial, and 
 the other is extrajudicial. And the law inllicts greater punishment 
 
 i Part "f Miis case is omitted.
 
 PERJURY. 593 
 
 for a false oath made in a court of justice than if it be made else- 
 where, because of the preservation of justice. 
 
 Jermyn, Justice, said that perjury takes its name from perverting 
 of justice, and therefore it is intended to be in a court of justice. The 
 court held the indictment ill, and gave judgment against the Custodes. 
 
 GURNEIS' CASE. 
 (Star Chamber, 1611. 3 Coke, Inst. 166.) 
 
 Damages were awarded to the plaintiff in the Star Chamber ac- 
 cording to the value of his goods riotously taken away by the defend- 
 ant. The plaintiff caused two men to swear the value of his goods 
 that never saw nor knew them. And though that which they swear 
 was true, yet because they knew it not, it was a false oath in them, for 
 the which both the procurer and the witnesses were sentenced in the 
 Star Chamber. 1 
 
 STATE v. HATTAWAY. 
 (Supreme Court of South Carolina, 1819. 2 Nott & McC. 118, 10 Am. Dec. 580.) 
 
 Indictment for perjury. The facts were: One Shackleford having 
 been indicted for stealing a cow, and afterwards discharged, brought 
 an action against the prosecutor for malicious prosecution. In this 
 action Hattaway was called as a witness, and testified that Shackle- 
 ford purchased the cow in question from one Carter, and that he was 
 present at the time. Being asked where he lived at the time, he said, 
 "near Carter's, perhaps within 100 yards," whereas it was proved that 
 he did not live in the state. The perjury assigned was his false testi- 
 mony as to where he lived. 
 
 Nott, J. 2 If the defendant lived 100 miles off, and was present at 
 the sale, he was a competent witness to prove it. If he lived within 
 50 yards, and was not present, he could know nothing of the matter. 
 
 i "Granting the materiality of the fact, whether it be a statement of knowl- 
 edge, or of information or belief, or a simple statement of a fact, if the 
 witness knows that the fact is not so, or that he has no such information, 
 or no such belief, he is guilty. But if lie only swears rashly to his belief of a 
 matter of which he does not profess to have personal knowledge, the jury can- 
 not be permitted to decide on the reasonableness of his belief, except as tend- 
 ing to show whether he did believe. In short, perjury is always of some 
 matter of fact; and belief may be a fact. In this case, the only questions of 
 fact put in issue by the indictment and by the law are: Was the statement 
 false, and did the defendant know it to be false? In this respect, it is like 
 the offense of passing a counterfeit note, knowing it to be counterfeit. 
 Proof of reasonable cause of belief may warrant a jnry to find knowledge; 
 but it is not the legal equivalent of knowledge." Lowell, J., in United States 
 v. Moore, Fed. Cas. No. 15.S03. 
 
 2 Part of the opinion is omitted. 
 Mik.Cr.L.— 3S
 
 594 perjury. (Ch. 21 
 
 It was not a fact of such a nature as to be better known to him, in 
 consequence of the contiguity of residence. It may sometimes be diffi- 
 cult to determine how far the evidence of a particular fact may go to 
 strengthen the testimony of a witness to a more material point in a 
 case, and perhaps no precise and definite rule can be laid down on 
 the subject. In all cases, therefore, so highly penal, where the ques- 
 tion is of a doubtful character, I should incline to favor the side of 
 the accused. In the case now under consideration, I cannot conceive 
 that the testimony was either directly or indirectly material to the 
 issue. I am of opinion, therefore, that a new trial ought to be granted. 
 Colcock, Johnson, Richardson, and Gantt, JJ., concurred. 
 
 ARDEN v. STATE. 
 (Supreme Court of Errors of Connecticut, 1836. 11 Conn. 408.) 
 
 Williams, C. J. The only question in this case is whether the false 
 taking of a poor debtor's oath before a magistrate authorized to ad- 
 minister it constitutes the crime of perjury. 1 
 
 Perjury, as defined by Lord Coke is when a lawful oath is admin- 
 istered, by any that hath authority, to any person, in a judicial pro- 
 ceeding, who sweareth absolutely and falsely, in a matter material 
 to the issue or cause in question, by their own act, or the subornation 
 of others. 3 Inst. 163. Hawkins says it seemeth to be a willful false 
 oath, by one who, being lawfully required to depose the truth in any 
 proceeding in a course of justice, swears absolutely to a matter of 
 some consequence to the point in issue, whether he be believed or not. 
 1 Hawk. P. C. c. 69, § 1. Chitty adopts Lord Coke's definition; and 
 Russell speaks of a proceeding in a court of justice. 2 Russ. 1751. 
 His American editor concurs with Judge Johnson, in the case before 
 cited, that the word "court" is substituted for the word "course" of 
 justice. And it is believed that those who speak of a judicial pro- 
 ceeding, and of a proceeding in a court of justice, mean the same thing. 
 ft is apparent it cannot be intended that the oath must be administered 
 before a court. It need not be before a court of record. 2 Rol. Abr. 
 .'57. It may be before a court baron. 1 Mod. 55; Winch, 3. Or a 
 court of requests. Hut. 34. Or an ecclesiastical court. Cro. Eliz. 
 609; 1 Sid. 454. Or before commissioners. 1 Show. 397; Cro. Car. 
 97. Or in an answer in chancer)-. Cro. Car. 321, 327, 353 ; Cro. 
 Eliz. 907; 2 Burr. 1189. Or upon a complaint to the Chancellor, on 
 account of the arrest of one of the officers of his court. 1 Term Rep. 
 63. So, too, it may be upon some collateral matter, not directly con- 
 nected with the issue of a cause on trial, as an affidavit to hold to bail. 
 Peake's Cas. 112. Or when one, who offers himself as bail, swears 
 his property to be greater than it is. Cro. Car. 146. And the crime 
 
 i P;irt of the opinion is omitted.
 
 PERJURY. 595 
 
 may be committed, in some court of justice having power to administer 
 oaths, or before some magistrate or proper officer invested with simi- 
 lar authority, in some proceeding relative to a civil suit, or criminal 
 prosecution. 4 Bl. Com. 137. 
 
