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' \ - _. .' 15. oBtAXNiws pROPBRTy UNDBR ?ALaa pii^aSKcsa^ * 145, / 52, 81. 152, bl e^^ I • / 1 CRIMINAL L A W — P R F E .S S R B i) A L B • 18 9 6-7, Eibliogi'aphyo English authorities before 19th Century: Hall - Pleate/the crovm,, Hawkins - " " ''' East - » a » After i9th' CeVitury I3lac]< stone - Tk, 4-0 Russell - CroiiieB and Llisdenieanors, Anerican authorities: Bishop -• Criiiiinal Lav/o * Criuiinal Proeeed-ure « * S tat lit ory C-rhne s « " IndictLientSo • Wharton - Criminal Lav,r c Stephen - Digest of Criminal LaVo May - Criminal Lav; - Student's edition, 1393, IIITRODUCTION, The method advisable tri the study of cases in criminal law liiay be divided into seven heads. 1, Point in issue » 2, Argument e« 3-, Decision -- how- decided and on what grounds, 4» '(Kiy 3 decided, 5, Own opinion of decision and reasoning. 6', Defense of that opinion, 7, Construction of the ge-neral rule in crL.dnal lav; on which the case in question restSo In genei'al - it is impossible to distinctly separate this branch of the law from any other department for CL. Law pre- sents more del-icate points and minute distinctions tharx the other branchCFio Treatises - Of the earliest treatises on crimes and ,GL', Law, kno'wn as Fleas of the Crown, three are excellent :- Hall, Hawkins, and .Cast o Hawkins is by far the best. H\ aV^> T 3 SGSSur Criniinal Proceedure, The riatural way to deal with crimes is by the State, be- cause they are supposed to be injuries to the Public - more ■ than to individuals. In -very early times in England there were no public officers for the prosecution of criminals,, hence crimes were puriished as private wrongs by suits batween the parties ' The earliest fonn of crimirial prosecution wag by *Appeall Either the injured person or some relative came into court and "Appealed" the wrong-doer - that is, called upon him to defend, himself In the early days this v/as the only torra. of securing the puTiishment of crimes. Later there grew up a system of pro-tection by mutual guarenty (Frank Pledge ) or by hue and cry. This system of private protection and private prosecuticai Vifas in vogue till recent times j' The "Appeal" was not formerly abolished in England until 1818. Alongside of it-, however, grew up the modern system of criminal prosecutiona The "Appeal" was quit-e a flourishing form uritil about the middle of the 17th century. Arid in some places it was the favorite system up to that time, because the whole prosecuticai was in the hands of the injured party; and the crown coul- and theri there- is no is3i..e and nothing to tryo Sentence is then passes. 2, hot guilty - i. e, he de-nies the ti'utri, of the indictment and raises an issue of facto 3, He may say nothing and in this case the plae of "not guilty" is- entered for hixa. At the earliest co;:imon lav/ the regular method of trying aciiusations was by battle or ordeal. In trial by battle the parties were broug;-:t into the lists armed in a pe- culiar way - lo £, with a cord aroud the arm and a sharpened stick in the hand, this v/as now a fatal-fight but a stx-uggle to see which would overpower the other before svinset „ If the defendent won he was aquitted and the plaintiff v/as hanged. If the plaintiff won the defendant v;as hanged. This, as the ordeal also was considered as an appeal to Heaven; the ques- tion in the ordeal being whether his wound, inflicted by a ■ red-hot iron, would heal in a healthy uiarmer; this was in the ordeal by fire and in the ordeal by T;ater, whether the acc^«8ed would sirik or float. The Roman Church at last forbad any person in orders fron being present or having anything to do with ordeals, and at that tiiue the judges and riearly all educated men were in or- ders; so this prohibition by the Church was perfectly suc- 4 cessful in abolishin^':, ordeals in Erigland, 3o the question < ai'ose how "bo try a criminal. It was finally settled that a i.-^an was to be co::ipelled to ask to be tried by a petit jury, and this election to be trifd b;, a- jury came to be considered as part of the pleading it" aelf » So if a laan plead at all he v.'aB considered as asking for a trial by jury and thus if a jiian refused to plead there v/as a difficulty because he had the leral rig,ht to be tried by an ordeal. Gonsequeritly the courts ordered that a ivan ':fh.o stood iuute should be induced to plead, which inducement con- sisted of j..i;ttin£ hini on his back with a weight on his chest and in feeding hiin with stale bread arid stagnant water on al- ternate daySo nevertheless, there were some cases in which the prisoner persisted in dyiiig ija-ider this treatment because if he did not plead his property v;ent to his family, wl^ile if he was tried and convicted iiis goods were forfeited to the Xing. The first modification introduced was that if the defendant re- fused to plead a jury should be impanelled to see if he was mute by visitation of Crod. or obstina&ely refused to plead, In the first case the court entered a plea of not guilty for him; but it was not till 12 Geo. 5rd. that where a man refused to plead a plea of guilty \7a3 entered for hin\. This was su- perceeded again later and a plea of not guilty entered for him^ which custom is followed everywhere in this country » In IT, K. and in some other states one v;ho pleads guilty of murder is not at once sentenced, but a jury is Liipanelled to see if he is guilty of murder in the first degree, for in some states a defendarit cariiiot plead guilty of x/turder in the first degree^ But the function of the jury in ti\is case is not that of a trial jury, but that of an inquiry; it is the sairie sort of thing as when a man admits that he has committed a toi't by failing to reply to the declaration and the court must ia>i:anell a jury of inquiry bo ascertain the amount of daiiiages o V/e virill suppose now, however, that the defendarit has pleaded not guilty. The- next step is to secure a jury, which is called the petit jury. This jury is collected from the county in the same way as a grand jury, A number of men are suminoried into court from v/hich 12 men must be selectedo the name of each are read by the court arid as each one is caijLed eithei* th-e goverriruent or the defense has the rigl^t to chal- lenge him. In nearly all states each side can challenge a number peremptorily without cause, but after 'that number is exiiauuted they only challenge with good cause. The jury is next sworn, the indictment read to them and the trial heid» If the verdict is g^ailty the court proceeds to sentence the prisoner. At this point it is the habit of the court to again hear a certain amount of evidence as to the- 5 liatui'.e oi'' tLe ci'i:.:e, the charactei' of the def eriviant , etco, be-' foi' paBsing on his punishivierit , Howevei", the aoioiirit of pun- •• isriniGnt ia aliaost always rer,ulated. in U, "^ , by certain limits* the Def t is always allowed an opportunity to state reasons why sentence should not be pronounced v^.pon him, and in capi- tal offences he cannot even waive his privilege of bein^, pre- sent arni having this question asljed hiiri. In early tinios this v/as the point for alleging benefit of clergy, \7hich v/as the right to be punished by the eccles- iastical anrio This rigiit however, was luodified in iviany ways before it finally disappeared. Pirst , those claiiriing benefit of clergy were branded so that the church could not secure this right for the sanie person the second tin'ie, except for those actually ministers. Second - It caxrie to be considered that anyone who could read was a clergyman and in that case they \7ere allowed to be bi'anded; the church never directly inr- flicted capital punish^ment. Third - Finally in the reign of ■ Kenry Sth all serious crimes were excepted froru the benefit' of clergy such as rr;urder, higtiW-ay robbery, buglary, areon, etco where death v/a 3 the sentence. Later the entire custom was abolished; the benefit of clergy in the U, S, existed to some extent till the revolution. The Presence of the Accused at the Trial, The deft, miTSt be present at his a^ri'aigrixnent except in some crimes of little importance. He v/as also entitled to be present at ev- ery stage of the trial and no trial could take place v/ithout his preaence, except with his consent, oiitside of some very small misdemeanors. If the offence is a capital one the de- fendant carinot waive his right to be present at all stages, • but in others he may either waive it or forfeit it by his own misconduct. However, the hearing on points of law after the verdict is not a part of the trial arid so his attorney may then represent him. If the indictment does not state facts enough the deft caji demur, 2ut if he does not demur and the verdict is found against him he can yet move ari arrest of judgement on the ground thao the facts stated in the indictment do not con- stitute a. crime. This motion has the sane effect as a demur- rer, except that it is made after the facts stated have been ■ found ti'ue , Felonies v Misdemeanors, The original distinction be- tween felonies and misdemeanors v/as that the former included those punishable by death, the latter all others; but v/ith the abolition of the death penalty for most offences this dis- tinction fell into disuse. Now felonies are considered ae those offences which are punishable by imprisoruvient in the states prison J misdemeanors as all- others* So nearly all uri- classified crimes are misdemeanors, 6 CHAPT£"R ONE. ' Sou.i-ces of Criiiiirial Law. COIvlIviOilV^iCALTH v KIIOWLTOII, p. 1. Indictment at the court of CoMiion Sessions of the Peace for daniraing up a stream so that fish could not pass. Defendant v/ar. convicted and sen- tenced in the court of Corxiaon Pleas, successor to the Ses- sioriSo Motion for arrest of judGeaent because by law tij.Q -said indictinent did not lie at the COTmion Ses'?ions and the Common Pleas as its successor had no jurisdiction over the offence, FfiliD, the Court of Sessions by the statvite of 1732 was empow'- ered to hear matters relating to the conservation of the peace, and such offences cornizable by them at common law or by the acts of the ie£,islature . 2 ~ the Common Lav/ of I.iass. is the Coi.Taon La"./ of England as amended and expanded by sta- tutes up to the time of the emiiiigration, arid such statutes as \:ere applicable up to the Revolution. 3 - The Sessions at the time of the en-jTiigration, in £n£.larid, had jurisdiction ■: over all trespasses which were against the Lav/. 4) This of- fence is not one at common Lair/ but a new one creaied by sta- tute, arid the Sessions before 1804, or the Couimon Pleas since, ?iOt having jurisdiction by Common Law nor expressly by statute no crLi.e is conimitted in this court. vr.xat ds COifimon Law in the U, S.? 1 - The old English Comi.ion Lav/„ 2 - The statute lav/ in England before the emmi- gi'ation, 3 - Acts of Parliament between the settlement and the Revolution, so far as they apply. 4 - The acts of the general court under the Charters as far as they v/ere allowed to continue in force. On the other hand the Provincial Leg- islatures were legal lav/-nia] V Hudson, p. 3. Derxxurrer to indictment for libel against the Pres. of U . S, and- Congress. This case was sent from tlie Circuit Cotzrt of Corm* to the Supreme Court of the U, So J to decide v/}. ether the Cdrcuit Court had a Cor.¥.iOri La-^ jurisdiction in cases of libel.' HELD, that the U. S. Gov- erriment is one of expx'ess power » 2-30 the courts of t;ie Uo So cari orJLy have pov/ers which are allowed u/ider the Coristi- tution; the Supreme Court is the only one which derives its existence fran the Const,, the Circuit Courts -deriving both their existence and jurisdiction from Congress, Therefore Congress must first aiake an act a criiue, affix a punisr-znent , and declare VThat court has jurisdiction of it before it can be punished. 7 The Ccyai'ts of the U, S, certainly have no Coi^-riiori Lav/ jurisJ-iction. Th.is does not mean that there is no CooriiOn Law in the Federal Courts but sLaply that no crime can be punished v/hich' is not provided for by the Const, or a statute of Con- gress. COI.u.iOir:/£ALTK V MARSHALL, p. 5. Liotion for an ar.-est of judgement on a convibtion for a miBder.ieanor for disinterring a dead body in 1S31, because, - 1 - the offence charged is St.. ted to have been coiiiiV.itted ujid&r the statute of ISlo v.'hich v/as repealed in 1830 v/ithout any saving claiise. 2 - "Ao -of- fence knovm by the laws of the Conu.iOnwealth is described, • IliILD, thai there cg.n be no conviction 10111633 the act be con- tra I'y to la".7 when couiiuitted, and there can be no judgement un- less the 'lav; in in force both at the time of indictment arid a£ judgement. The statute of 1S15 shut out the Common Lav;, and the act of 1830 repealed re'^ea^led the statute of 1315 virithout any saving, clause; the offence being, coiiiiViitted bet^7ee;l 1315 ad 1330 can therefore be punished neither by the Conimon Law, the statute of 1315, or of 1330. When the Comr.ion Lav; or a stat-- ute creating an offence is repealed, or expiree before judge- ment in a criminal case, judrement cannot be entered against ■ the prisoner, ^Uiless by a saving clause in the statute ex- cepting periding cases; and in such cases if the statute ex- pires after judgement and befoi»e execution the judgement will be reversed or execution stayed. COLQaOIRVEALTH v CKURCrlILL, p. 6. Exceptions to instruc- tions upon an iridictmejit for the sale of liquor v;itho'at a licence: that the court instructed the jury that sees, 2 and' 3 of C, 47 of the revised Statutes are still in force as Lav;, HELD, thai it is a ixiaxim of the Common Lav; that the simple repeal of a repealing lav;, not substituting other provis-ions in place of those repealed, revives the pre-existing lav/'. This maxiiii of the Coaiinon Law v;as in force v;hsn the Const, of the Ga'-'iionv/ealth v;a3 adopted and v;as adopted with the rest of the Common Law, Therefore, the -statute of 134-0, repealing the statute of 1333, did revive sees, 2 and 3 of C, 47 and those sees, were- iri force at the tii.-ie of the offence chai'ged in the indicti.ient , This principle is -one v;hich is necessary or v;e v;ould of- ten be left without lav;. We have the v;hole law to start v;ith; v;e change it; and •.;hen we tal^e away the change v/e have the law as before . 