 In the case before the court it is not denied that the oath was false, 
 the intention willful, the oath lawfully administered, and the assertion 
 absolute. But it is denied that it is in the course of judicial proceeding, 
 and that it is material. 
 
 In support of the first proposition, it is said that it was decided, in 
 the case of Betts v. Dimon, 3 Conn. 107, that the magistrate in such 
 a case acted, not judicially, but ministerially, and therefore it can- 
 not be perjury. But the administration of an oath to a witness giving 
 a deposition, or to a party making an affidavit to procure a continu- 
 ance of his cause, or to bail as to the amount of his property, is not a 
 judicial, but ministerial, act, and yet it is not to be doubted that the 
 deponent might be guilty of perjury; for all such false oaths as are 
 taken before those who are in any way intrusted with the administra- 
 tion of public justice, in relation to any matter before them in debate, 
 are properly perjuries. 1 Hawk. P. C. c. 60, § 3. 
 
 Here the magistrate had a general power to administer oaths, and 
 the particular power to administer this oath. He was intrusted with 
 a portion of the administration of public justice; for he was to de- 
 cide, in some capacity, whether the oath should be administered. The 
 question is not so much in what character the magistrate acted, as 
 what was to be the effect of his act? Would it affect the course of 
 public justice? For that purpose we must look at the situation of 
 these parties. After the usual course of litigation, the creditor had 
 obtained a judgment and execution against his debtor, and had con- 
 fined him in prison. The debtor wished to be relieved from the in- 
 convenience of this judgment, and to deprive the creditor of one of 
 those means of satisfying it which the law had given him, and for 
 this purpose took the oath which has given rise to this inquiry; and 
 the effect of it is to relieve him from the operation of the judicial 
 sentence and to deprive the creditor of the benefit of it. Is not, then, 
 the immediate effect to interfere with the course of public justice? 
 
 Suppose the application were for a new trial, or an audita querela, 
 or a habeas corpus, and a similar oath had been taken before a magis- 
 trate; could there be a doubt that it would be perjury? The effect in 
 some of these cases might be greater; but, as it respects this question, 
 they seem to be of a similar character. They all are intended, after 
 final judgment, to vary the situation and rights of the litigant parties, 
 and to deprive the creditor, in a greater or less degree, of the fruits 
 of that judgment. If, then, this be not, technically speaking, a ju- 
 dicial proceeding, the court cannot say it is an extrajudicial proceed- 
 ing; but, on the other hand, they think it is a proceeding calculated 
 materially to affect the course of justice.
 
 506 perjury. (Ch. 21 
 
 It was further said that here was no point in issue, or, in the lan- 
 guage of the law, nothing in debate, between these parties. So far 
 as regards a formal issue, this is true; and that will apply to every 
 oath collateral to the question at issue. But here the real question be- 
 tween the parties was, shall, or shall not, this debtor be liberated from 
 his imprisonment, unless the creditor will support him? A question 
 of deep interest to one party, and of some importance to the other; 
 a question which the forms of proceeding cannot conceal. 
 
 The court, therefore, are of opinion, and advise the superior court, 
 that the offense charged in this information is perjury, and that there 
 is no error in the judgment of the county court. 
 
 REGINA v. TYSON. 
 
 (Court for Crown Cases Reserved, 1S67. L. R. 1 C. C. 107.) 
 
 At a session of the Central Criminal Court, held on the 10th of 
 June, 1867, and following days, Thomas Tyson was tried before me 
 on an indictment for perjury. It was alleged in the indictment, and 
 appeared in evidence, that at the May session of the Central Criminal 
 Court one Owen Sullivan was tried for a robbery, and that upon that 
 trial Tyson was called as a witness on behalf of Sullivan. The indict- 
 ment went on to allege that upon the trial of Sullivan it was material 
 to ascertain whether Sullivan was or was not at a house, No. 20, in 
 Mint street, in the borough of Southwark, on the evening of the 13th 
 of April, 1867, between the hours of 8 o'clock and 10 o'clock, and 
 whether Sullivan had lived at the same house for two years then last 
 past, or from March, 1865, to March, 1866; and that Tyson falsely 
 swore as such witness, first, that on the 13th day of April, 1867, Sulli- 
 van came to 20 Mint street at half-past 8 in the evening, and did not 
 go out again that evening; second, that Sullivan had lived in the 
 said house for two years then last past; and, third, that during the 
 whole of that time Sullivan had never been absent from the same house 
 for more than three nights together. Perjury was assigned upon 
 each of the above allegations, and the prisoner was convicted on the 
 last two. 
 
 I reserved the question for the consideration of the court whether 
 the two la at ions of Tyson, upon which perjury was assigned, 
 
 were sufficiently material on the trial of Sullivan to support the in- 
 dictment for perjury in ri p< ct of them. 
 
 Kij.i.v, C. B. The real question is whether, on this indictment, these 
 
 two nents were material. We all agree that they were, as they 
 
 led to render nunc probable the truth of the first allegation. When 
 
 it had I "in by the witness thai al the time of the robbery Sul- 
 
 iii Mint street, it tended to render that statement infinitely
 
 PERJURY. 597 
 
 more credible to add, "I, as deputy, know that he lodged there for 
 nearly two years, and never was absent more than a night or two 
 all that time." Under the circumstances, without giving any opinion 
 as to whether the conviction could have been supported if the evi- 
 dence had affected the witness' credit only, we afhrm the conviction. 1 
 
 i Bramwell, B., and Lush, J., delivered concurring opinions. Willes and 
 Byles, JJ., concurred-
 
 INDEX. 
 
 [the figures befee to pages.] 
 
 ABANDONMENT, 
 
 of criminal enterprise. Pinkard, 188; Dill, 224 n. 
 
 notification of. Button, 247 ; Allen, 276. 
 of property by thief. Townley, 393 ; Foley, 39G n. 
 by owner. Edwards, 399 n. 
 
 ABDUCTION, Anderson, 33; Prince, 97. 
 
 ABORTION, 
 
 what is, Mills, 317. 
 
 whether homicide. Bracton, 329 ; Coke, 330. 
 