9* CHAPTER FIVE. ' THE CRB.1III'AL ACT. Section 1, Comple-ted Acts. We will not consider the ci'irriinal intent dn this chapter but v;e \tH'l assiinie the intent to be present. The ba- sis of a crime is that it nust injui'e the Public and be agains public policy, and the -Criiuinal Law does not protect the in- dividual but the Public, This is the test or a crime and the essence of it is not that an injury is done to an individual; noi' is a wielded act the essence of' a crinie because by no means all wicked acts are crLviirjal. CROUTHER'S GAS£» p, 95, A constable did not raake hue arjd cry- for a biirg^lary coffiinitted at niglit on notice beinr; given hin^i. Exceptions taken because a hundred could not be charged \7ith a robbery coxriTiiitted at niglit as the citizens were not obliged to give- attendance; so no more ought a constable to do so in the nigiit . HELD, tliat this is not like the case of the HuTidred because it -is the constable's duty, upon notice being given him to pursue. The constable is a public officer elected to do a public duty, and if he does not perform it the Public is injured. There are two points in this case - 1 - that a public officer declining to perform his duty is guilty of a crLTiO, 2 - that where there is a statute, the breach of whicl; is prohibited, such breach is a criine whether the statute expressly says the violation of it shall bo a crime or not. TAYLOR'S CASE, p. SG, Inf onriat ion for utter^ing bias- » phemous expressiong against the Christian Religion. HELD, ■ Christiai^iity is a part of the laws of England and to reproach it is to speak in siibversion of the Law; such blasphemous words are a crime against the lavz-s, the State, and the Goverrr- ment and therefore are punishable. Blasphemy is a Common Law crime and is also punishable in the U. 3. AlTOMYi.iOUS , p. 96, Indictment for defamatory words spo- ken of a- justi'ce of the peace. HELD, as the v/ords were spokai of the J. of P. in the execvition of his office th-e indictment is good, and all actions for siande-ring a J. of P. in his of- fice tmy be turned into inwlictments. In this case the Public is injured if its officers are slandered or in any v;ay dishonored, for in such a case i-t may be said to interefere with the performance of his duties. R£X V \7IJLA':^Ly, p. 97, Iridlctu.ont of e. brev/er for de.- iivex'inr- ic ^allon^ of boer as 13 gallons. The i-Drosecution c 1-1 1 e ride d that ihis v;a3 a/i indictable offence, a public fraud in tl:e course of trado, and ihai thui-- is a di3t inctioo'i be- tween privais fravids and frav.ds iri ';h3 coiirss of tradeo HELD, the- offencs to be indictable .viust be such as affects the Pab-- lic« li'i Stich ii.ipo3i-ion3 or doceit3 "where cor.jiuon pinAdonce may guard aj^ainnt them, the offence i3 riot indictable, b-:it the party is left to his civil remedy; but --ilzeve false xiieasurea, or v/ e i ^'.it 3 , or tokens are uacd, or suc^x netliods taken to cheat as people cannot gviard at;aiJi3t by ordinary care the offe/ice is indictab?.e. Here no false measures, v/eisiits or uoirens v.'ere u.'sed and so this i3 sirapiy a private bread:: of can tract, A statute as early as Zdv.'ai'd 3rd iiiade dealing, v/ith false measures a crL-iie. arid a statute under TIenry Sth made the use of x'alse tokens crirainal; so it- is not necessax'y to rest these ci'ir.ies on Coiiicnon Lav/ alo-ne, REK V DELAVAL, p, 101 » Information for a conspiracy to put a youn-^ cii''l> ^^-^^ apprentice to one of tlie defendants, into the hands of the other defendant for the purposes of prosti- tution, \7ithoiit the knowled£;e or con'5ent of her father o HELD, tlxis is an offence against public decency and ^^ood man- ners arid this court has jurisdict iori over such acts; this is ■ also a conspiracy arid corifedoracy araoricst the defendants T/hich clearly brings the /I'jatter v/ithiri the pale of the lav;* There is a little difficulty here xri shov/in^ a violation of public decericy, IIo doubt this would be an offence in ihe ecclesiastical co^irtSc Fornicatiori was an ecclesiastical crime; but if public it v/ould come in the -Kind's court as a crime a::ainst p'blic decency « lii the U, S. there are no ecclesiastical Courts nor have the Coii'ir.ion La'.: courts succeeded to their jurisdic tiori; tixe ^^.eneral resvtlt i-s tiiat alniost all such criivies are 3tatuto:-y offences in the U. 3» Ari Irif oiT/iat iori is i.;Uch the same as an indictment, except that the Grand Jury does ;iot pass ori it, but it is presented directly to the Court by the attorr^ey General ori his official oatho Iri sorae states the Gx-and Jury is partly or fulli' done away v/ith arid all ci-*iiues are presented, to the Court by ari Information - as for instance, in Cal,, Gorin, etc, REX V ELAI-CE, p. 102, lndict;.iOnt for forcibly break iri£; and enterin£^ close, riot a dv/ellins, house, and urilavrfully and unjustly e-xpellijif;, the prosecutors and keepin^^ t:-.em out of possession, Tl^e defence contended that t^iis is a mere privalte trespass, as the "force" is applied orily to the entry, the expellinr and keepirc out of possess iori beinr, only said to be 10 unlav/i'ul and unjusi; and no breach of thy peace is statedo riiLD, uri iridic':ab-'.e c-Zi^uaj ox\[^.t to appeax' on i;.e face of the ii-idic'^.-.j/it arid no foi'ce Oi* violoiice i/idictable is sho'.m; noi* i3 an •ivnlavfai a3 3ej..b3Ly cha^'^ed, ?..e ni'viu :"uie i3 iL.at an indictable offence o"a'_'.t to ap— T.'cai" on ^i.e face of v e indie ii-.ont « Peaceable po?!3e33ion of per-^ortaJL prope^'i^' only is pi*oiectsid by the Ci-l.iirial La'.To The /i.ei-e iaJiin£, of land is not a crL.ie but a toi't, unle3jpecific intent to do the entire evil thingo In this in- dictable wrinrj of atte:.xpt, the act i.i.,y be either evil or in- different in itself, but there ii-oist exist an intent to d.o aJi act which is criminal; and if the substantive act aimed at 3 when coLipletedj v.'ould rxot coristitute a cringe, there can of course be no indictable attci.ipt in relation to that act; and also if t.e defendaiit does all that he intended to do, he car* of course riot be iridicted for ari atter.:ii5t to do soxnethinr, i;ioi*e, arid if he then has done rio crime he is not p\\nish:^ble at allo- Eeale thus suins up the charactei'ist-ics of an attempt =» Art attempt is necessarily a failure <, 2« The ac: alorie is u/ider discussion here arid it is the act wiiich fails; 30 if deferidant has done all that he has attscip- ted and has not comiidtted a crLae, he is riot indictable; so • also if he has failed in ari attempt -to do a physical act TThidi is not a crime, he is not indictable, 3a Therefore if the meani are riot adapted to the end the de- fendant cariTiOt be piuiished» This is like the caae of Hespublica v Ivlaiin, So in Regina v Collins, the def:. , has not done the physical act he int-ended to do but he has conie near enoaa^: -.o concern the Publico 4. Eveyy accoiiplishuent necessarily includes an attejipt arid there is always some raoment when the atiempt has been made and the act r/o i yet coi^pieted; bat in a coi^ipleted act the attempt is iuei.'i^ed, Aris so there is no pu/iislnnent -ror the attenipt when the act is conipleted in the sauie jui'isdic tion» fl£X V SUTTON, p, 125 Deft, indicted for having in his possession two iron staiiips with the intejit to make coonter- feit jxioney; also for I:avin£, counterfeit money with the intent to pass it, HELD, thougl-^ the bare intention is not punisliable yet vifhe/i joined with acts it i/.ay be so arid ari action -in itself may be punishable with an evil intention joined to it. The act capable of being tried here is the having in possession and in this case a3.1 that is necessary is the act charged and a crirainal intention joined to it. This case is not law today as it is settled that at Com- uiOTl Lav/ tnere iiiust be an act to constitute a crime, and a man is not criiuinaily responsible for what he is or for what he has but for vrtiat he has done; so at Comiiion Law thei-'e carmot be -a criiue except as it consists in doing or having done some act, or course the procuring of these dies v/'ith the intent to use them is a crime, for it is an attempt arui attempting to comi.iit a crixiie is a d'hiie except in petty cases. To consti- tute an attempt i: is as^entiai that there should be an un- lawful coincident intention to do the thing attempted, v/hich iiitention must be logically i/iducible from ti-.e facts o 1 Bishop Crimifiai Lav;, sec.> 204 » It is not criminal to have counterfeit coins ii> possession v/ith the intent to pass them, but to procure such v/ith a criminal intent is a.n offence, ComraonVifealth v horse, 2 i.lass, 133= The possession of barjk bills purporting to be bills of a non-existing bank v;ith an intent to pass them as genuine 1-3 iio'c an offence v/ithin the SLfawU^e« Rex v Feat-i, Russ, arid Ryo, 184 overules Rex v Sut;oji=. R£>: V RODERICK, p„ 127:, Indictment under a statute for a misdemeanor in attmpt ing to carnally Jinov; a child urider the ago of tv/elve years. Deft, objected thali an attempt to commit a statutory misdeuieaiior is /lOt a iuisdemearior , HELD, an at- texapt to comiViit a laisdemearior is a misdemeanor whethe-r the offerice is one at CoiUTiOYi Law oi* is created by statute « An attempt to comiait a crime, whether Couitrion Lav/ or sta- tutory is in itself a criiiie, - usually a misdemeanor, unless- 16 expi-essly aade a felony by statute. y R£3PUBL1CA V MALIN, po 127. Indictnient for \xx^. treaaoji. Deft,, luistakiriL Americar. ti-copa for Di'itiish, went over to thenio The prosecution offei-ed evidence of woi'd<^ the policeman v/as on the rouf at a certain tLue fired a sho'. throuiy. the place of the hole; but' the policeiaan at the tii.ie va 3 on tx.e roof at a different spot« Ki]LD, tliere -jas here an arilav/fa« attempt for tr.e deft's in- tention v/as to isilj.; there was also sufficie/it present ability because t^-.e deft, io-iev/ the officer v/as up-.;n t..e roof a/id with— in ran^e of a bulle ' frOii. his pistols Therefore the left's mistaife of judf^emerit as to the exact location of the officer is iu'na" e riai » '"i:is is an action und^r the criminal code of Calo and an assault is there defined as an attexiipt to cai»iiit a battery; so the prosecution her'B had to shov;- an attempt at baf:ery but Beale thinks an assault is a crii^e in it-self. The question is whether the physical act intended was to put ti.e bullet t!-.rou£,h the hole in t.-.e roof or to put the bullet irito the policecian arid tr.at hh simply shot in thet direction because he thcu,;^r-t tue policeujari was there. In the foi^er case there is no attempt because tx:e deft, has comTjieted what he has attemp- ted; the cour^ however took the latter viev; arid Eeale thinks ti.is is correct. This attempt, hov-ever, must of course be accoi-ipariied by a reasoriable proximity to success » SECTION THRi:£, Effect of Atft of Irijured Party. (a ) Consent , Coriserit to the act cotiplairied of ori the part of the per- son ori xfj::cLi\ the injury is iriflicted v/iil generaU.y prevent; thai act fraii becomin a criiije, but there are cases where the law says that rio eorisent will be valid. These cases are gen- erally eiti-.er for the protection of certain classes supposed to be not capable of caririf for themselves - as a youn^. £irl cariTiot conserit to carnal cori/iectiori - 'Regina v Harairi; or for the prevention of serious bodily harm, the irifliction of v;hich is a public irijur • in itself - V/ri^l-it's case. •zo ' 7/''.lGHT''3 CA^ii", p. r.^.^, A aiOXi had anoti..er cat off his i-.anJ. !'£;LD, t..i? is a c:"iuie fo.- both because i'o is such an ofi'ence against the Pizb^ic that consent is no bar to the in- dicti.ient, R£G1IJA V MAR'^IM, p. 14C , Iridic tiaent foi' an assa'alt upon a cii'l be tv/t^iii teri arid tv/elva yeai-*? ole 'Arit.:. the intent go carnal-ly 'Ario\<' axi abase her. Deft, conterided that if there was consent bhei'e could be rio conviction, p£LD, t> is is one of a class of cases whei-'e t'.e con^erifc is dO har to the coatriissiori of the battery charged, because she t. ix'l is by lav; incapable of (giving her consent. In this case if there y/as a battery, the battery even v/ith consent concerns the Public arid the Public is interested to stop it. This case ;vould apply to all younr, girls ander the age ox" consent, RiGlIIA V BRi\DDf'A'7, p. 146. Indictment for n.anslaychter in a football ^ais^e in wl.ich the deft, JUiiiped into anotl^er player who was kicking the ball arid so injured /lirri that he died the next day. H£LD, th.e deft, was acting within the rules of the gaiae arid he v/as not actuated by any nialicious intent or acting in a n-iaririer v;hich he knew would be likely to cause death or injury. There is no doubt that any act done in games against the rules is do/ie ;vithout consesnt and deft, is liable for any injury so inflicted. So also if a ;^ajae is so dangerous to life and lii^b that it is against the public interest the game it?elf is therefore illegal and any injury done therein is criminal, for no inari can consent to an act which is reasonably likely to cause hir.^ physical injury. COIlViON 'EALTK v COLLBET^G, p. 143. Indictment for assault an battery of tv;o defts, who deliberately retired to a place to have a figjnt arid did so figl~.t, HELD, if the defts. were simply engaged iri a restling match, as that is a legal sport there was no assault and battery; but if they engaged iri a figlit each trying to inflict injury upon the other, they should be corivicted even if there v/as a mutual agreement and no anger on either side. Prize figl-iting arui the like tend to breaches of the peace arid are therefore urilawful; so if orie party licerice ariother to beat him such licence is void because it is against the law, A friendly boxing match would probably be of such a nature that conserit could be given on both sides; but one has no riglit to consent to anythirig which would be likely to 21 cause him bodily ha.^a o;* v/hich v/oald tend to breacnes of the peace and if an injuri' i3 i .flicted in ii.is iiiarxne;..* the consent "A ill be no bar. ^i.C'^101i£ ■^HRiZf; CON. (b) G0;iDO;iA'^10;I = 1;. a c..-l..inal pi'o-:?ec^^iion tLe Public is ihe pai-ty inbei— esood and :iOt ::.e iiidividual on v;..Oi.; ':....e iriju-,-*,, is ird^licted, ar^d i">. .3i'ei*0i''e v.^en all tLe eleiuents of a ci^'Une are pi'esent no act of t::.e individual can efl'ec': tie public i*i;^Lt, There- fore nc fo -rivenes-! by the pa-'t-y injTx^od or r33titution h^r the offendc--.' can uiti£,ato- the offence and rio ac': of the indivi- droal v/ha t e ve r can chajriL,e these relabicris if once the coxaponent parts of a cri;i.e are present, GOi-.-OMWiiALTr' v 3LAT"'f.T/, p. lol, Ir.dic h^.eni f o / rape. Deft, corifiended taat if said v/o^iari ai: any t ii.ie after the act forj^ave the deft,, bhen she ratified the act and he canriot be convicted. r'£LD, the injured pa:-ty cannot condone a crime' by excasin!^ or condoning or f orf^iviii;: the criii^e afterv/arde. The crij^ie of rape has luore to do v/ith the breaking of the peace and usini;, force than 'Jith the v/oiuan's chastity, and so riot even subsequent i:ia:L'riafe v/il^ condone the act. Co..i.ionvvealtii v Kennedy, IGO I.la^s., 312, ' Field, it is a viola- tion of a statute pro^.ibit inc, entry on a vessel v/ithout per- missiori by a person other than a pilot or a public officer, for sucr. a persori to board a vessel v/ithout having, obtained the leave X7 icli the statute requires, withjut regard to the ■ fact ti;at per-Suiissiori i? afterwards £iven to re^^^ain on board. 135 Ind,, 2G7, Urider the statutory crime of seduction with pi'a.iise of marriage it has often been held that subsequent marria£,e prevents the criiiie; but there the crime seems to be not seducing hei', but seducing her and then refusing to marry her , (c) ACQUIESCENCE for DETECTION. Where the party injured siiiiply affords an opportunity for the c:L'iiuinal to operate for the sake of detecting hi:u that doe not in any way remove the guilt; but it must be clear in aH such cases that the individual does not induce the commission of the offence or consent to it, for then it becomes partly his own act, and as he is not injured the public is not in jixred. Thus if a man, Hearing burglary is to be attempted on his house, has his servant open t',:e door for the burglars, there can be no conviction for burglary as there is no break- ing arid entering against the will of the owner; although there may be larceny in that case after the thieves are once in. 22 McDAN'IiTL^S CASE, p. 152c Indictment lor i-obbery^ The priKoneru eonspired aiid ir- order to get a rsv^'-ard clTarod 7?Gr the appreheneioii ^';f robbery^ pif^nried a robij;3ry upoiv or-v^' o.f tiieir"riUri-;D(irv. who vraa ixapli-jatedo Two othsr pa/^t:i'-)i? VK-J-=e in^- • duced to esar-v out the seheiua without being i/:->.for?5?,?>d of the • congpiraoy aiid these last two parties v/ere executed fGr- -rob- bei'-yo " BiSLDj as the robbery v/a'2 upon onfj \vho v/a?? psrf oetly • wilu!J.ri£ tc ^ive up hiy beion£,irif,e a>'id I'iad plartucd '■.'■■ ;■'•'■ so^ the offence doe a not constitute robbery^ In fehi>f ease a« the party ^ipon ^,7l:a:u the iiiippuaod robbery \7af. coiiixuitted had ^^onsented to be robbed an.} had Q'fQn Vai^'ou^ his cionfede rates irsduced the thievets tc rob him %hs t?rln\e of robbery v/as not cou-iaiittedo /ilCTGilMGT'OIT^'S CASillp Po 154 „ The deftSo- i^ade proposals to tl:e i^ervant of a u&n v/hose niaaufaetor y tiisy intviridei feo rob., Eut the servant told hits i.iaater. vho iuetrueted h'Jrci uo jc.o on witr: the t^onapiraoyo The «ervan;- let the deftbo 'i'... bu.t an their way out with their booty they were 3aptui-°gdo UMiDs there v/ae no bur£,,lary hej^e for the entering v&s done ^vith the intent cf the ;L!5agter:, but there wa'^- a lar^any for ihere ^!,'a3 no absent of the inaster that the thiaveii ^should, tsxkt- hi© pro- perty a\;ay^ &nd hlis obje-i^t being, to defeat theni hs ra^y^i^xii gave then-i a ^.reater facility to cujiiiiiit the lar^seny than, thsy is'OuU. - other'.Tlse hfix^ iiado Slinilar cases to this are t:.oee of putting deso; l&tt^rs into the toail to detect fl-«ail robbers and tr.i'S is held to prs" vent a sfinvlctrlori for robbery bu': not for lar-ijertyo RiK V MARTXNj, po 15C „ IndistrAent for a uU8d3a--eanor in a8gi^tin£, a prisonei' to escajjCo Deft, entered th^e env;losu.re a-i'id succeeded in £,e!iiins^ the prisoner outs, but ■'sas then ap--- iprehexs.ded.1 it way a pretended escape arrang,ed by cicnaeno of the autr.orliieg and the prisoner j, for the purpose of ilet-ewting the deft J H.SIiD,. as the prisoner nevsc esi^aped nor j.rct^rvded to escape but was gitnply acting with the corisent of the author- ities^ de f t „ earjTi o t be c onv i e t ed » The trouble \7ith isas^s of thia Tiature is that the ess-sn'-' ■ tial eleruen- 3 to u^ake up the eriuie canriot be found aK the laek of consent Is a part of the erij^.e; t.ierefcre there Tj/ae rio possible escape iii Rex v Martin and 3g iio chance of asfsistan^ to an essape-: (d) COM'RiBUTOHY GHXJ4£o Rj3X V 3THATT0IK p« 157, Indiotinent for a coio.iipAr^^y to deprive one of an office of secretary in a eerta.vn .Hy-ststY e-M 23 to prosecute him witnout any roasoncib.le or probab3.3 cau-co for oLtaining money under false prstensea.- ¥IEIhcut jusolficiation ii-d:iiet'ed the 'ifOvU'Adj ""j.lch •.'.';-,rN the; ultio;,-:.te cause of the death j deft, is ■ r.n11,ty;. It. •tt(als.e.s| no d.l£i.''er>ari©a rrhether ths- wound cau-se^i "the. ^ death on accoai;t. of the la<::k oi. proper treatment or -/ioto The death hero^ ■•ji-&t' the rets-alt of both tht; woui'id sjad the failure to anvputateo And deft „ wafc; reapongible for the ^^-^e - the wound; but where several e-auses result in death any one • cause c;an be he'id respcnsiblo and it is simply a question of fact whether the a^st of the defto vjas a ecivtributing, eause and an operutiiig for^e at the t.ims of the death c R£GINA V DAT.LO?rAY, po lO'o., Indictment for xrianslaughter^ By reason of ne&ligence ai driver of a cart o Deft,, wag titans- ding up in a cai^t he v;as driving, y the reiJniS net being in his handii g" when a little child ran asroBti the road arxl firas irnosked down a:M killed; the deft, did not see the child before acci- dent o HilLDj, if one,, by neglect of ordinary oare causee the death of another,., it ib manvilaughtsr; tio if the defto sould, by ufiirjf^ t>ie i-eine,. have :,aved the child;; he in guilty j' if he could not he .Is not guilty „ Verdict, not guilty c. Hers the death happens entirely on. ac^count of the negli- gence- of the vieejsased and it vfould not have irade any differ=- ence v;he the r dc-ft ^ had been u-iinr, ordina^-y care or not; there- fore the deff^;?;-, nef.ligence is not in ariy "way a .^ause of the • death 3:ad so hi? is not ^.^^iltyo This yase shows very well the proper ',T?iy ^o treat thsse kind of ftaseSo ■ RiCrlllA V KM. p= ICoo iTLdictment for manslau.rhtero The deft 3 vms beinp, baken to tlie gtaiion in a vehicle belonging to X by the other defto. t:.e servant of X. vrtio had been d5,r« ected to do 3o by Xc The serva.nt Y^ras; dri'vinr at a furiouE ■ rate and ran over a child roi?i,r to achoolo FilLDj contributory negligence is no answer to a ariridriaX action; arid if the pri- gonere were oiriving a'" a daiigerouj pace in a euJ.pably negligefa mariTier they are guilty, > 'T'he deft'-"^., act is here oi:e of the contributing causes of the death of tiie ulaild and therefore it jp^a-ka--? no difference in a crirainal action v/hether the ahiid also contr j.birted to its death or rioto SllI'.iIvLA.;^Yc The simple question in these cases of contri- butoi'y negligence is v^rhether deft'-g, ast has contributed to the result., and if the aot of the defto is one of the active causes of tiie resuS.tj, it iria.kea no -difference in his cr'ime whether arry one else has contributed or not o The question is simply one of causation ani if the deft>. v;as the cause of one oi' the operating causes in the result, he ie guilty; and contributory negligence on the part of the one injux'ed h-as no effect in traking av/ay the lu-iminality of tlie deft's,, aeto The rule is- tnue seen to be entirely di.fferent from that in Civil Aotiongj 26 SECTION ?OUPl, ?i£C[ V RXOI-iAaDSONs po loGu inJ.1 c-.t:.,ari.t for "-.ir'-.v/a:, x^ob- bery. The 2 def1;^<-, confront ad one X~ •..'lio -/aa v;ai:;j'.n': alonf; the 3ire8t arid asked 1:L.. how i^.u??;-. laoney ..e had; one of the deftSo then turned to ;..o av.'a: with no 5.ntent to robr, but the other took all X 1-ado 'I'-.e proseeut-ion could not aisyeriairj; vrhici. had coiaiiit,-, ed the robbery and 3o both \7ere acqu5. :tedo Thit ta^e is aixiple and clearo One of th3 p£jrt3.0 3 is iniioccnt arjd, t>.,e £.-0.11 iy one e.culd nO'':. of;; dj.5 1-. j.ag,uish*;d; 30 both necegBarily 1-^d to be acquitted^ IRLaillA V S""X:iDALLy Po IGVc Xndiyt;-.ent iror luan slaughter. The 2 deftSos vhile drlvi.nr, in separate oarts eneoura^ins, eadi other tc di'- ive at a dan£.erous paee^ I'aj-i over and killed Xo FBLD, it is ii.j..ateriaX v;l\r-) -=•,;. er one or both rsj'i o'f^v X for both are gui^.-Dy s.i principal;?:, .u^ere oriO party by n6:^lir,snce has contri.but.3d to the loi.;-:- of .life he is responsible ^ and if both the part ley here are squaXly ne£;li£,ej'it and contributing both are guiltyo The acts done here 13 participated Jn by boih the par- ties and 30 bo bh are £,ulltyo R£GINA V FAULTS J p^ 170 -, Indi.jtiuent for aienplauc^^iter. It vfas deft-s duty to provide for the ventilation of a uine, vhich i.e nerleoted to dj ai^.d !;he explosion in qu,estion took place » It was a3.so ^\.o\mi i^/.at it v/a s tiie duty of a person under the deft^ co report the need of ventilationo KilLDp if by ojiiuii"^ tln^i, to see to tiie ventilation deft^ ./a's guilty waa of a want of or>linsry precaution,, it i?. no defence that othe578 were also negligent arsi conti-ibateo", to tiie re«uJ li-E. RjIGlIIA V DAVIS 5 p. ?,71, JhidictiTxent for .car ..slaughter. The 2 prisoner? wen'; "--r a :;aop and asked X^ th^e deceased^ for an apple o X-'i^ wife refused a/id .g.bu^iva wci'ds foilov/sd and abusive v/Ox'd:^ follov.'ed and later a general figl::t« X was knocked down and \.Xy. ,]"^..w bro.kenc. ..'it r.i;e hospital it waa fo\i/id necesaary to v/ire hi's .1a^.^' ^.riX he died urider the irifluenc of the ehloi'ofora.o rlilLD,-, if tho death resuTited from the use of clalorof om^ it sarjtot affest the crl':iinal responsibility of the prifo-vier,, B-rt ac it cou.ld not be found, cjut which one of the deftg,-, inflj.cted .t}*e bio".-'-, they were both acquitted. To constitute a ci'Lao L^ei'e laust be a ci'Luinal act, and that act iiius'; be done in a certain state o£ i.iinJ., v/.ic.i v/e call the C.'ii.iiiial Intent o In C^-i;.anal Lav; a uian , intends to do v/l.at l.e vai-.iri&ai'il,' arid kno'./in^l .' does and i .is is what is called Criuiirial Iritent iri Ci'iiainal Lav;; it ^aj^es no differ- ence ./hai the i..otive is iT /.e iribend^ to do t. e act 5 anl 30 Criminal Intent si'-ply ir.eam t'-e intentional doinr; of an ac^. which is c^-iiaiualy and it is not necessary that the guilty one should even know ihat ...is s.ct is a c^'iuanal one ^ Sj-iC^lOII Olii;^ Intent distinr^-.ished froia lotiveo ?.£;:■: V ^HEPPA'-Bp p<, 17'i„ lndict..ient for fot's^inr, a receipt v/ith inten': to def--aad the ban]? of England, and also to defraud X, X £,ave liioney to hia bro^i.er to buy ^toCii v/ith, who gave it to the prisoiier fOx' the aaiae purpose; and the prisonei- gave the forred receipt in retai-n, but .vith no in- tent to defraud X; there was no 3uch person as the na.;ie for— gedo H£LD, the aci co-'.2.d not operate as a fi-aud on the bartk of £/irland, but as the ii:,i:iediate effect of the act -vag the defraudinr of X the pi-isoncr i,.ust be convicted if ;.e caru-iot repay the ix.onevj T.-.e defGo interidc-d to ^let ...orisy ori the fory.ed receipt althouj;-: he divi riot intend to harxi, the specific individual - X. This is what orinanal intent uietia.? in Lav/, that a man in- tends to do v/hat he volurxtarily doe'i, wiiatever his laotive niay have been* REGIIJA V SHARPE; p, 175 » Deft, under a pretense of wis.;inr, to bury his fatbe^* oboaiiied the key to a b.iriel grourjd and ru.^.oved the body of yi-; :::.other., wishing, in fact to take it to an.;t..er pZacs arid our^ it v/ith his father, HELD, al- thoa£ the i.iOtive v/e 3 £,ood the act .vas done v/rongfuily arid under faisi; p^'etenses ;. and rio relationship can justify the takiri- of a coi^pse f.'oni a ^j-ave „ A licerice to do one i -iri^ does riot preverit a person from beint a trespasser if he does another, and the £.ood x^iotive- does fiot preveri:, ari act dorj.e vn'ori^fuliy froiu being, a crime. RESPUELICA V GALD'7i;LL, p. 177. Indictment for a nui- sance in erecting, a v/hc-f on public p^-opoi'tyo Deft-, offered t to p^'ove that the sai^.e 'ffsi beneficial, to the publico K£LD, such evidence ii inaduissabXe ,. bec;au-5i if true iz would be no juatif ication^ STATE V PRESNiiLL, p. 17V , Iridlc;tii:3rrt Tor 3911^:.^ !?pir- ituous liquors to a elave c:orii?r-aj:'y to lav;o Deft, bslir.vod that the slave wa= buyi.ne liquor for h;i3 u.a:3t&rc H£LL„ tj-.e dtfto acted ab hie peril in dealing, v;lth tne 9Xave and^ ai- thoup;!-: liig xuotive u.b.y efl*ewt the pi:.nishii.eyit ., it car^not; p.^e^ent tl.e act froiu bei'-'.c a ^>-io.latio2:. ox tj-.a Law ^ V/:-.en the a.tt2; .tone in unlawful and vc?,urY <, The ' que-^tion v;as - v/hethsr tho'^e -/ho nake policai-Dy a part of their rt3li,Fion are excepted froii th.e cpcratiori of the laWo HilLD, ^w&r-j uari ie pre-i^ut.ieJ t-j ird:or..d the yi8ceg*£:ary and le- £,itixna:e corxBequences of v/hat he l?riO^«;ijri,riy dooe, orj-d ig/ior- ance of the law vi.ll r-ot- be takei.i. as evident.je fcjr a iac-./: of crifiiinal intent ^ Stf^te V 7rt\ite, G4 N. Ho, -^Go Tue beating of a Jru;::^ for a religious purpoise it' r.'.o defence for a cri'-ae whe je it i.:? a-" gainst the lav to «o beat a ^Iruia^ Uo So V HATtI.iON; p. dSOo ij/di^nniont for depo^itinc i^i the Po Oo an obSRenee publications Defto was actuated solely by the desire to iri;prc>re se>aial habits and t.aus to benefit the hujiian raueo K£l.Dj thi'-: i'S no excsuse; the lavf -inaX int; body and not the individual priv;cribe3 vihat is rif;-.; and prohibits wj^at is wrong,; any other theory ■st.riX-es at th^e foundations of any government by law,-, SUl.H.iARY, Intent' X'i the voluntary briu£,in^ about of oorx- ■sequences in whir.h there iva.y be no vrin^h or de3ire farther than the voii-ntary oojnc of t-;,e a^'it c But one iru-sj'.