 ACCESSORY BEFORE THE FACT, 
 who is. Jeffries, 265 ; Hale, 278. 
 distinction between principal and. Kelley, 279. 
 
 direct communication between principal and, not necessary. Cooper, 279. 
 in treason, misdemeanor, and statutory offenses. Tracy, 280. 
 for what acts of principal liable. Saunders, 281. 
 in manslaughter. Bibith, 282. 
 by counseling death of unborn child. Coke, 330. 
 conviction of. Bibith, 282. 
 
 ACCESSORY AFTER THE FACT, 
 
 who is. Robert, 283 ; Davis, 2S3 ; Butterfield, 286. 
 
 distinction between receiver of stolen property and. East, 537; Dyer. 
 538; Gruncell, 539. 
 
 ADULTERER, 
 
 as a receiver of stolen goods. Kenny, 405. 
 
 ADULTERY, 
 
 what constitutes. Roberts, 8. 
 
 jurisdiction of. Grisham, 10 n. 
 
 as provocation to homicide. Mawgridge, 367 ; Grugin, 376 ; Yanz, 382. 
 
 AFFRAY, 
 
 what is. 22 n. 
 
 AGENT, see Principal. 
 
 responsibility for act done for principal. 290 n. ; 17 n. 
 
 ANIMALS, 
 
 maliciously injuring. Cramer, 23. 
 
 killing. Sutton, 187. 
 
 subject of larceny, see Larceny. 
 
 APPEAL, 
 
 of rape. Reginald, 320. 
 
 APPROVING, Britton, 56. 
 
 ARREST, 
 
 homicide in effecting. Leonin, 225; Rice, 225; Storey, 234. 
 homicide in resisting. Miers, 250. 
 
 Mik.Cb.L. (599)
 
 GOO INDEX. 
 
 [The figures refer to pages.] 
 
 ARSON, 
 
 what constitutes crime of. Britton, 568. 
 punishment for. Britton, 56S. 
 intent in. Mirror, 56S ; Hale, 568. 
 the place burnt. Hale, 568. 
 
 what interest in. prevents. Harris. 568; Gowen, 570. 
 the burning in, what is sufficient. Russell, 571. 
 
 ASSAULT, 
 
 what constitutes crime of. Hawkins, 291 ; Daniel, 294; Chambless, 298 n. ; 
 
 Fuller, 299 n. 
 whether intent to harm necessary in. Tuberville v. Savage, 291; Myers, 
 
 292 ; Chapman, 296 ; Chambless, 299 n. 
 by stripping patient. Bartell, 39. 
 by pointing unloaded gun. Chapman, 296. 
 by exposure to danger. March, 292. 
 by communication of disease. Clarence, 299. 
 whether words justify. Grugin, 376. 
 as provocation in homicide. Mawgridge, 367. 
 
 ASPORTATION, 
 
 in larceny, what constitutes. Cherry, 409; Simpson, 409; Wallis, 412; 
 
 White, 412 ; Alexander, 414 ; Gettinger, 415 n. ; Dyer, 53S. 
 necessity for, abolished. 414 n. 
 by innocent agent. Manley, 262; Cummins, 415. 
 
 ATTEMPT, 
 
 distinction between preparation and. Murray, 192; Hurley, 193. 
 what intent necessary. Simpson, 202. 
 
 when full crime impossible. Clark, 196; Jaffe, 198; Foster, 204 n. ; 
 Gardiner, 198 n. 
 
 AUTHORITY, 
 
 public, as a defense. Hale, 224 ; Leonin, 225 ; Rice, 225. 
 
 domestic, as a defense. Bradley, 229 ; Oliver, 229 ; Grey, 230 ; Boyd, 231. 
 
 improper exercise of. Grey, 230. 
 
 BAIL, 
 
 when allowed In homicide. Hawkins, 329. 
 
 BAILEE, 
 
 larceny by. Reeves. 426 ; Meeres, 441 ; Leigh. 442 ; Evans. 4 13 ; Carrier, 
 443 ; Langley, 446 ; Madox, 446 ; Brazier, 449 ; Seinple, 450 ; Thompson, 
 453; Saward, 46S. 
 
 larceny by owner from. Anon., 402; Henry, 402. 
 
 BARRATRY, 
 
 what is crime of. Hatckins. 17 n. 
 
 BATTERY, 
 
 what is. Haickins. 291 ; Cotosworth, 309. 
 
 by Btriking wife. Bradley, 229; Oliver, 229; Richards. 230 n. 
 
 by striking pupil. Boyd, 231. 
 
 by negligent act. Gill, 809. 
 
 by malpractice. Bartell, .".'■». 
 
 by Indirect application of i'nm\ Davis. ::<)!». 
 
 by use of excessive force. Boyd, 231; Floyd, 239. 
 
 consent as a defense In. Beck, 36; Champer, 37; Coney, 37; Bartell, 39. 
 
 as provocation in homicide. Mawgridge, 367i 
 
 BIGAMY, 
 
 what constitutes. Tolson, 101. 
 
 BLASPHEMY, Tayler, 20. 
 
 BREAKING BULK, 
 
 what is. Langley v. Bradshaw, 446; Madox. 446; Brazier, 419 
 larceny by, see Larceny.
 
 INDEX. 601 
 
 [The figures refer to pages.] 
 
 BURDEN OF PROOF, see Proof. 
 
 BURGLARY, 
 
 what is. Britton, 553; Cole, 553. 
 punishment for. Britton, 553. 
 when complete. Brown, 3G5. 
 
 the breaking. Hymns, 553; Dupree, 554; Brice, 555; Lewis, 556. 
 constructive breaking. Le Mott, 557. 
 breaking out, 557 n. 
 
 breaking inner doors. Gray, 5G0 ; Moore, 5G0. 
 the entry. Davis, 55S; O'Brien, 558; Crawford, 559; Gray, 5G0; Moore, 
 
 560. 
 the place broken. Anon.. 5G1 ; Resolution, 561; Anon., 502; Garland, 562; 
 Harris, 563 ; Quinn, 503. 
 
 BURNING, see Arson. 
 
 CARNAL KNOWLEDGE, see Rape. 
 
 of children, a felony. Stat, 320 ; 320 n. ; 326 n. 
 
 CAUSE OF DEATH, see Homicide. 
 
 CHALLENGE TO FIGHT, 
 sending, is criminal. 20 n. 
 