\ds to do I'-'hat he voluritarily doeBj, arui i.ntent has nothing to do Virifch ooJiSe--- quence?; or with the >:nov;led^-e that the ast is \7rongi thus • the motive of the act ie entirely imo'iaterial , SPECIFIC iNTflHTo DOEE'S CAof.,, po 151o Indictroent for burglar-y with a felonious int.ent to kill «.iAd destroy n horgao The iior&e was have r-oas. a race and the priijoner ^.iut the «inerf=i of hi^ fore- leg to prevent hi.y running,,, in conyequenee of ■vhi'Sh hc> died© HULD, deft a xiiu-it be a?; quit ted on this charg.e if hie intention on breaking in vn's not to ]. .for ^onteriri^, the Ktabla v;itb. intent to kiU. the horse; but- he d.l'J. riC.-;'. sntar ---Tith th.it interih but with another intent,. a>id all must go togather as; the intent, here is part of the aat tc raJ^e up the crime; for the cr-jjois of burglary implies a Bpecifi'S in'tent Ivke Boina other- irrirtiaaj, tiod a general intent iu not enougho Deft a j howe'-rerj, hai the gen- eral intent to l>ill the hore^:; at the ti»ne h.s im'lieited ths wound for he voluntarily ga-ve an injury from whi/s]:;. the hcrac died; so he was aftervTai^d ino.ieted for .killing the horse ar^d convictedo ^iTiiere c. ttpecific intent is 'Lopliedj. it in pax't oS* the act and nuist be specifically pro' Deft, could here be convicied of the crime of maimingj, for the general intent v/ouM be irif erred- fraai that act » bxit he did not have the gpecJfic intent tc ki3J. o R£X V KELLY, po 182o Indictment for maliciougly '.V:illirjs.g a horse o Deftc fired st X but killed hisi horse insteado HELD, under the statiite this offence must be proven to have been done maliciously and nvilice jjnpliee inte.rition; the proof therefore negatives any intent iori of .killing the hoi'-se,-, Killing a horse was not a lirirne but rtvaiiiiioutly 3rilling a horse was; eo the specif i-c- iyitent had tc- hp. prove?x in this case and it v/as not preaer-.t -. COmiOfJlVEALTH V H£RSii;v'^ Po 18-3,, Motion i::.. arrest of judgement for on'iiiitting to av^-er that defto* irx giving poison to the deceaiiedy did it with ^x.-. intent to .killlo H.flLD-, if a particular intention is neoeHKary to an offence ^ or a sriminal act is attempted but not acooa:iplishe-d. aarj.d only the evi-l intent cari be p-jcriishedg the iritent mxx'&t be alleged, and proven^ Bvit if the offence congists in the doin^g of a crijnirial autp the law implies the intent from th^^ acst , 30 ) \^ Genei*aJ, eriaiiixal intent Is the mere volujrita.i*y doing- or six act wViic-ii ip criminal ar^d thie case shows that general intend need not ber statb'd in fib's indActme-at or provezij vrhile spe-ctfic inteiit must be expressly a-llegc-d and praven as part c:f th« indictaient; so in an irtdictoienfe for murder g which, requires ma- id oe 3.£orethougb.t 5 it l^i not sufficient- to -say that. A kJXled « Bo -B\it in eveiY indictment at Comnon La^A^ there nust be an -al- legation that the acii. '•sa^ -dons u.nlavrf;'u.'',ly ^ cnd-we maj look to> this to in«53jade iihe intents The prosecution ne-ed not bring in ai:iy special ev-idene-e to pro'^-K this generals' intent ^ unless it is disputed by evia&BCo brought in "oy deft'^ SlillMARYo Specific intent is a pHX'txcAxXa.r state of ro.ind in which the fact is dj^ney br-nc. it is' part of- bh<2- eriraina}. attit an.d uct rfJ tbe e;e».e-Fal -Asntai stote-.; Xt is iieKfj-ex* p-Tfesumed;, but alwa^ys al.3>e^;:ed'-in. th«? indi.cf*ment. <,. which i-n not requ.ix»ed for general intent ^ A- geod .i:ilLT-stration of tl-^ difference- is seen -in-Dobb'-'s Sase^ po 131., - SECTION 'iTIRKB. NBGLIGENCSa It moy eithei* be sa»id that negli.gen^'-e m3.y take tlm piace^^ of goner^-al cpiininal intent or that it is one of the el^aments- of it,- One of' three things is nee-ssiiarj for a criiBa -besides the act; first, that tJae act be intent ionaXly done ; -or -second, do-;aa negligently.:; or thirdly, done neither intent ionaXly-nor - negligently^ bi^t ds the result of one of the acts ^-7hidi a jsai}^ does a-fc hisperiro - V (a) Negligent acts of Cowraission., ThsiTt; avut^t be a dist i,Gi3tiQn rc^^'s^le b-itweon negXigent acts of ccinxxiis-^lon and- negJ.igerAt acts of orffv.ission; as if A negli- gently th,.ri7VYs a stone vrhich iiits B, there is a positive act en A^s part;^ while if A f^ontracted -v/ith B to provem. a stone hit- ting and -it -does hit C throvugh A's ne-glXgeRfje s, it is hi-s om^ mlsBi.ort \yhii.5h riO/.-ne,':; ts bjjr. with th.e act/ - ... ' rd^C^INA V CHAMB.fr.?J,,.r\.rN, Pc 187,, Ind..iotraent for man^sisvugfe- terc Derto was a quack do-ctcr am gave X an -ars-enicai cint- > m©nt i.'o-use, Ai^hinh fiatxsed her dea-th by being absorbed into the syp+.eodo Deftc merely -cold/ her to rub '..n -iixe ointment „ ajid shs us«d so mueJx that ahe died^. -HELD, if deft „ -adrainis-ifcfr^ed t-h® - ^li^senic \7ithout . J^nomng er-taJring paui.s-to tin^. out 'icb^t its e.tfcict \vould be J or IrKO'arijr^.g this » he gave it to his patient 'ivitiiout &.d.ftqua,t.e direct j.ans as to its iTsej ther-e -s^ouad be •^ m Civally a cei'tain ai.'tificial stajruiard can be sti up foi- a man's to corifocLi to bub cri^irially it depends on eacn raan's ov/n i.,irid. So tl,e rule is il^at one is only criminally liable if he does sodretiiinf; v/hich 'r.e hii::iself ou^^ht to have knowri bet>- te:^' than to do. In ne£,li£,ent dauiar^e a man is not punisiied for the neg,li£,ence but for the damage he does, and if his ne£,li^^en ce does no dainat^e he canriot be piiriished. It is a question of fact for the jury as io ivhat is criaiinal na£,li£,ence in eacn case, and so an ignorant uan would £,et off easier tnan -ari in- telligent one. '^he crucial tes"; is to find out if d-oft. has • has reason to knou that wl^t he si doin^^ is careless, Ril'.ll^IA V SALitON, p. 1C9. Iridlctraent for laanslau^^hter. The tl.r'ee defis. v/ent into a field for rifle practice, arui, v.'i.ile firing at the target, ojie of the shots v/ent across into a nei{^..borin:: orchard and killed a boy. f-ULD, all three are £,uilty; because if one does a thin^;^ dan£,erous in itself and without talking, proper precautions it is a crL.iinal act if in- jury is done; and also, as all ai.*e enj^a^^ed in a coLsmon pui'-s-iit each is answerable for the others. All three are £,uiity here because all are eni,. £ed in a cOiijaion enteiT^rise, In tl::is case it is not necessary to sliow any duty to the boy because it is a ri£;xt of the boy by lav/ not to be shot; this shov/s the difference betv/een neGli£,<^nt acts of co-j..iBS ion and oinuiss ion. If there is a prize fight arid one of the contestants is killed, it has been held that every one of the -spectators is c'^ilty of homocide, as it is a coiji.ion enterprise, SUIlIA?.y. Net,lii,si'ice is not a criairial act in itself but it is the intent part of a crime, and is the manner in which the act is done. In every case tr.ere must be shown - first, an injury caused by deft,; second, such a decree of neg^ligence that' deft, is responsible. The criminal lav/ deals with the ' defto only and hence it must be shown - third, ti-^t the deft, himself oujj.t to have Knov/n his act v/as ne ^1 i goi t , and he is not to measured by tl^e standard of an ordiriarily prudent man aa in torts. (b } Ne^li{^ent acts of Oiii^iission, liilX V F'^JEND, p, 190. Indictment for a misdemearior, for ne£;iectinr to provide X, an apprentice foi;rteen years old, ' with t::.e necessaries of life, so that her health v/as injured, K£LD, t .e refusing to provide the necessaries of life to any ira'an: of tender years lUiable to take care of itself, whom 32 a man is obliged, by du'^y or coi''.t-'ac;r. tc provide for,, v.o as to injm'e ita bealM;; .^ i:s a^A i».di stable offence- Ij- cra-ijov; 0*' '■■^.in ^ M't •■ :i.c*tj ■ ■ •!-" i^nBioTi •■ a outy to ths daysEi^sd nvu^i bo Bbcv/ri: •/h.i^efor-e in thlf: case it b^d to be proven fchat. the deft,,, va-s ■■rridar ;:. duty to •si-]jr/ly lood and i that ths deati": v/h'j dii'ectly caiJ^serJ by ::.±n ri-^rlect „ Tliorefore if the '-jhill had arjy othei v/ay of ge-fctinj;, fooO... tho d^.-ath would y>.^jh -;- -/-G ]>e.^7j caused by def^';., ne^Lei;-". arid he v/o^ild not ha<'-e uPi^ri guilty c T>-.e di ty lau' • -ba -stated .'.n *hp irjo'.i -of merit ar.;"? prov';]'.. i.n a':^a";;;- of t'l.'s f:iI;d^ T^JiCrlilA %'■ LOWP. , po 192- .r.jjdlvtroerit for r;:ari^lattt~^at.3ro Deft wa-. . ■; " r. 'ed to i^var^age ari ani-iri^, e>ira^ea irt dvaw:??!?, up CiinHr,:! frc,.: a ;. oal pit^ He y:erit av^ay ieavirif;, ^he cnglrie in C5l:a"r.a c"'^ » 'l^'-'y '"^horri he .^new wan i£;riorant of it*: opex-j.t ion., arj.. o.n ooviSieq^erice a tiiiner wa^: killed by an acc-idp-nt vhich ' dftft, o';.-.Xd hava prs-rented if he had. beer... i.herf:., H.SJ/D,, defto i'K guilty hecuuse -f-he death o^'^iurrev'. on accou.nt of d.-'re;^., ns- gi.nct of d-tyc TlUi incouipetont poTscn doac! the killxjig but deft,, iu respohi^ible for such a per'tjcri ;,at'iri£-. at the .ciachinery -.and it is rei',];~! e ?.Hly n'?r;lirent fcx' deft., to put him in nhar^;.'-.; Ri](-INA V SMITH; p. 192c IndicLnient for jDanslauH:itero Def '■ , v:3.c erAolcyed by the o^mer of a trarnv/ay vdiich crossed a high, ay to ^i ye -.rarnin^, whon any ■.r.-.ck croayod tye roadj, hxi':. there- Mte.^. r...c duty h/'/fyr-SH -■ rra t,l..-e e-iV'ner to keep a v/.atchTian the:'.! , y v-as h.j.lled v/h\' . " . 'h , ';at; a.way fi-oi.i hi'S pcsi ^ HilLD, th?:ra -^3azi no dxifcy o/i the tra-^r-vay ottnar tc; jjaep a i^rrt + oh- man, arid §o nhe deft":;, r.e /'." •■^:'-.;: : ■■ ^.ot such a breach of duty as to make hiirn 'g^'ii^.t: . if tho ;^a"ie;:.i." , . ". '30 tr.'.ova lon^ Bnc^Uirh to let the Public eiKp-^rst prc^.. ^i. ..oij. . Beale thi.ik^^ iief t c ehoula iiave been liable, but if thi^ vd.;? orjly the first day th«re vrouJLd be no Arar.y beriause j ■;:s not iiuiiiced. the Pablir: to tnjiat hii;. i-mXess he ■^;■?va■rtiRe>; xz : ??or then the direr-t eau?e ■'/I'oiild ha/ve oeen t]ia .^.(;('n-;aijed^ i; negligence. But ay "che case stands beale does not think ?.':■ difiers froxr. the preneedint; caee ay>.d that the pa-Cions hlTlad were ^.n both oapeK vvero uiider the oa:-e of and had a rifht to dapend on the def^, -. Y.'e muat dist inr;xiish this sriuiinal /i ability from ci-v-il liability and jn both caseg the breach of a private ;;ori.tract haB resulted ir. a dLoath a;.i.d the pub i. i. r; e o*upla, ine d .. 4 ■ RiiaXNA. V NIOHC'bLSp r . 19?. Indi.^ttasn;; for j5iaj-s:iau£hter, Do^x'to on -Dhe death of ht^ r daughter tool charge of her i>:fajat 33 cliildi, which Eho left during the tioat of every day in charge of a boy of nine years . vhile she way away from home at woi-k and the infant died of starvation, I!£LD, if one has chosen to talic charj;,e of a helpless per-eon and let the same die throur^i wicked nef^li^ence .j, he 13 guilty of manslaugliter. But the riQ£,llfierice muet be ^uch, as to show a v/icked n.ind in the sorxse of recklessness, and to decide this the state and 'condi- tion of the parsons concerried must be taken into account. Verdict, not guilty. This is not the old question of degrees of negligence, but it is not necefjsary that because a duty if neglected, one is criraina3.1y liable; there must be a crimiriai 'State of mirxd, a reckless neglect aj'id not mere thouglitlessnese o R£GI!-IA V DO\''n'I.ES ,, po 195. Di ceased was the two year old child of defto and vrtien it became sick it was not -given any medical treatment, contrary to a statute , but deft, treated it in good faith acc-ording to tl:e doctrines of a peculiar sect to which he belongedo ITELD^ there xrsM a statute making it an offence for a parent wilfully to neglect to provide medical aid to his children.- Thei^e was th/us 8lii absolute and positive drty and it makes no differiice about the def t '-s conscierieiouB opinions or whether the motive was good or bad» At Comu.on Lav/' a bina fide belief that this was the best means for the child's health would preclude the idea of crim- iiial negligence o But the statute imposes an absolute duty ard. he neglects it ?t j^is peril; he is not liable bee^ause he in- tends to injure the childj, or because of criminal negligence, but becavise he does not perfoiTa an absolute duty laid down by statute RilGINA V INoTAN^ p^ 19S , Indictment for manslaugliter, Defto 3.ived with and was s"->.pported by the deceased, who be- came illj arid from neglect nf deft, her death was mucl-; accel- trated.j HELDj as defto lived with deceased and as she was -the only soUx^oe through which food and medical assistance co^'oid be obtained, there vas a coirraon law duty- imposed upon her, and not having performed it she is guilty „ In saseB of this kind it is a question of fact whe-ther a lega.l obligation has not beer> tacitly assumed by defto Arxd no doubt here it hae ^ There must be a legal duty however; as for instarice a p-3s;:6i" by or.> the -r.treet would not be obliged to provide assistance for a ma.n he saw dying from want of food on a do-or stepo Ho Cv P=j 425 - A later caae ^ agreeirig -with Regina v Instan,, 34 SuiiTiiiary , In these cases there must be shown:- first that there was a duty which the defto ov/s t-o the plf, either by a contractual relation or public ri£;l-.to Secorrd. that deftc omraitted to do his duty and an injury resulted,, Third that there was ne^li^ence of a wanton ji: .vicked kindr. The negli- gence by Gori-unon Lav/ must be gross or v/iiiked^ but hy statute ' an abaoliite degree of care laay be required - Kegina v Dov/neso The duty nay be one by Cor.'iiion Lav/, or by implication arir.'.'.ng froiu the parti cellar circurr,3tances of the case - Rei^ina v Instan» SECTION POUR, COIISTRUGTiVi: IMT£nT. ( a ) 3e ne i-al 1 nt e i-it » ANONo, po 201, A struck at 2 with some keys, v.'hieh by the force of the blov/ flev; out of his hand and put out the eye of C > HELD, this -is mayhem because there vas at the be- ginriing an evil inten":. This is different from the general intent to do v/hat '.7aB done, but deftc intended to do a criminal act and did do one; so h" ? 3 p^Jinished as the intent to comiait -one crime can be carried over for the comjaission of another,, Of course the-re was no specific intent here and none is required for mahem, RxIX V ELAOa^AM, p, 202. Deft, assaulted a woman with intent to corrciit rape and sl;e v/ithout dei.iand offered hiin money which he took. HELD, it is robbery for th-e money was goven up involuTitarily and by taking it the defto took advantage of his felonious conduct. Robbery differs froi.i larceny in requiririg the uvie of force which was present, althougli he did not at first use it for the purpose of robbe.-y. The intent is also present be- cause he did interxd to do a Ci'iir»inal a-ct and the money v/as ob- tained against the will of the woman., A simpler case is where a man comi:ats an assault merely for the purpose of an assault but in the couree of it, for the purpose of getting money, r t RjBGIIIA V BRUCE, p, 202, Indictment for manslaugiitero Deft, was dinink and in a playful v/restling iaatch reeled agairis a woman and killed here HELD, the wrestling was done with the consent of both parties eiigaged in it, and so there was no as- sault and no illegality; therefore it is in the eye of the law an accident, 35 If par^ioB wiei- to Iridiilj-e in eoarse play it is no crime if both consent p bnt i.t I'i a point of fact in each case where sport leaves off and (griruO be^^inso The deeieion practically i3 that if no aswault ia cocnoiittedp one ig not chargeable for an accidsrit arlej^rst froin yprrt . as th'=;vk.'i As no erlrainal intent to be carried avero REGINA V PHANKIkCN, po 2jj3o - Indictment for mantjlVau^h-f-.f^r, T>eft., picked up a large box from a refregh^aent- stolCi. on the pORr anc wantonly threw it iri the Sea^ whsre in Btru.sl^ X v/ho wats e",7iniT.in£; and killed him* KiHtDj the case reeted upon the ri-ound of negligence or\ the * part of the deft, and the oue->?t-.on nm^t be left to the jurye Vei-dictj £i\iltyo This case vras not decided on t-he /-rourui of intent but on the pvound of n3sH£fi"ice„ for the taking of the box wao simply a tort and ci-iminal intent eannot be carried over frKJci an in- tent to carrrtiit a mere civil wrong, c Even if the deft « had Bto- lejA the box 5.t ^jou^aI not have eupplied the intent here unless ■ he threv it cverbogrd while In the direct ayt of com'iiittine a larceny or eec^aping from ?t; but if the 'theft was completely cocLTvittfjd the two could not be e.onnevstedc 00?,0.!OI^;?MLTH V ADAMS, po 204, Assault arxd battery o Deft Tshile driving at a rate piThibitO'i by a city ordinance knocked dovm A on the etreeto 'i'h.. court ruled that the intent to violate the ordinance ftu^.pllsd the int-ent neeeusary to sus- tain the f;har[,e of assault and ba^, bery.j Hi^LD, the ruling is wronga If the act dcna ic msi-ely naluai prohibitum, there is no pvUiishment for an i2>jury arislr-g froia it cor.initted by a miefortvine or a misi-al-e. The fa'?t driving vras uai? a i;ri...e regardless of intent, and the caue :'s aot puL- on the ground of negligence and so we must aeevime def t u v/as not driving at a negligently fasi rate* The intent to be carried over rr-uvjt be iutih 33 the law regards as purdijhable; but crns r. :otutory ercinieSi like this one j' may be committed although a m^.r/.-'s ni:i:rid iw per'feetly iniiocento Tld case does not lay down a Ixard rule that constructive intent eam^ot be found fran an intent to break a statute , but it only mean-, that if the acXe evil in the act in because it 13 agains a statute 3 it tjIIx not supply the intent; but if the act pro- hibited is itself evil and if there is actual intent or neglir* genie apart frora the statute it will give cjanetructive intent* A broad distinction cannot be 3aid dovrn, but most of this kind, of offences are violations c.f nuriicipal ordinances Trher-e the offence ie i.iade a crime v^ithout the nece-ssity of a crjjuinal intent nece-s^ary to a ccixxaon law crime; and so it carmot b«. carried overo 36 t-- - COi.ILIOIIWilALT;: v !.. I.'!!:, p. 20 'Z . l/iu.ic':..ien": for murder'. Deft, atte.vipted. to shoot herself, when X "^eizeJ.- her, and in the struj^rie vvliich ensued v;as accidentally shot, HELD, - suicide ia an unlawful act and so deft, had a ri;:ht to inter- fere; and ariv person j who iii doin^;, an act which is crirainal, ■ kills another thouf^i accidentally, is giAilty of criminal hoao- cide and at least of uanslauLi.ter. Suicide is a crime thour^-. from the circvunstances of the case it cardiot be punished. Therefore it supplies an intent to b'j co.rriod over and the case is clear» S UI^jUvIARY u A crL/iinal act combined v/ith a crimirial state of mind completes a cx-iiiie, althourh the intent of deft, \7as directed to that particular act; but the act oririnally inten- ded must be a crime. So if inji;r:.' results by accident from a sport not ilie.^al there can be no constructive intent - Re- £ina V Erucso Arid vfhere there is an intent t-o a mere civil ".vronr the case is 3ii-iiS.ar - Rer.ina v FrarJclin, Also the act Uiust be malLim in se and not merely malum prohibitui.i - Regiria V Adams . (b) COnSTnUGTIVi. 3Pi;CIPi: IIITJLIIT. Supplying specific i/iterit is a much narrower field than Bupplyinr, general criminal intent. General criminal intent can be supplied from any other criminal intent, but specific intent can -oiily be implied from an intent to do a precisely similar act , HALuG .. P^C.- 569, Arson must be a wilfull arid malicious burning So if A shoot at the cattle of 'B and the fire there- of sets a house on fire this is not arson. But if A intend to burri the house of E> arid in setting, fire to it burri the house of C. althou£/; E's es-aapes by some accident , and A did not int4nd to burri the house of C, in lav/ at is arson and the malicious and wilfuli burnirig of C ' s house. In neither oJ the above cases does the actual specific intent to burn C's house exist, but in the latter it can be supplied arid carried over; that is specific intent cari be carried over only whe-n there is originally an intent to do a precisely similar act, GORE'S GASiH, p. 209, A put poisori in medecine which X had had a p^ysiciajri prescribeo . . Later X arid Y ate of it and became ill; and the apothe^cary to show that the pre scrip— 37 /.-- IC 9 '.- tion had. been careful3.y filled aie of it also and died fi-'oca the poison. Hi^LD, A vira?5 guilty of rnudder because the -law con- joins the raurderous intent with the event which ensuedo \Vl-i.en one prepares with felonious intent to kill one man and ariother is killed, he is guilty of the murder of the sec- ond, for he is as great an offend-er as if his intent against ■ the first person had taken effect, RLGIITA V PiI.:3LlT0n, p. 210. Indictruent for maliciously "^ doing dainage to c window contaary to statute. Deft, having been engaged in a straet figl'.t went across the street and threw a stone at his adversaries, but it stinick the v/indo"w irr- stead, HULD, Deft, is not guilty for to render him liable un- der the statute it must be shown that tr;e act was done actual- ly or constructively with a malieious intent v/hich the facts ■ show was not present. '2ov coiisti-uct ive specific- i/itent that special kind of iiitent or malice must be foiuido 3o if deft, threw at a horae and hit tr^e v/ij-xdow the intent would be there to maliciously inju're personal property and that is what this statute pro- hibited; but if the statute had been confined to v/-indows, throwing at a horse v/oiild not have been sufficient c The court says that if deft, had beeji grossly negligent in tnrov;ing the stone in that direction, knov/ir^g the window was there, he Vifould l^ave beei'i guilty; but that is doubtful as malicious in- tent was necessary by statute and that is not generally sup- ■ plied b:' negligence, Lut if his negligerice was of such a nature that it could be said he was acting wantorily in regard to that window the act specific intent would be present arid not constructive intent; that is it would be negligence as prooving specific intent, not negligence as taking the place of specific intent. REGIrJA V PAULKNER, p, 213, Indictment for maliciously ^"^ setting fire to a ship. Deft, while stealing roim on board a ship accidentally set fire to the r^om arid the atiip while re- placing tlie spigot. HELD, deft, had no intention of lighting the rum or of b^irnirig the ship, and he did not imagine or have any grourids to suppose that- the fire would be the result' of his act in stealing the rtim. Thei'efore he is not guilt i^. Even if the crime was not maliciously settirig fire to the ship, but simply setting fire to one, Be ale thiriks that in ligl-.ting the match to put in the spigot he was doing hig duty as he ought to do and that he was then all through v/ith his crime; therefore Belae thiriks even consti^uctive general 3S ijiteii.', couid liO'c be round in i'-his case, RLG-irrA V LA71I.IER, p. 21V, indictment f-or maliciously •Aoundin: ::« A quarrGl arose batween the deft, and V in the jublic house of Xo Deft, ai;..v;d a blov/ at Y wi'tii his hell but the blov/ bovo-ideu. off accid8jrita.ll,.' and sti^-ick Xo M-iLLD, dafto had Lialicicu3 intent against one person in the firit place and in carrjrinf: out that intent 'jovjidad X; therefore the la'T considers it as rialice a.cainst X, This is a clear case vhei-e a specific intent can be carried over as deft, had precisely the same intent in the first place as v;a3 riecessary in the second, SUi.ilvIARY, Specific intent requires an express state of mind ard. so to carry it over there nxust be originally an in- tent to do aliiiost the saivie precise thinr; or cne involving the same kind of indent , Therefore- specific inient caru-iot be car- ried over fror:. different criiues. Thus where one mixed poison- with an intent to kill A and 3 was killied, it v/as carried over - Gore's Case. Trat where A fired at an a/iinial and his £ur: set fii'e to a house it was not carried over; nor where one threvf a rock at a crowd and hit a window, where there was a statute against ii-ialiciously des^royinr, persorial property - Regina v Pembilton; nor whe-n one is stealirir rijm sets fire to a ship - Regina v Faulkner, SECTION FIVE. CONCURREHCE 0? IIjTEMT AXD ACT, To constitute a criiiie there must be both an act and ari intent and both must concur at the same time; that is all the necessary elements must be present at the same mouiOnt arid this is true in criiiies requiring either reneral or specific intent, REX V KNIGi-:T, p, 220. Indictment for 'break inr a.nd en- terinr a dweliinc house with intent to steal. Deft, supposed the the goods belonged ta X and entered for th.e purpose of taking them on his behalf, HELD, the indictment is not sup- ported as there was no intention to steal, whatever the be^ ha3s ab initio" vmich only applies in civil action and ieft* here wouJ.d be liable in court on that doctrine. But a lej-al fiction caniiot be em- ployed to i-ia]-;e a crime and the intent and act must be actually concurrent o • • Uo S« V FOX, p. 227, liidictmeni for obtain-:,- roods on credit ;Yith an intent to fraud iri violation of a U . 3. statute providing that such acts v.-iihin three months of becoming bank- rupt are criminal. Deft, did obtain cood.^ urxder false preten- ses, not knovTinc at the timo he vVO-xLd become barikrupt , but - • subsequently barikrupt proceedings were commenced against him^ UELD, the act v/as not an offence at the tir.ie Conmitted arid cariTiOt become such by any independent act of a party with which it has no coru-xect ion. There was rvo crimirial intent as the statute applies only to acts conviiitied in contemplation of bankruptcy, and the mere fact that barjkr-aptcy does follow does not cqrry the intent back to the act. At -the time of tlie act the intent \7a3 lacking to make it criminal, STATE V ASKER, p, 229. Indictment for obtaining money under false pretenses. Deft, applied to X to purchase some mules and gave him a -first lien on larid he represented to be free from encuinbrance, X had also executed a deed of trust on the same land t'O Y, who, however, co-jjicilled Jd/' deft, in his dealing wi t-h X, HELD, there was no false prebense as Y councilled def'n to represent the land free, arid Y thereby v/aived his lien; bo no property was obtained anJ fc-he pretense v;as not false, althougi'. deft, believed it to be soo Deft, must be acquitted. This case is good law. Deft, not only intended to do a criminal act, but did what he thought v;as a criminal act; but on accouTit of -something he had rio knov/ledre of he was not gui- lty of a crime, 158 Mass 5 452 - selling liquor against -a statute allowing salee only for medic irial purposes-. Deft, thoi^ght he v/as sel- ling for a beverage but urtknown to him, it was to tie used for medecjj-ie-.- Deft, acquitted, 3 C, cc Pc, 420,' Deft, pas -;ed a bardrnote of a bank he knew had stopped payment ,' Ke aften'/ards fo'orid one member of t-he firm was solvent and the notes v/ere eventi;aily paid. Deft, acqtd. SUMMARYo The criminal act and the cr'iniinal intent znuat coincide at the same moment to raal^e a crime. Mere intent vi^ithout an act is not punishable - Rex v Knight and Dugdale V Reginao The doctrine of relation which existo in torts does not apply in criminal law - State v laooreo One cannot become £. criQii'.ial by the ratification of another's crime - Morse v State o If the act done is not criminal although supposed to be and althoivgh the intent is present there is no crime"- rtate V Ashero CtlAPTER SEVEU = INTENT AS M^^FECTED BY CIRCUl.iSTANCES » Section One o Insanity o (a) Test of Insanity, M'NAGHTEN'S CASE^ p., 231 o In answers to questions put by the House of Lords the judges said: where a person is af- flicted with insane delusions and does a crime, if he knew at the time of coirmitting the crime, he was acting contrary to the law, he is punishable; the jury must decide whether at the time of the act the accused was labouring under such a def ect - of reason as not to know the qu.ality of the act he was com- mitting; or, if he_ knew it, that he did not know his act was wrong. And if under a delusion as to existing facts he com- mits an offence, he is to be considered in the same 'Situation of responsibility as if the facts supposed were real. These answers by the judges are extra-judicial opinions but it is a very good statement of the "right and wrong" 'teat, and it is the rule and test adopted by the English courts. - REGINA V HAYNES 5 po 234„ Indictment for murder. No mo- tive was assigned for the act and a defense of insariity was set up^ ' HEIjD; the question in cases of insanity is whether the defto knew the nature of the act he v.