 CHAMPERTY, 
 
 what is. Hawkins, 17 n. 
 
 CHEATS, 
 
 by false tokens. Powell, 27 ; Middleton, 28 ; Stat, 510 ; Jones, 510. 
 CLERGY, 
 
 exempt from service in civil office. Greene, 4. 
 
 benefit of, taken from murder. Hawkins, 350 ; Mawgridge, 3G7. 
 
 COERCION, 
 
 by husband of wife. Ine, 59; Bracton, 59; Connolly, 59; Hughes, 59;. 
 
 Seiler, 61 ; Mafoo, 61 ; Cruse, 61. 
 by command of superior. Memorandum, 62 ; Riggs, 63. 
 by threats of harm. McCarty, 65 ; Brewer, 66 ; Bain, G7 n. 
 effect of, In reducing grade of offense, 67 n. 
 
 COMMAND, see Coercion. 
 
 COMMON LAW, 
 
 of England, whether enforced in federal courts. Worrall, L 
 how far enforced in state courts. Greene, 4 ; 10 n. 
 punishments, how far adopted in United States. James, 6. 
 practice, evidence of. Roberts, 8 n. 
 how far abrogated by statute. Pulle, 9. 
 law of nations, part of. De Longchamps, 18. 
 offenses, 13-35. 
 
 COMPOUNDING, 
 
 what is. 17 n. ; 283 n. 
 
 COMPULSION, see Coercion. 
 
 CONDONATION, 
 
 of party injured as a defense. Roberts, 53; Williams, 53; Carr, 54. 
 of state as a defense. Britton, 56 ; St. John, 56. 
 
 CONSENT, 
 
 effect of, in battery. Beck, 36; Champer, 37; Coney, 37; Bartell, 39. 
 
 effect of, in assault. Chambless, 298; Clarence, 299. 
 
 effect of, in carnal knowledge. 40 n. 
 
 fraud as effecting. Bartell, 39 ; Clarence, 299 ; Don Moran, 320 ; Flattery, 
 
 326. 
 of parent to assault on child. March, 292. 
 effect of, In rape. Don Moran, 320.
 
 G02 INDEX. 
 
 [The figures refer to pages.] 
 
 CONSENT— Continued, 
 
 must be as broad as act. Mitcbum, 429. 
 
 effect of, when given for detection. Speiden, 40; Currle, 43. 
 
 of state, effect of. Hale, 46. 
 
 wben given for detection. Ford, 46 ; Myers, 47. 
 resistance necessary to negative, in rape. Sbields, 326. 
 submission not. 40 n. 
 
 CONSPIRACY, 
 
 wbat constitutes crime of. Bucbanan, 204; Stewart, 219. 
 
 to procure discharge of workmen. Bykerdike, 207; Stewart, 219. 
 
 to raise wages. Sheriff, 20S. 
 
 combinations to resist combinations. Cote v. Murphy, 211. 
 
 to commit adultery. Shannon, 224 n. 
 
 by acting with conspirators. Mather, 224 n. 
 
 abandonment of. Dill, 224 n. 
 
 CONSTRUCTIVE INTENT, see Intent 
 
 CONTEMPT, 
 
 what is, 17 n. 
 
 power of courts to punish. Worrall, L 
 
 CONTRIBUTORY GUILT, 
 
 of person injured as a defense. Martin, 51. 
 
 CONTRIBUTORY NEGLIGENCE, 
 
 as a defense. Longbottom, 49 ; Hawkins, 332 ; Rew, 333. 
 
 COOLING TIME, 
 
 what is. Hill, 371; McCants, 373. 
 
 CORPORATIONS, 
 
 not indictable at common law. Anon., 182. 
 for what crimes indictable. Kelso Co., 182, 
 
 CORRECTION, see Authority. 
 
 CORRUPTION IN OFFICE, 
 is criminal. Williams, 14. 
 
 COURTS, 
 
 what, have jurisdiction of spiritual offenses. Grlsham, 10 n. 
 
 CUSTODY, see Possession. 
 
 CUSTOM, 
 
 as a defense. Lawrence, 57. 
 
 of courts, as evidence of law. Roberts, 8 n. 
 
 DECENCY, 
 
 offenses against. Bell, 30; Williams, 32; Anderson, 33. 
 
 DEFENSE, 
 
 of Belt Marshall, 1G9; Howell, 234; Anon., 238; Snell, 2.12. 
 must be proportioned to attack. Floyd, 239. 
 when necessity only apparent. Goodall, 239. 
 
 duly to retreat. Rowe, 242; Gardner, 244; Greer, 253; Button. 247. 
 when withdrawal revives right of. Button, 247. 
 in resisting illegal arrest. Rice, 225; Miers, 250. 
 how pleaded. Hawkins, 329. 
 of ol tiers, extent of riirht. Nash, 139; Snell, 252; Greer, 253; Morrison, 
 
 254 | Mawgridge, 867. 
 of property, extent of right. Ilinchcliffe, 250; Morgan, 250. 
 of duelling, extent of right Braoton, 257; Cook, 258; Ford, 259; Carroll, 
 259; Taylor, 261. 
 
 DELIRIUM TREMENS, 
 us a defense. Haab, 170. 
 
 DELI SION, 
 
 as a defense. McNaughten, 145; Machekequonabe, 188; Tiotenm. MS.
 
 INDEX. 603 
 
 [The figures refer to pages.] 
 
 DESTROYING PROPERTY, 
 
 whether larceny. Anon., 486; Cabbage, 487. 
 
 DRUGS, 
 
 habitual use of, as defense. Wilcox, 180 n. 
 
 DRUNKENNESS, see Intoxication. 
 
 DWELLING HOUSE, 
 
 what is. Resolution, 5G1 ; Anon., 562; Garland, 562; Harris, 563; 
 
 Quinn, 563. 
 larceny from, see Larceny. 
 
 DURESS, see Coercion. 
 
 EAVESDROPPING, 
 
 is indictable. Williams, 32. 
 
 ECCLESIASTICAL OFFENSES, 
 
 whether punishable in the United States, 10 n. ; Anderson. 33. 
 
 ELECTIONS, 
 
 procuring false return of votes at, Indictable. McHale, 14. 
 