^a s doing and that he was doing what was wrong. This test of insanity - "the knowledge of right and wrong test" - prevails in many jurisdictions and an irresis- tible impulse is not held to be such insariity as will excuse from crimeA " - COMvlOIWEALT^: V ROGERS J p. 235, Indictment for murder. Defence, insanity^ HELDj. a man is not to be excused from re- sponsibility if he has capacity and reason sufficient to ena- ble him to distinguish betweeit right and wrong; and if he has 42 t^ o la- this capacity and the j^iiowledge of the nature of the act- he is doingp partial insanity will not excuse » But if he acts from an irresistible impulse which for the time being over- v.'heXm8 his reason, he is not for the time a voluritary agent and is not responsible. Thie is one of the jvirisdict ions which, starting from tHe rigii't arid wrong test, holds that the test is satisfied and the deft, excused if he act-s because of an irresistible jjiipulse and not as a free agent, ' STATE V RICHARDS, p, 238. Indictment -for burning a barn. Defense, insufficient mental capacity. HELD, the qu©^~ tion for the jxiry is whether the mental capacity of the defto was sufficient to warrant the impution to him of a felonious intent, if the deft's perception of consequences was orJ.y such aa is conmon to children (bf tender years he ouglut to be acquitted. This is another test of insanity which Beale does not thirik is tenable „ FLANAGAN v PEOPLE, p. 241, HELD, the unsoiindness of mind sufficient to excuse the deft, on account of insanity- should be sudi as to render him incapable of knowing or- dis- tinguishing right from v/rong at the time of the acta The ele- ment of the pov/er of choosing right from wrong has not been accepted at law as an. assential element for the defense of irt- eariityo This is the riglit and wrong test again and this case dis- tinctly refuses to aJlow that an irresistible impulse is a de- fense a ■ PARSONS V' STATE J p, 242. Indictment for murder, De- '^ fense insanity o HELD;, the questions are:- first was the deft,^ at the time afflicted with a mental disease so as to be in- sane? Second, if go and he did not ki applied to -the particular act in ques"! responsible. Three, if he did have such knowledge but had. not the poTwer to choose between right and wrong, and if the crime was so conriected with his mental disease as to be the product of it eolelyj he is not responsible. With these suggestions the inquiry is a matter of fact to be left to the jury in each particular case; so there is no legal test of insanity^ . V This doctrine that there is no legal test of insanity, bt that it is a que^ti-on of fact dn each particular case is fol- lowed in Ala,, No Ho, andMicho.. and Beale thiriks is the true theory 43 rnov/ right from wrong 3-8 "^v. \ 3tion he is not legally ^_^ ^ SUIvIMARYo The real question in criminal law is not whe- ther a man is insane but whether he should be held criminally responsible, ari-d so we must find the i-ight test of accounta- bility in criine. This is something like finding general crimirial intent as the object in finding both is to secure a state of mind in which a man must be to be pujiishable , In old medieval times the law did not look at a man's sanity and the modem idea of puriishment in cases of insanity is a grad- ixal growth from the time when a man was puTiished entirely for his act , The first step in advance was that a raving maaiac ' would be excused but it is only comparatively recently that the question has been viewed from a scientific standpoint, v The idea became quite prevalent by the begirjriing of thi? cen- tury and was quite firmly established by the time of M'Naght- en's case, 1843 j that a-mari in a certain state of mind shovild not be puriishable but just what that etatle of mind ^jnuEt be was the disputed point <, This case adopted the right arid wrong teat which has continued in Engiarid ever sinc-e arid been fol- lowed with many jurisdictions in this country. But in 1886,- in the Alao case of Parsons v State, the true doctrine was laid down th^at the orily accurate rule is to judge each ease by its facts arid that is impossible to lay down any definite test, BEAIxS commends this -case highly and considers it the best opinion on the subject. "^ -b'ii} ^^^^ ■ ^ (b) Proof of INsanity. PEOPLE V GARBUTT, p. 255. The court was requested to instruct that sariity is a necessary element in the coirmiasion of crime arid must be proven by the prosecution when the de- fense of insaJiity is set up, HELD, sanity is presumed uritil proof of the contrary condition is given by the defense; but when any evidence tends to overthrow this presumption, the burden of proof upon this part of the ease also is on the pro- secution to establish the conditions of guilt beyond a reasoi*- able doubt , This case holds that the prosecution must prove both the act and the ijent for a crime and that a defense of insanity is not an excuse but a disproof that a crime ever existed. However, the burden of producing evidence in the first in- stance to rebut the presumption of X^sanity and intent is -upon the accused. Beale thii-iks this a true view, although i-t is held in the minority of jurisdict ion„ See note, p. 257(, STATE V LAWRENCE, P/ 258. HELD, the plea of insaraty is a sort of plea in excuse- as it shows an excuse for what would otherwise be criminal. Every mari is supposed to be aane 44 // IJ '^4 tya. and this stands until removed by at least a preponderance-of evidence; so the burden of proof, where insanity is set as a defense, is on the defto This case is probably law in the majori'ty of jurisd-urtioii- but Beale does not think it is the true viewo SUJvIMARYo Eeale agrees with People v Garbutt, Insanity is not a juetif icati-on or an excuse for a crime but it is a defense , if anything^ The reason an insane man is not punisl*- ed is because he has not the intent to do v;hat he does and, so • the defense of insaiiity does not admit he has committed a crime but saye he has done no crime o The presumption is that a man intends what he d.oeB and so the burden of bringing in evidence oo attact this preauinption is on the defto: but the burden of proof, when the presumption is once attaclred, is on the prosecutiono This is just as in any other criminal case, that the general criminal intent need not be proven by separ-** ate evidence until tiie question is broiig^t up, but is pre- sumed vn-til attackedo 3ut then if; rau^t be pro^'ed by the pro— secutionc The prosecut ion must then proove it to the jury be- yond- a reaBOiriable doubt lilit all other parts of a criminal case.. There is a late Uo S-c case agreeing^ with People v Gar- butt - Davis V U„ So J 16 Su. Ct , ReP„j 253, SECTION TWOo INTOXICATIONc PjEARSON'S case, p, 261 e Indictment for muiider^ De- ^' fence, drurA-enesCo HELD, voluritary drurikeness is no excuse for a crime o ' The j.ntent necessary is to be inferred from the fact that def 1 J when he beccmss drurik , must take the peril of his act». It is in the nature of constnictive intent,, but it is more accurate to 3a-y he is responsib-le in spite of the absence of gene ral int ent o R.EG-INA v DOODY, po 261, ■ Defto attempted suicide and air- leged drunK-erieti?} as a defence, Hii-LD, drurikeness is no excuse > for -a crime,, but it is material in determining v/hether or not derto really intended to take his own life. This 's^as an attempt to coamit suicide and to a't^i-empt to do a thing there must be a >-?peci-if-ic intent to do it^ Dmnlre»— ness will not eecuse what deft, I'eaXly did, but- as an attempt- implies an intent to do something further, defto may show he did- not intend, to kill himse3.f„ Therefore, in proving a crime -requiring specific intent, druj'jkenes's or any other method od • proving deft, did not have that intent is adiaiBsable as evi— 45 teij^j^ baa S ; riiTsani sir ~ay -d. IS -3 -*V0 Si denee. General oriminal intent can be aonstrued I'-or aoit'o-done Tivl-.ile a man is drunk and he is treated just as li' he v/er-a 8ober» for getting drunk ia either an a^it ^rimixial poi? as or ' at least negligent o PLSiGlNA V GAMLEN, po 262, Deftg committad an as&a.iilt while iutoxieatedv BEID^ drurikeneg-s is no excuse for a arime but in flonp.AdsrJ.ng whether the defto apprehended av- assault on hiins-elf the state of mind in which he was may be taken into account o ilEGXNA ■'}■ DAVlK, p. 262 o Defto attempted murder while eiiffering from deleri-um tremens, resulting from exceeaive drinking,, HELDj if one by drunkenees brings on a state of di- sease v/hich eauHsc; auch a degree of madnets whi^sh "vYouM exeuaa him if tiauBed. in any other vay, he ie not respunisible for acts resulting ^herefrom» Thi£i ig good law as delerivtm tremenn is a forn-; ct inijan— ity and insaruty is a defen-.sij no rcattor hoNV rifa^Kedo ?£-0PL.5 r'S' ROGERS, po 254 o Indictment for mur:erg The jud.ge i'el'URod, to iu\itract the. jury that ir' vner2. -wa-j nexuher intent nor motive by reai^on of intoxication, deft» should be convisted of ms-nslaugi-iter inuteado HELD^ the arirof of xaurder cannot be reduced to manslaughter by showing tne deft.^ was drunk, v;hen the same offence ^ if 'soxrmitted by a sober man, would be murder But if the defto was so far deprived, of his senses ae to be iriaapable of entertainirig a purpose or acting from design J it would be different^ Intent mnnz be diatin- gdished from motive -and mer^ incapability of a'-jting from rao«"' tive v/iJ,l not exftueeo If a man is so dr^arJi as not to be able to entertain spe- cific intent 5, where a specific intent is required., it is of' • course a fata.1 obstiniction to that crime,, The judge iu this case neat e a th^t dnjnkeneiss aggravates a crimen _, but this^is not true as each crioB is consid.e?u-ed by i^seifr, - _ "' "—' CHOICE V STATE, p. 269 o The court refiJised to instruct the .jury that if the defto was irresistibly com.pelled to drink and thereby became- insane and killed the dioeased., he was not fc;uilty of homicide. HELD, the excuse of an irreaielrible im- puis? to drink is not established as an e.^touse for drunkeness, and legal responsibility cannot be avoided, by it o This case ia rather on the line but Beale thinka it ia rigiitly dejfiidfid. because the deft, is to b3,aire for an infJAieiuja 46 caused by previous drirLking. If it could be provdri that tha disease was caused by an inl'luerice for which deft 4 was not to blame, of course he is not responsible, ^ STATE V JOHNSON, p. 270. Indictment for miirder in the first degree. Wilfull, deliberate, and 'premeditated killing must be shown to support this iridic tment, H-ELD, intent must be shown in fact and the state of the deft's, mind is material and so evidence of intoxication is adcais sable and tend^ to show that deft, was incapable of deliberation and sc guilty oif murder in the second degree rather than in the first. People V WajJfer, p. 271, Indictment for larceny. Deft, was intoxicated. HELD, larceny involves wrongful taking and felonious intent to steal, and so if deft, for any reason in- dulged no such intent the crime is not conmitted. These last two cases are r;ood law and show that drunken- ness may dispcove a crime where a specific intent is required^ SUtvIIiIARY. DrunkenriesB is not a defence in itself but it may act as piece of evidence tending to show a certain crime has not been committed, as where th« crime requii-es specific intent. One who voluntarily indulges in dririk must take the peril of his acts arid the general intent is to be iriferred from this. It is in the nature of const i^^ctive general in- tent, but it is more accurate to sa-y deft, is responsible in spite of the lack of general intent, Drionkermess cannot charige that which is a crime into that which is not arid it cannot exaggerate the crime. Drurikemiess is therefore differ- ent from insanity v/hich is a defence in itself, but delerium • tremens, being a species of insanity, is an excuse^ SECTION THREE, COERCION. ANON,, p» 272. A woman coxivnitted theft by command of her husband, HELD, such command v/dthout any other coercion will excuse any felony in the v/ife. ANON,, p. 273, If the wife and husband coiiiTiit a lar- ceny togehter or a burglary, there is no felony in the wi< man is indicted for a crime, and a defence of coerr.-.iori by her> hi'-Gband i<3 set up, there ig a presumption of such coercion 48 fi'cm his presence at the time of the vrrimey^ but tiiiy pr-evsurnp- tion is not coriclusive and may be i-^ebutte-io SU(3h p'reK'-imption 13 raised if she is riear enough to b? undsr hi'j irrir.ediatc- con- troll and influence; which last ma3t be left to the jury and • ■wilJ. depend on the natui'e of the act. rrrj. the v'jj.r.-j'Umsl.auces of the case, SUMIvIARYc Coei-'cioj-i is o. ter;hiiXoal teiTA f c r thfe isontroll whinh a huuband is 3i.ippo:^>ed to exert ovfir the vvifeo Oompx"il"- Bion i'S a genera], teita applying to contro^l exercised over- • anyone It was at first held in 1352 that coercion was a question of fact, but xmz later, in lG50i, p'^it upon the purely- technical grounds that if the wife acted in the husbsj^Kl'' s pro- pence Bhe was excused; firially the doctrine went feo far as to- ho].d that on a joint indictment the \7ife should be discharged at once 2 Yet the doctrine had exceptions;, suoh as troaaon arid murder^ and- ■soixe authorities add purjury, robbex'yj and all forcible Crimea. In certai^i offenr-es ali^Oj especially -litatu- tory offences a^ selling liquor > keeping a baudy house^ etCo, a mai-ried womari is not excused because it i? not a quest iorx of intent but a qTiestion of stopping a publi.ii m'.iiiynse .. At least it may be said that in some '-iuch isaeee not requiring an inteiit the presttmpt ion is against her-. The uiodern doctrine is that if the husband is present or near onoujrh' ko that ahs; is under his controllj thie law presunee coercion,. But if he is absent there is no such prasi-impt icn, and even ^^'h ere the pre'-- Bunaption exists it may be rebutted by evidence. - A person coiopelled by fear of death to do an ast is ex- cused, but he must escape as soon as posssible, SEGTIOII FOUR. IKFAKCYc INCORPORATION^ HAWIvINS po 276 o Neither a son nor a 'serysn.t are ejceused the- comiiiission of any crime by the caamaJid or coercion of the father or master, REGINA V SMITH f p,- 27G„ -Indictment for laaliciou^ly eet'- ting fire to a ray-rick o Deft., was a boy of ten yeai's and there was no evidence of iralicious intents ILSLDj a -tihild un™- der seven yeai's is presiimed incapable- of crime, but after fourteen ha in absolutely responsible , Between seven ax^X fourteen a malicious intent maist be prcAren and cannot be pre- Buxned from the mere comnission of an act. This is the law as to infant Bo There is an arbitrary rule that a ohdld under seven cannot ■urder ariy circumstances be convicted of a crime o This is foiindeid on the theory that a child under- seven cariTiOt have a cr:lminal intent j -but it ig of course an arbitrary rule, although it is absolute c Between 49 the ages of seven and fourteen there is no presumption either way, arid so the goverriraetn must prove both act and the exia- tencG of the intent o After the age of 14 the govenjiuetn is assisted b-y the presumption that a man intends what he vol- untarily does, COI.ftiaNWEALTH v IT£W BEDFORD BRIDGE CO,, Po 277, A cor- poration v;as indicted for a nuisance in rrraintaining a bridge across a river and thereby obstructing it^ HELD, a coi'pora- tiov! cannot be irKiicted for offences which derive their e>-iin*- inality froni evil intent; but beyond this they are ?,iab'Ie for Wilawful and wrongful acts conr.iitted by their authority o This ease in the Uo S ., and cases in England about the same time decided that a corporation can be punished for a positive as well as c negavive act^ and can now be indicted for any crLme it can coriTnito They carjXiot of course have specific intent arid hence are not guilty of crimes requiring aucho AiKo the crimes of corporations are neceesarily limited to those punishxable by a crime, as a corporation cannot be pun'isiieci in any other way, exc^ipt by tailing av/ay its charter, which Beale says is never done -in criminal caseuc SECTION PlVEo IGNORANCE OR MIST.