 EMBEZZLEMENT, 
 
 what is. Stat., 505. 
 
 what is a receiving "by virtue of employment." Smith. 505 ; Snowley, 
 
 506; Aston, 506. 
 what is a receiving "for or on account of another." Cullum, 507. 
 whether an offense distinct from larceny. 509 n. 
 conviction of, on indictment for larceny. 509 n. 
 
 EMBRACERY, 17 n. 
 
 ENGLESCHIRE, 
 
 presentment of. Haickins, 350. 
 
 ESCAPE, 
 
 is criminal. 17 n. 
 
 what force may be exerted to prevent. Rice, 225. 
 
 from unlawful arrest, what force may be exerted to prevent. Miers, 250. 
 
 EX POST FACTO LAWS, 
 effect of. Thurston, 132. 
 
 FALSE IMPRISONMENT, 
 
 what is. East, 315; Smith, 315; Bird v. Jones, 316 n. 
 as provocation in homicide. Mawgridge, 367. 
 
 FALSE PRETENSE, OBTAINING PROPERTY BY, 
 
 condoning. Carr, 54. 
 
 declared criminal. Stat., 510. 
 
 distinguished from larceny. Stewart, 470; Williams, 477; Middleton, 47S ; 
 
 Canter, 512. 
 what property subject of. Cummings, 511. 
 whether owner must intend to pass title. Canter, 512. 
 when property is obtained for another. Musgrave, 513 n. 
 whether pretense must be false. Spencer, 513. 
 
 whether pretense must be known to be false by one making it. Bird, 527. 
 whether pretense must be of existing fact. Lee, 514. 
 pretense by acts. Murphy, 515; Jones, 510. 515. 
 pretense by misrepresentation of quality. Bryftn, 516; Ardley, 523. 
 whether pretense must be false at time of obtaining. Wheeler, 523 n. 
 whether actual loss necessary. Spencer, 513 ; Evans. 513 n. 
 extent to which pretense must be relied on. English, 526 ; Gardner, 528 ; 
 
 Whiteman, 531. 
 whether absurdity of pretense material. Bird, 527. 
 remoteness of pretense. Gardner, 528; Button, 530. 
 intent necessary. Williams, 534; Stone. 535; Naylor, 535.
 
 G04 INDEX. 
 
 [The figures refer to pages.] 
 
 FALSE TOKEN, see Cheats. 
 
 FELONY, 
 
 force in prevention of. Leonin, 225; Howell, 234; Storey. 234. 
 misprision of. Hawkins, 17 n. 
 
 FIGHTING, 
 
 by agreement, when a battery. Champer, 37 ; Coney, 37. 
 homicide in. Mawgridge, 367. 
 
 FOETUS, see Homicide. 
 
 FOOD, 
 
 selling unwholesome, indictable, 27 n. 
 
 FORGERY, 
 
 what is. East, 572: Smith, 574. 
 
 of receipt. Ward. 572. 
 
 of trade labels. Smith, 574. 
 
 of will of lands. Wall, 576. 
 
 of invalid bill of exchange. Teague, 576. 
 
 tendency of instrument to deceive. Baldwin, 578; Wall. 576: Teague, 576. 
 
 by signing name of nonexistent person. Lockett, 577. 
 
 bv filling in blank check. Wright, 5S1. 
 
 bv obtaining signature by false representations. Sankey, 5S1. 
 
 intent necessary in. Sheppard, 582 ; Hodgson, 5S3. 
 
 FORNICATION, 
 
 whether indictable. Anderson, 33. 
 
 FRAUD, 
 
 effect of consent obtained by. Bartell, 39; Don Moran, 320; Flattery, 326 
 by suppression of truth. Clarence, 299. 
 
 GAMING HOUSE, 
 
 whether keeping, criminal. 32 n. 
 
 GAS, 
 
 whether subject of larceny. White, 412. 
 
 (J It AND LARCENY, 
 what is. Hale, 497. 
 value in, how estimated. East, 498; Maggard, 497 n. ; Hathaway, 4f)7 n. ; 
 
 Brown, 497 n. 
 distinction between several petit larcenies and. Hale, 497; Jones, 497; 
 
 l'.irdseye, 498. 
 
 GUILT, 
 
 of party injured whether a defense. Martin, 51. 
 
 HEALTH. 
 
 offenses against public. Taylor, 20; Vantandillo, 26. 
 
 HOMICIDE, see Murder; Manslaughter. 
 
 by negligence. Senior, 77; Mirror, 117: Hull, 117; Knight, 11S: Rig- 
 
 maldon, 119; O'Brien, 120; McCloud, 122; Westrupp. V2A; Fain, 1L2U a.; 
 
 Marriott, 128; Pocock, 131. 
 In effecting arrest. Leonin, 225; Rice, 225; Storey, 234. 
 in resisting arrest Mlers, 250. 
 in prevention of crime. Howell, 234; Storey, 234. 
 whal is. Bracton, 828. 
 the several kinds of. Hawkins, -".'-8. 
 bv misadventure. Roger, 828 a. 
 
 destruction of foetus as. Bracton, 329; Cni-e, 830; Brain, 830. 
 cause of deatb In. Jackson, 831 n.j Hawkins, 881; Gore, ."..".-; Row, 333; 
 
 Buggins, 334; Towers. 335; Hickman, 886; West, 887; Bennett, 338; 
 
 Lewis, 340; Taylor, 846; Benge, 889; Elsenhower, 345 n. 
 by causing premature birth. West, 337. 
 
 HOUSE ee Dwelling House.
 
 INDEX. 60j 
 
 [The figures refer to pages.] 
 IGNORANCE, see Mistake. 
 INCITEMENT, see Solicitation. 
 
 INDECENCY, 
 
 whether indictable. Bell, 30. 
 
 INF the C n Y a defense. Item, 143; Godfrey, 143; Manley, 262; Foster, 204. 
 
 INS tK defense. Beverley, 145; McNaghten, 145; Hptema 148; Mosler, 
 1.-.0- Knight, 152; Lowe, 156; Jones, 157; Fain, 1G8 n. ; Haab, 176. 
 induced by drugs. Wilcox, 180 n. ; Rogers, 181 n. 
 