^KE. LEVirrT^S CASE, Pa 2,79, Indictment for homocide, Defto thi-ust his rapier into a place ^v'here he had reason to Biip~ pose a burglar \7as and killed one who was not a burglar, HELD, not guilty of homccideo Defto had the riejit to do the act he supposed he was doingj, tlriat iSj kill a burglar j and so there was no general criJAinal intention. This is a case of mistake of fact and the one vTho acts in ignorance or mistake of facts is to be treated according tc the facts he supposed existant, foi' he dosB not voluiitarily do the act he does arid there beirig no negligence, there ie no criminal intent. This principle extends throu^i- the whole of crioinjial lavr , except in a fe-w statLitory offences, that if -xe acts througl-. ignorarLce on the state of faets, he - i'i to be excused criminally, althou£jx his mistake is that of a foolish marie REX V BAILEy, p, 2S0 ., Indictment for malicious ghoot« ing. Deft, did the act at Sea au'id the statute under T/hr.ch he was ind.lctsd ■■vas pasaed vnien he was out at Sea, and- he could not possibly have Imown of it ^tYi^ri. his act v/as donso KELDj in strict law he is guilty, but under the circuriistanae© the • judge J? applied for a pardon on the git*our.>d that the defto eeu^ not have heard of the statute o 50 ^ The j\3Ldg£)3 themselves nppiiQd Tor a pardon in thiti ease and Bealo gay?i this -pra^ rjot on the ground of in justice but - that it way a method of re ys ■-.-'Bins the desi^iori an'3/ indicates their view thJ-.t r,h« yonciction waw. ag:airj.at the law>i One (raiJ.c 62 - Er-ig Aj:!.vi {*at;o - an einbargij as:.t wai passed and thi?5 vegi5el Bailed within h fev?- hours after the pasaa,ge of liie acta When the inf ci^aat io.-i G'ouid not posgiMy ha-tra reached where the vegBel va« o Def ttj. o were scnvicted o There is no doiJ.bt oi tijfit ciorrectnega of thi^i fItieision,j besauss the legis--' lature ha« a perfsst right to rxake a law go into effest -ali > C'yer itg territory in^ediateXyj however •unjust It ro.ay he,. In R'i.v; \' Bailey^ Beale thinks there ia a distinction becausSg aj.tho'.Agh the legislature has tb.e power to Isgiwlate fc-}." .Si->.g"- lieh ves'selis on the high Be^ze,, it does not do it on the theory tha^- it ii? pi.rt of the territory of tli£ ratio/ij but or- the theory that IX ha e t.b.ie right to say what law th£ veseel shall isarry av;ay ft'ith it :fjr*oiri SngXando If thit?, view iiS correst th« lecrivj'iature cannot cliange the law for a Yet^eel 8.flT.f^r it has left port* R.BiX '/ HAIjLj po 2Slo Indietment for robbery.. Defto^ a poacher 5 threatened a game .keeper with -sj-iolenite if he did ' net give up jjertslii wires and game gei2;eii by the gaoie K'eeper,/ The keeper a^raented arid gave th^m up th'rough fear of violenGCo K.SLD, if defto aisted under a bona fide belief that he vfas re« crj-vorins; Jai©- own property thex-e wat^ no intent a.nd deft, must- be a.>'.qulttedo There v^-fiB a mistal^e of law hereg but it was a cage of robbery;, and robbery requires '■ specific intent to steals v/.hie.h rjould not be present if di?.ftu- t.b.ou.e;ht the grjod« were his o^.n and that he had a r.iglvt t o v.Ii.s2jo R5IX Y i;;iiGPs p^ 282o Dfif t y^ an •::!lienj. wag indicted for , an offerifte tsoirjaittee in England o Defense j that the ast wag nor. a ,^rime in 'ais o'vtsti country an.d that he be.lie^'ed it to ba an innocent act o HSLD^^ it is no ejceuRe even if the of fence - wag not a orime- in his own sovuxtry and. deftc ViTi f? ign.orant of i t "3 er J jj'i j . «3, j. t.y . . .A .raista.'ke of law i.i-i no defeneO;. beoa.use the .deft,, intends to do the ac? t hfi does: but .i.n the fsase of a mi is take of fact he (ioo^. not. do the aet .ha thin-V-s ha is doing,, The reation why a \m.i\ j.% punishable yilx^.w he is igmsrant of the. 3.aw 1% to be. explained on the bi'oad grounds of publis poliey^ for otherwiee a j)Qrty woialid i-ia-^e an advantage .by >;eeping ig.Viorant of the. law 5 RBGIWA V TOWSE, p.. 2S3o -Indie tine>vt for '?e\%\r\^ afire iJialiciouBly against the statute,. Xt appeared that fires ifere set iri those places orjeasionail-y by persons to iinprove the gi'cv;(-,h of gra«?-. HEjjDj, if defto set the. fire tkixilrin he had a rig^it to do so io -v/ou^-d not be a crirnima.! offence under the atafiute, ass the aiiatuce requires rnaiioeo The apecifio intejit was wanting hnre arrd hence there was no er.imej althougli the:re was an unlawful -act o SIMA AT?Y. WHoevcr breaks the law of the land is guilty ■ whether he had knowledfje of it or not «- Regina v Esop, Brie- Arm Case, But it may be a question qhe'ther a particular act applies to an individual - Rex V Bailey ^ One may act contrary to law and still \7ith such an int-ent as not to be guilty of a crifiiC involving Bpecific intent. As in Rex v Hall, Igrior- ance of fact would excuse and then deft,-, is to be treated exa''-;tly as jJT the facts \7ere as he supposed them to be; but what a reasonable iiian v/ofjld 6..0 under the circumstances is not the teso J for in c.riaiijfial lav/ tlie thing is to tird a crirni^nal Btat,e of mind, in a jjarticalar individuals CHAPTER EIGHT. xHTENT lil STATUTORY 07FE1IGES , V.'e have here&oforo been dealing with interit in common law crime Sy arid only with statutory 'crirxTe,s as they were desci'ibed in the very words of the statute o But any one of the conmon law requirements for a crime may be altered, by legislature for al3. crimes or for any specific crime, and the legislature may say that a certain aot slisl3/ be a crime without any fault whatever of the man doing it o This power makes it often nec- essary tc find, oij.t just what the legislature intends; and th® question is one of interpretation,, for statutes simply operate as changing and amendir^g the conmon law and the- comnon law i'©" mains except so far as it is altei-ed cy statute-,/ AIJOIJ.5 p. 284, Deft.. \-a3 indicted for having in her possession governm.ertt stores without a certificate required by statute o The prosecution argued, thay as the certificate was the sole excuse she mirst be oonvicted.,- HELD^ all the circum- stances of the case must be considered arid if deft.„ came into poetess ion withotit fraud, or .-pi^bPhavior the Bhou.ld be acquit- ted. This caiie is pi'obably wrong.. Left's, defence aniounts to Baying that she caive by the goods lawfully; but the statute does not require unlawful poseevjB ion, as the j.egieiature dj.d. no'ii wish to go into the rigrit ana wrong of the possesniony Ixut 52 to orily xnaJre the poeeession rightful by the possesTiLon Orf a certificatec Defto also had the crimLnal intent for she voir* untarily held the goods; therefore she has the C ornmon Law el- ment of a- crime arid she orily made a mistake of laisr, which is < no excuse J REGINA V TITIKLER, p, 285. Ij'td.ictment under a btatute for taJjing a ward from her guardian^ Defence, that deft, -ac- ted because he had -pi-ouiised her father to tal^e care of hero H£LD, although defto acted without a ri^ht j yet if he hone'» > But the. eaae is ri5;-.t a-rf a r,..atter of sub y t ant i yo .lav«% The vie la'jt .vayes have been rai'-stakes of fa^'n- and &uc;h miatfi.kesi' have been rif^t.ly CO?vlIvIONV/.eALTH v LIASH , p. 304 o Indictme/.t for marrying a second husband, within ^even years while her fonr»or hu^j-baiui was livingo She beli^aved her first husband to be deado HELD, the iav/ intended to fix «even years of absenc-e of the firut hue: band ae th?i only sy.euse for marrying again c So if a '/iMiQan marr;?:es vvith:in stven year;: after bhe SL^ddon dieappoarunce of her husband and he is ctill living. «ho Is giiilov of big i^y for she married at her own riek:> The facts in this oaae are the same as in Regiria v Tolscri but the des'iuion is different. T]:e stati^te either means to punit5h all those knowing or siiepetjting their husbands to be living, that j.Sj, in c oriJ-iO c t i on \7i ch the Comruon Lav^ to excuse mistakes of fact^ cr it means that all per^ont- marrying vvithin ce-ven yeari^ do v;o at their peril: there le no aiiddle grf)und as there i'.i nothing in either statute to lay any fcuTidation for a -d.istincJtion according to thxe reasonabianes'5 of deft--s belief,, Seals "sayi; the :r eal obic-t-t i-;-: to ericourage oaar-riages arid to i:;et a tiji^a after ivhidi !^hey will te allowed I:-; any event J, and that thero is no Ooca«ioTi to keep the deft^ nlx:^^e on accjount of a case -^^hiwh rarely orscur?. , O-'.sntiequently Eea.le thinkvJ the objeot of ths •■/■( at uten referring to bj.ga.rr,y is mere- ly to pre-yont sec-onJ aiarrlageH vrt;ere there ii? no foundation of rightj. and th^at rAietakop. of fact should exisuse the game as in COaIMON 1PM TrUv^-i^ No state has gone as far at Mase^ in this case ; j.r tl-ii'f? isai-je can bo uphe'ld it imjiiro ' ■ \. ..'..L,'- lature wishsd to puj-is-jl:. the r.aXe of .';.iqy,.( .. ... la-- t.ent» Eeale'H pc-;i-':ion iri r'Oj^ard to or3.c:,i ;:„...: :: .- ...:. v/J-a^ tutory cffenyea iri that every s'-.atutc PhouAo be it;.for-e5d ^ust as it, XM paeaedj, and 3.f the;/o Ih no '..".■ «ut)'; doirig, avay with viiS CoiuTion Lav/ clemen- oT .Intent^ the c!.bEC]:iC.s of .It throUfV.j, inis'-'' ■ take of fact, insajiity, infancy^ or any of the Corj?rion Vur liB'-' fences should e^cuye.. But in rnoot jurisdictions tiiere arfe SDia.1,1 police offencec pixniEhable by a fins and pertain offon" ces Buch an Coxrmon Lav/ nuisances, ^7hich never required intentj that are punishable rerardle'^'j of int ent = Beale'g idea 13 that these J. like nuisancer „ are noi-e like tc't?, than, crjrnee and that the J.dea of the lav/ is to det^l with them so as to get coirjpen'5at ion for darna.ge done, as in torty, Biit the pubj.ie can only proceed by an ind.ictnent and the indictment in the®^ caees i>5 not merely to puni'.^h the crimen but ie the method of obtaining redreys for the Publi^::,. Vfiiere the pvvrii BhoienL is irupriEorinient and not a fine tjii s argunient will not hJsXd be«" Rau5e the idea of compensation cannot be found in a c:avie of imprisoriment .J There is thus a vaguely e^cablished .iiatincticsa betiveerL v/icke-d acts 5 and indictable offences m the nature o.f a civil v/rcng^ There are a fev of thesse latter at GO.MT.ION LAW of v/hich cocmon nuisaricet; are the most important, bub r.tat'-^ liquor licences iri this v/ay this case is supportable r 4' GOMiaOI-KV.i3ALTH v THOMPSONj p- 308,. Indictment for adul- tery Defto had m.arried and lived v/ith one as his v/ife who.ca he believed, to be a widov/ ';7hen he married her 5 and she did not know her hus-band to be livirjg, as she h^ad not heard jf him for eleven years. The j-udge iristructed the jury tr^t if her hus" band, v/as living, deft,, v/as guilty, regardless of his belief^ " HELD, the absence of criminal intent on the pai^t of th^ defto is no excuse 5 but tl-^e first husband having been uriheard of for over seven years j.s- supposed to be dead, and on this gro"and de f t c is not guilt y^ The bigamy statute says that if the husband leaves the v/ife ard. is not heard of for seven yeaa-s, she is not guilty of bigamy if she marries again, but here the v;ife had left the husbando However 5 this point v/as not noticed in this case, but the v/oiian was af ter-ffai'd. convicted of aduliery on this ac-^ couTito But the adultery statute is the question in this case arxi that makes no exceptions as to time; .hov/everj the second court iield that the bigajriy statute also excused, adultery ^ af-- ter seven yearn, but that within seven years the ruling would- have been the same as in Gomn-ionwealth v Mash,, -The rnlirig of the lo./er court shows the absurdity of the Mass „ doctrine if carried out to its logical conclusion. The --'easoning of the )D // MasSo court in Coxncaonwealth v Mash and in this case iZ the events had been cor/xuitted within s-even years would not. be followed in any other jurisdiction. STATE V GOODENOV;, p» 309, Defts. were jointly indicted for adultery, having cohabited as husband and wife, while the woman had a former husbajid. Defence, that her first husbarui had married again and that the justice of the peace informed fcbem- -that they had a rii^ht 'to intermarrj' and that they acted in good faith. HELD, deftSc co^iaiitted an act in itself unlaii~ ful and ignorance of the law is no excuse. This is a clear case as it is a mistake of law « SUMLIARYo The true principle as to intent in statutory offences is that the statute deals orily with the act and not with the intent except by express terms, for what a statute does not reach in express terms it does not reach at all. Therefore if one acts violation of a stattite uTider a mistaJce of facts he is excused, v;-ith the following exceptions:- first when one attempts an act which is on the border of the crime he ruriS the risk as he voluntarily does an immoral act init- self Vifhich supplies the necessary intent. Second, matters of police regulatiogi do not generally require intent as these are really public torts, such as liquor cases, nuisances, etc-o Mass. is the oruly jurisdiction which holds that the G-oomon Lav;- defence of mistake of facts is abrogated