 INTENT, 
 
 essential to criminality. Bacon, 73. . co 1C „ n 
 
 whether anciently punishable without act. Bacon 188. IRS n 
 union of act and, essential to criminality. Toes, 12 ; Matthews, lbb, Jin 
 
 ton, 186 ; Sutton, 187 ; Pinkard, 188 ; Bacon, 188. 
 implied from act. Regan, 76. 
 whether question of law or fact Sheppard, 5W. 
 
 23££rS£ , S&£ L ffiSlS&Fa.. Latimer, 80; 
 
 conSetive; wheM ^uSt^Franklin, 86; Adams, 88; Bembliton, 
 
 whetne^TecesSy in statutory crimes. Adams, 88; Prince, 97; Tolson, 
 
 S pldfiV R whon h pr 1 o 1 o 1 r of essential. Duffln, 92; Holt, 93; Doddridge, 94; 
 Pembliton, 95; Williams, 114; Rogers, 1S1 n. 
 
 how proved. Simpson, 202. 
 when several, concur. Williams, 114 ; GiUow, 115. 
 supplied by negligence. See Negligence. 
 
 see, further, under the several crimes. 
 
 T^T'O^vTC 1 VTION 
 
 in performance of duties of public office, indictable 14 n. 
 
 when a defense. Beverley, 169; Flanigan 1 ,o ; Haab, lift 
 
 effect when specific intent necessary. W bitten, 181; Rogers, 1S1 n. 
 
 effect in causing mistake of fact. Marshall, 169. 
 
 effect as bearing on question of provocation. Thomas, 169; Keenan, liO. 
 
 IRRESISTIBLE IMPULSE. 
 
 to kill. Mosler, 150; Knight, 152; Lowe, 156; Jones, 157. 
 to drink. Flanigan, 173. 
 
 JURISDICTION, . Wrtl . r „ii 1 
 
 of federal courts over common-law crimes. Worrall, 1. 
 when Sods stolen in one, are brought by thief into another. Butler, 430 ; 
 Stinson, 430. 
 
 JUROR, m . ... ., ,_ „ 
 
 preventing attendance of, indictable. 17 n. 
 
 JUSTICE. _ 
 
 offenses against public. Anon., 13 et seq. 
 
 disobeying order of. 16 n. 
 JUSTIFICATION, see Authority; Defense, 
 
 KIDNAPPING, Mgt _ 0i _ „ 
 
 what is. East, 315 ; Designy, 316 ; Burns, 316 a. 
 
 KLEPTOMANIA, 
 
 whether a defense. Lowe, lu6.
 
 606 INDEX. 
 
 [The figures refer to pages.] 
 
 LARCENY, 
 
 what is. Bracton. 3S6 ; Holloway, 3S6. 
 property subject of. 
 
 animals ferae naturae. Anon.. 3S6; Searing, 387; Townley, 393. 
 
 animals reclaimed. Haywood, 3S7 n. 
 
 dung. Carver v. Pierce, 3SS. 
 
 writings concerning realty. Westbeer, 3SS. 
 
 things of value to owner only. 3S7 n. 
 
 fixtures. Hoskins v. Tarrence, 3S9. 
 
 choses in action. Watts, 389. 
 
 gas. White. 412. 
 
 things abandoned. Edwards, 399 n. ; Sikes. 399 n. ; Haynes, 400. 
 
 severed realty. Foley, 396 n. ; Steimling, 397. 
 from thief. Anon., 400; Ward, 401. 
 by owner. Anon.. 402: Henry, 402. 
 
 by wife. Anon., 405: Kenny, 405; Willis, 408; Streeter, 543. 
 by joint owner. Bramley, 407. 
 from the person. Simpson, 409. 
 the caption and asportation. Cherry, 409 et seq. 
 by servants. Dingley, 416; Bull, 418: Sullens, 419; Masters, 420; Reed. 
 
 ' 422 ; Reporter's Note, 463 ; Anon., 463 ; Paradice, 464. 
 by bringing stolen goods into another jurisdiction. Butler, 430; Stin- 
 
 son, 430. 
 of lost goods. Matthews. 186; Merry v. Green, 431; Thurborn, 434; 
 
 Brooks, 438 ; Lawrence, 440. 
 whether appropriation by bailees is. Reeves, 426; Meers, 441; Leigh, 442; 
 Evans, 443 ; Madox, 446 ; Saward, 46S ; Semple, 450 ; Thompson, 453 n. 
 appropriation by bailees after breaking bulk. Carrier, 443 ; Lungley, 446 ; 
 
 Madox, 446; Brazier, 449. 
 by appropriation of property delivered by mistake. Hehir, 453; Ashwell. 
 
 ' 450 n. ; Middleton, 478. 
 from a vessel. Madox, 446. 
 when title is parted with. Thomas, 464; Wilson, 472; Nicholson, 473; 
 
 Middleton, 478. 
 by trick. Stewart, 470; Robson, 475; Skilbrick. 476; McGrath 478. 
 how distinguished from false pretense. Stewart, 470; Williams. 477- 
 
 Middleton, 478; Canter, 512. 
 intent necessary in. Fisherman, 4S6 et seq. 
 from dwelling. 
 
 not distinct crime at common law. East, 499. 
 
 property must be under protection of. Owen. 499. 
 
 whether stealing in own house is. Taylor, 500. 
 lucri causa in. Anon., 4S6 ; Cabbage, 487; Richards, 490; Jones, 491. 
 
 see Grand Larceny. 
 
 LEASING, 
 
 for Unmoral purposes indictable. 32 n. 
 
 LIBEL, 
 
 of deceased person. De Libellis, 585. 
 
 forms of. !>'• Libellis, 585; Gathercole, 5S6 n. 
 
 truth as a defense in. ]>e Libellis, 585; Stat., 5S5 ; Blandlng, 5S7. 
 
 publication of, what is. Giles, 586. 
 
 privileged communications. Blandlng, 5S7. 
 
 LOCALITY, see Jurisdiction. 
 
 LOCUS ri;.MTi:vi i.i:. see Abandonment 
 LUCE1 CAUSA, see Larceny. 
 
 MAINTENANCE, 
 
 what is. Hawkins, 17 n.
 
 INDEX. 607 
 
 [The figures refer to pages.] 
 MALICE, 
 
 meaning of. Pembllton, 95; Honeyman, 352; Chance, 354 n. 
 implied in killing. Huggins, 334; Greenwood, 338; Halloway, 351 ; Houey- 
 man, 352. 
 
 MALICIOUS MISCHIEF, 
 
 what indictable. Cramer, 23. 
 
 MANSION HOUSE, see Arson ; Burglary. 
 
 MANSLAUGHTER, 
 
 by negligent act. Longbottom, 49; Franklin, 86; Knight, 118; Burton, 
 
 118; Rigmaidon, 119; Hardie, 119; O'Brien, 120; Macloud, 122; 
 
 Benge, 339. 
 by negligent omission. Senior, 77; Westrupp, 124; Marriott, 128; Po- 
 
 cock, 131. 
 by infecting with disease. Greenwood, 338. 
 provocation sufficient to reduce murder to. Mawgridge, 367 ; Grugin, 376 ; 
 
 Yanz, 382 ; Spivey, 375 n. 
 what is voluntary. Mawgridge, 367. 
 
 heat of blood and cooling time. Hill, 371 ; McCants, 373. 
 fear, whether sufficient to reduce murder to. Nargashian, 385 n. 
 
 MAYHEM, 
 
 what is. Foster, 310. 
 
 MENS REA, 
 
 meaning of. Tolson, 101. 
 
 MISPRISION, 
 
 what is. Hawkins, 17 n. 
 
 MISTAKE OR IGNORANCE, 
 
 of law as a defense. Thurston. 132 ; Boyett, 132 ; Cutter, 135. 
 of fact as a defense. McDonald, 137 ; Ashton, 67 ; Tolson, 101 ; Reppeth. 
 Ill ; Isham, 81 ; Prince, 97 ; Hawksworth, 137 ; Machekequonabe, 138 ; 
 Nash, 139; Goodall, 239; Yanz, 382. 
 effect of, in giving possession. Hehir, 453. 
 
 in passing title. Hehir, 453 ; Middleton, 478. 
 
 MOTIVE, 
 
 whether material. Schmidt, 75; Regan, 76; Senior, 77. 
 
 MURDER, 
 
 what is. Hawkins, 350. 
 
 what is, in first degree. Keenan, 170 ; Stat., 360 ; Drum, 361 ; Brown, 365. 
 
 what is in second degree. Stat., 360. 
 
 in attempt to commit burglary. Brown, 365. 
 
 in resisting arrest. Rice, 225; Pew, 352; Cook, 258. 
 
 in excessive correction. Grey, 230. 
 
 time within which death must ensue, to be. Hawkins, 332. 
 
 by neglect to provide necessaries. Marriott, 128. 
 
 by cruel acts. Halloway, 351 ; Honeyman, 352. 
 
 in commission of a felony. Horsey, 355; Serne, 366. 
 
 in commission of suicide. Level le, 359. 
 
 MUTINY, 
 
 necessity as a defense in. Ashton, 67. 
 
 NATIONS, LAW OF, 
 
 whether part of common law. De Longchamps, 18. 
 
 NECESSITY, 
 
 as a defense. Ashton, 67 ; Dudley, 70 n. ; Goff, 71 ; Holmes, 71 n. ; Mc- 
 Carty, 65. 
 
 NEGLIGENCE, see Contributory Negligence. 
 
 what are culpable acts of. Longbottom, 49; Hull, 117; Burton, US; 
 Knight, 118; Rigmaidon, 119; Macleod, 122; Fain, 122 n. ; Gill, 309; 
 Hawkins, 331.
 
 608 INDEX. 
 
 [The figures refer to pages.] 
 
 NEGLIGENCE— Continued, 
 
 what are culpable omissions. Senior, 77; Mirror, 117; O'Brien, 120; 
 
 Westrupp, 124; Marriott, 128; Pocock. 131. 
 in testifying, whether perjury. Moore, 593 n. 
 concurrent Benge, 339; Eisenhower, 345 n. 
 
 NIGHTWALKING, 
 
 whether indictable. 32 n. 
 
 NOISES, 
 
 unlawful. Smith, 22. 
 
 NUISANCE, 
 
 noises as. Smith, 22. 
 
 keeping explosive. Taylor, 26. 
 
 exposing infected person. Vantandillo, 26. 
 
 obstructing navigable river. 26 n. 
 
 obstructing highway. 26 n. 
 
 OBSCENITY, 
 
 public, whether indictable. Bell, 30. 
 
 OBSTRUCTING OFFICERS, 17 n. 
 
 OFFICE, 
 
 refusing to accept, whether indictable. Greene, 4. 
 abuse of, whether indictable. Williams, 14. 
 
 OFFICERS, see Arrest. 
 
 OWNERSHIP, 
 
 necessary to larceny. Haynes, 400. 
 
 what is, in larceny. Anon.. 400; Ward, 401; Anon., 402; Henry, 402; 
 Bramley, 407; Willis, 408. 
 
 PERJURY, 
 
 what is. Cnut, 502; Coke, 592. 
 
 whether knowledge of falsity of oath necessary. Moore, 593 n. 
 
 whether authority to administer oath necessary. Custodes v. Gwinn, 592. 
 
 by swearing truly. Gnrneis, 593. 
 
 materiality of oath. Hattaway, 593; Tyson, 596. 
 
 "course of justice," what is. Arden, 594. 
 
 PLEDGING PROPERTY, 
 
 of another, whether larceny. Wright, 4S9; Phetheon, 4S9 n. ; Trcbilcock, 
 489 n. 
 
 POSSESSION, 
 
 what is. Ilehir, 453; Wiley, 545. 
 
 of trespassers. Townley, 393; Foley, 396 n. ; Steimltng, .",97 ; While, 42('». 
 
 of thief. Anon., 400; Ward, 401. 
 
 as between master and servant. Dingley, 416; Bull, 41S; Sullrns. 41!); 
 
 Masters, 420; Reed, <r_'2; Reporter's Note, 463; Paradice, 464; Saw- 
 
 a nl, 468; Mont nihil, 409; Gruncell, 539. 
 what preliminary, necessary in larceny. Dingley, 416 et Beq. 
 of property delivered by mistake. Ilehir, 45:;; Ashwell, 456 n. 
 distinction between custody and. Reporter's Note. 163 et seq. 
 
 PREVENTION OF CRIMES, 
 
 what force may be used in. Leonin, 225; Howell, 234; Storey, 234. 
 See, :iiso, Defense. 
 
 PRINCIPALS, 
 
 who are. Hale, 262; Dade, 268; Jeffries, 265. 
 when Innocent agent employed. Manley, 262. 
 
 in second degree, who are. Griffith, 266; Hanson v. Ossley, 207; Thorn- 
 tun. 267; Ramon, 268 Q. 
 constructive presence Poynier, 209.
 
 INDEX. 609 
 
 [The figures refer to pages.] 
 
 PRINCIPA LS— Continued, 
 
 whether mere presence makes. Thornton, 207. 
 
 liability as, for acts growing out of common design. Mercer^mith, 273 . 
 
 Allen, 270. 
 liability for acts of agent Stevens, 2S8. 
 
 PRISON BREACH, 17 n. 
 
 PRIVILEGED COMMUNICATIONS, see Libel. 
 
 PROOF, 
 
 of cooling time. Hill, 371; McCants, 373. 
 
 PROVOCATION, 
 
 whether words can be. Mawgridge, 367; Spivey, 375 n. ; Grugin, 378. 
 
 effect of drunkenness in heightening. Thomas, 160; Keenan, 170. 
 
 Insulting gestures as. Mawgridge, 367. 
 
 trespass as. Mawgridge, 307. 
 
 assault as. Mawgridge, 367. 
 
 restraint of liberty as. Mawgridge, 367. 
 
 adultery as. Mawgridge, 367; Grugin, 376; Yanz, 382. 
 
 excessive violence as. Hill, 371. 
 
 blow by woman as. Mosler, 375 n. 
 
 rape as. Grugin, 376. 
 
 effect of mistake as to cause of. Yanz, 3S2. 
 
 RAPE. 
 
 what is. Braeton, 319. 
 
 effect of consent in. Reginald, 320; Don Moran, 320. 
 
 when consent obtained by fraud. Don Moran, 320; Flattery, 326. 
 
 on imbecile. Don Moran, 320, 321 n. 
 
 on child. W. D., 319. 
 
 punishment of. Braeton, 319; Stat., 319, 320 n. 
 
 on unconscious woman. Don Moran, 320. 
 
 by personating husband. Don Moran, 320, 324 n. 
 
 meaning of "force" in. Don Moran, 320. 
 
 resistance necessary. Shields, 326 n. 
 
 incapacity to commit. Waite, 326 n ; Coleman, 326 n. 
 
 by husband on wife. Haines, 327; Frazier, 327 n. 
 
 when complete. 326 n. 
 
 as provocation in homicide. Grugin, 376. 
 
 RECEIVING STOLEN PROPERTY, 
 
 made substantive crime. East, 537 ; Streeter. 543. 
 
 character of the property received. Jaffe, 198; Kenny, 405; Dyer, 538; 
 Gruncell, 539; Schmidt, 539; Streeter, 543. 
 
 form of the property received. Cowell, 537. 
 
 distinction between receiver and accessory. Dyer, 538; Gruncell, 539. 
 
 what acts constitute receipt. Wiley, 545; Woodward, 546; Sinclair, 
 546 n. 
 
 guilty knowledge, what is. Frank, 548; Caveness, 548. 
 
 guilty knowledge must exist at time of receipt. Woodward, 546; Cave- 
 ness, 548. 
 
 intent, what sufficient Caveness, 548; Davis, 549; Wiley, 550; John- 
 son, 549 n. 
 
 receiving for owner. Wiley, 550. 
 
 RELIGION, 
 
 offenses against Tayler, 20. 
 
 RESCUE, 
 
 whether indictable. 17 n. 
 
 RIOT, 
 
 indictable. Morrison, 13. 
 what is. Hawkins, 22 n. 
 inciting to. Haines, 21. 
 
 Mik.Cb.L— 39
 
 610 INDEX. 
 
 [The figures refer to pages.] 
 
 ROBBERY, 
 
 what is. Bracton, 500. 
 
 by taking from presence. Wright, 501; Hill, 503. 
 
 violence in. Davies, 501; John, 501 n. 
 
 violence in, must precede taking. Harman, 501. 
 
 by menaces. Hughes, 502. 
 
 by threat to accuse of crime. Edward, 502; Thompson, 502 n. 
 
 SCANDALOUS WORDS. 
 
 when indictable. Darby, 13. 
 
 SCOLD, 
 
 punishment of. James, 6. 
 
 SODOMY, 
 
 is indictable. 32 n. 
 
 SOLICITATION, 
 
 when indictable. Bacon, 1SS; Higgins, 189; Hutchinson, 190. 
 
 SOMNAMBULISM, Fain, 168 n. 
 
 STATE, 
 
 consent by, see Consent. 
 
 STATUTES, 
 
 as to intent, see Intent. 
 
 SUBMISSION, Day, 40 n. 
 
 SUICIDE, 
 
 what is. Hawkins, 328. 
 
 murder in attempting. Levelle, 359. 
 
 THEFTBOTE, 
 
 what is. East, 537. 
 
 THREATS, see Coercion. 
 
 TRADE, 
 
 offenses against. Powell, 27; Middleton, 28. 
 
 TREASON, 
 
 petit, what is. Blackstone, 350. 
 coercion as a defense. McCarty, 65. 
 
 TRAITOR, 
 
 drinking health of, indictable. Anon., 13. 
 
 TRESPASS, 
 
 whether retroactive. Milton, 186. 
 as provocation in homicide. Mawgridge, 367. 
 necessary to larceny. Hawkins, 416. 
 
 continuing trespass. White, 426; Butler, 430; Stinson, 430. 
 see Larceny. 
 
 UNLAWFUL ASSEMBLY, 
 what is. 22 n. 
 
 VESSEL, 
 
 larceny from. Madox, 446. 
 
 WATER, 
 
 whether selling unwholesome, Is indictable. 27 n. 
 
 WITNESS, 
 
 whether preventing attendance of, is Indictable. 17 n. 
 
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