as- a rule by statutes which do not expressly state the facts. CHAPTER NINE. JUSTIFICATION. Although a man voluntarily does an act which is criminal and all the elements of a crime are present, yet under cer- tain circuiiistances he may excuse himself. The burden of proof in criminal cases is always upon the prosecution to shew the act and the intent, but in cases of justification both of these elements are present and justification is of the nature of a plea in corjfeasion and avoidance, although of course in crixnirial law it all comes iu under the plea of not guilty, SECTION ONE. PUBLIC AUTHORITY. ■ REGINA V LESLEY, p„ 311, Indictment for false impri-son- ment, x had been banished from Chili to Englarjd, and deft,, being master of an English ship then in Chilian waters, con- 56 tracted vn.tli the Chilian eovei-rtiiont tc cari-y X and. ethers who had been banishod, to Liverpoo3.o - HELD, d.ef t , can justify all that he did in Chilian waber-s as the at:ont of that goverriinent and. ^under its authority; but as to ai-itg-done on the high seas defto is subject to tlie . jurisd.i Cition of EnG..T.anri,„ Although he was justified -in roceivlng the prisoners i?i ChiJ.i. that jus-- tifi"-sation neaped when lie passer], the line of Chili a:-x jiirisdie- tion'c ... ... . , Bea.le thinl^s the cat^e -firong .from. th.e facta Btat.fDd>, .A. main is justified in doi.ng sn act according to the' lav/s of the stafe in whose jurisdi.ction hs dees it ^ and so deft, -was jui^tified - ViThile in Chilian v^atersj There is rjioth-in^;- to sh o.vr that deft, exercised any restraint 'on the - prosecutor after .he g'.it out of Chilian -waters, for deft; was urjder no obligation i"/0 alj.Cu' h.im the'- use of his boat ei? to taJ^e any active -measures xo help him out, Ihe point is that the pyosecutor W8.s- not prevented from - using any oiMinary means to get on shore ^ as at the O'ti-nt of the Azores where the ship stopped/ there is not^iing to shovff that other passengers were let off; The decision is put on the ground that -false iiiiprisoniuent began the moment the boat crossed the Chilian line; but Beale thij.ks the; difficulty is that deft c -did not acts -at that t-ime, an he had used the in-- strument of imprisonment - the v/ators of the Sea "-in Chili ■ when he had the pxght to do so; \riien he crossed the line he had no-choice at ttxat moment v/hether the traters 'should stay around the boat or not, and be did- no other -act o The onls' act he did was perfectly justifiable at the time he did- It, -. . _ .... - . /^ w /.. STATE V MAYOR and -ALDERI.!£iJ of KNOX^/ILLEj p. 313 „ In- dictment for a nuisaJiceo Knojcville was inflicted wi.th small- pox and from time to time clothing, beddinr,, etc,, were bumod as- a precautionary method to prevent its spread, ami plaintiff who lived near was afflicted by the smoke and. F>e5?nt o HELD, the question is whether there was sufficient jvistif ication-and authority for the act done ; it was proven to be the best known mearis to prevent -the epidemic aiid was done i'or the public safety; therefore it was exciisable . This case is siaiply ari example of what may be justified. under public necessity. ... SUMMARY-, Everyone is justified in obeying the lawful corotaands of the goverrjment within whose jurisdiction he is, but-that justification is good only so long as he is witi^in the t&rritorial jurisdiction of that govemuent - Regina v Lesley, So too many acts which are harmful-to some 'may b®/ justified under piib.lic necessity •- State v Knoxvilles 57 • . Si'r-'^ioiT '"-Yo. do:.'j:^?ic ali'^^o:^1"v • REGlilA V a'^.lF?i:i, p. 315. Indic 'iriient fo;^ iuarislaarl.teiv Deft., fairer* of tYia deceased, wLo v;a3 a c..ild Vvro yeaa'3 old, £,ave hev a niAuiber of Surokes uit;-: a la:'r^a "Sbi.-'ap as a i^uniSk- jiient for a childiiJli faj.it. H£LD, the law as So corracoion has i'efei'ence orii„ to a child capaijle of appc'eciaiiri:,, sac i arid -he orii. que S-- ion fov ii.e ju.'y is v/hethe.' >ha deaiJ. v/as accelera- ted oi- caused by the blov;-s» Veydic". , ;;-.ihty, Parerits, uiasiCi'S, and ot/iex- persons .-.avin^ au'^ho-'i'sy in fOi."o dojiiestico li'iay give I'easonable cor^-'ection, but if i i ex- ceeds due uoderatioa they are liable foi* ;:-he consequences* 3i::cTioM t-:r££, P'^j^vENTion OF j'ELony. ?.£:: V COI,.PTOiT, p, 316. Deft, •;:7as co.-u.iissioned by a 3;..ei'iff to ar^'est X. Arid in the attempt to ari-est, X resisted a/id vas Isilled, TiilLD, deft, is not guilty of hOx.iOcide, 'A'e i./as t distinguish;- first, acts done in cd^rryiru^ out public authority, '-^hich inay r.s divided into, arrosts v/iti: a warrant, arrests './ity-.oui a v/arrant, and acts done i/i preven- tion of a feloi-iy; a/id second, acts in private self-defence. This case is /lOt one of simple arrest, but ari arrest -.yith a warrant. There is not iivuch aiLth^orit;' on this point, but what there is is to ohe effect that a v;a -rant ii.ay be executed vith the greatest necessary anoiirit of force, oven to .killing, regardless of the extent of the crL..e; t,;i3 is Oii the theory that one who resists an officer with a warrant is resisting, the aut..ority of the law, HxirTlIJA V DADlOh, p. 317. Deft., a constable, having ^"^^ been ei^ployed to £,uard a copse, ordered X to stop, vf..o was- coiaing out of the place wit'i stolen v.'ood, X fl^id and deft, fired at and wovuided him. hflLD, X not having conxdt te-d ar^y felony isnown to t:.e deft, at the tL.ie of his act, deft, was not justified in shootinr,. Deft, was iiot serving a wa.-rant i-.ere, but he had the authority to make ari arrest, lut this case is to the effect that if the act is riot felon^ to his };nowled£:e an officer can- not kill -.vithout a warrarit , as even in the old la^ it was not legal to kill in an atterupt to ari'eat for a iaisdeuieanor. Deft, could not hei'ii set up the excase ty.at he was killinr, in prevention of a felony if he did not know t..a: a feloriy^ was conuiiitted. Who can arrest without a warrant? - 53 U^ i. Any 2"ei'3L//i, ari orficc;.-" oi* o i:.'3-*7i33 , r^ay ;.iake an a.'i-e^v i.'i caT- cf a i'alon,; , • i?i casa a jTo'i.ony "..a? bceri cojuviii -ed and there i7 --oaiona^J^o __ro'.-.j'id i"o-' 3uni:eciin;^ a ceriain i:ian« 2, A peace oiTiccii- can ..c^^ an a.'-'j;''': v/iiiiout MSa'.-a.it' in case of fer,orii3s ajid o^:.'iain i.ii3^*e:,.oan3:*^ du/it; in ^ i^ •^i^^it, 3, i:y Tiatuies a.-id j.-dir.anccs j.;:ac- aiia police- ci'i'ijex'3 have i-.T.. c. . 1 a j.-.^ e .^ p o"./ e -• . We '7il . nov/ «!v.ppo30 ;..,6 ivji'son ar:-e s t-in;^ ^.aa a ..tt^ah ai\t- o''if-,y ■^,0 do ^o and v/\3.". cor.-^^ido'.- v- eri ' e can kil' a^ " ias'i j-'esort . In ; .e old la./ ^....e line was drav/zi a; felony, aa "ii.e p'-jTii ^-a-.arri fo./ all felonies v/as deah. and ihe felo.n v/as considGi'ed as one who ..ad already forfeited hi3 life; so it v,'a3 a jus :if ica:ion :.o i-; ill us rely :o arresi a felon and not 3iiapl_ in ca333 of pi.'sven'^ioj'i of felon,/ or in arrests with a warrant. The lav/ is very i.:j.c'.: al'^er^d at present and Beale thirdis r.h.a-: nOv; iherc- is no .-irh'h: to xiill merely to prevent an escape fi-O:.. a-'-'Os:, and h.at ': .£ '.;'.ole doctrine is prac- tically lOiiO , ?.:era :..ay h-j a?; exception in the case of a capital crLi»e, but l^ale ;::.iiiK3 '^\-ei^i: case \,'l\e:cQ one can shoot to iuake an arres: i.^ay be br:.ah-: "ander tyjs rule that one iiiay 3hoot to prevent the Cn-plstion of a felony; the vcCe for this pui'x'ose as to \.'.'..,en t.o felony is coi.ipleted is not the technical rr.le as to \A.e:i a criHiO is coxaiiitted, but is :.^uch broader; as i/i bi:r£,„ai-y, althoar--. tyie burglary is coi.ipleted as soon a=5 t .e offender yets o:'je finyor in the house, yet for ty^ is I'j: . e ^y.e fe^^on. i3 r.oi c^.Vipleie uritil th^e bur^^lar gets away. lat this x'ule 13 also iii.xi -.ed and at present to justi- fy a liillinr even Lil prevent ior. of a felony, ti:e felony criust be one a,^ai>i9t a perio.n or against a dviellinr, house, and so it does .not include such felonies as "^I'ceny, forgery , 'perjury , etc. It is iji all cases h.r oi*iL.ni to notice that killing: can never be justified except as a lant resort. Also a nan when he uses a weapon da.n^erous -0 life caririo i set up as a defence that he onl: int nds to cripple arid not to kill. Storey v "tate, 71 Ala., 322, Held, tha ■, a itillin^^ cariTiot be justified sii-^ply because it is :he only way to j;et back a L.an ' 3 p I'op e r t y , ^^ T^EGlilA V LiURPIiY, p. 310, Deft., a ^.anie keeper, det-ected X takinr av/ay a buridle of sticks froi.. his e;-iployer's larid, X havin,y atte^upted to excape, deft, called ori hLn to halt and, not doin,^ so, .vou/ided hia. with a shot. H£LD, it is an exceT^ of the le^al pov;er to arrest, to ioperil ty.e life of one com- ijiittinr a trespass or larcerry, i"or w-.icy. the legal penalties are i.alder thari death, U. S. V 'CLA'^Jv, p, 319. Deft., a 'J . 3. soldier, killed anotner soldier v;ho had been c our tmarsi. ailed and sentenced to labor in a lailitary p^-isori, but after sentence was attenipting 59 /x to escape. ''LL'D^ t-.-.c- Coi.A.iOn Law .J.i=3*^i/iC iij/i betv/Gon felonies and x.-ii3clei-..oa.norB does ;iu'^ exi3t iii ca^os ox j;iilii.ai'y service, end defi'a act. ±3 oxcvi3i\'olc if pe-'for..iOd in coiO'ipIiarice vith ;.is 3xir: 3od dut^y as a soidiei*, p.'ovided "ti-.ai he ac''"/ed in r,ood faith and v/itLovib i..alice and if the aco was no'i beyond the ecope of hig authoa'ity and v/as 3uc]~. as an oi-dinary ruasonable man vvTo'old j udr,e to bs leral, '"e \7ill v.-aive the iviilitary aspect for the present and suppose it au ii-^prisoriinent in ari ordinary jail arid that the killinfT was done to p>'event an escape. There is a difference here frox/i fonner cases because trie very act of escapinr is a criiTifc of hifi^i macnitude, arid besides the keeper of the jail has a warrcj'it, it might be aaid, for keapinc a man in jail as he is put there by the state. 3o even if the jailor ijnows the u.an escapinc is in prison for a small offence, L'eale thifiks- he has tha ri£j:it to erd'orce his office by killing if necessary. The point of this bein^ a military offence is also an import- ant one. There is sa^riC co.-iflict., but the better vievr is that the coiiiiuand of a superior officer justifies an iriferior when the coniiiiaiid is aparentl;. a proper one. Some cases- go farther, however, and say the comuiarid must be legal in fact. S Ui.MARY . Any persori, even a stranger, has the right to prevent a felony when such would involve great danger to lifa or limb of the person assailed. But the persoii must have reasonable grounds for believing in such danger and mere bona fide belief will not exe'use, for here the act is done with intent and as it is justified on grourids of public policy there must be a reaso.nable belief. As to the prevention of excape the general rule is that, if any one has the right to ar-'est he has the right to use the same measures to prevent ari escape as an officer of the law v/ould. B^it homocide is not allov/ed to prevent escape in case of all kinds of felonies. But we must remeiuber that escape froi;: iiiiprisorjment is a dis- tinct felony arui the justification for this does not rest on the original crime as that ci'ime is over; and as a general rule a jailor may kill if riecessary to prevent an e-scape with- out regard to the magnitude of the original offence* SECTION POUR. SELF-) DEFilNCi:, ANON, p, 329. A, having malice against B, assaulted B, and upon B's drawing A i-'etreated to the wall and then turned and killed E, HELD, this is murder because A's device to flee to the wall and then k-ill , having malice, rather , aggravates thari excuses his crime, 60 ~^£i.ll]k V KiJV^LZT, p. 329. Indic tu^eni foi* wovindinr; v/ith intent to do r^i'ovous bodily haru. Deft, sir ick at ons X with a kriifG, a/id the pr-osecutor intarfex-inr,, cau,c;-.t irs blov/ on Lis aiTii. ""iiLD, deft, would not be- justifiod oyl t'/.e ^.r-ound of' 3elf-d9fonce, iinloas ha appreheridtid los3 of life, I'Dbbai-y, or sex'ious bodily ha-^ia. ' A nan nciy kill to prevent death or vei"]' 3erioiA3 bodily ha.Tn. ""he re must be ari ho]i::-3t belief ti-^it such v/ould result, but the belief neal not be tirjxt of a r.asonab/te n;an. Althougjn the plea of Justification is not concerned with the crin:iinai intent, Deale thirJo the doctrine of mistake of fact coii.es in to help deft '3. justification, ana tliat it is an over refine- ueu'c to distinguish it, fi-ofu other ca^i-^-s on mistake of fact. '3::0^T'£'^ V FiLOPL£, p. £30. The court charj:ed the jury that to justify the- killing there must have been in fact imii-.i- nent danger to deft, HiJLD, -i^hen one without his fault is at-- tacked and th.ere is reasonable £,rouj-id for believing in the existence of iiiuvanerit personal dan£,er, hox.iocide is justifiable althou,';. i: af^erv/ards be proven that -t..e ai^pea'ranc^s were false. 7he charge ,V3.5 therefore v;rong. This cage has dicta that the belief i.iust be reasoriable but tlie quefft ion is not involved in the de.cision. However, a bona fide belief is sufficient. Of coarse a u.a.n must act honestly according to his own mind arid so if he kills through cov/ardice v/ithout thiiiking whether tnere is dariger or not he does not- act honestli-; so one acting negligently does not act honestly, 3T0FF£'l V STATE, p. 33'5r. Deft, laade an assault upon X with an intent to miirder him, Before X had received a^^y in- jury deft, desisted from the conflict and retreated in good faith into a house, but X pursued him, arid deft,, to save his own life, killed him without malice. HELD, ';?7here one v;ho has brougiit on a cortflict wholly withdraws in such a way as to re- move any apprehension from his adversary he is again entitled to the right of self-defence • This is a good case; the deft, honestly withdrew arid it is not like the case where deft, retreated t-o dra\T his adver- sai'y ori arid so get an excuse for killirig him. If the one who provokes the figj-.t is forced to kill duririg the figlit he is crir/.irially liable; but if he horiestly i\ins avmy arid if the other party then follows him up arid coinpels him to kill, that is ariother fight not caused by hixiiself. The retreat must be. such as to shov/ the other party that he has abondoned the fi figiit and if he was r.ierely pressed back it v;ould not be suf- 61 ficicnto The docbrine of i'eti-eat to ''Aio wall co:ncs in eapt-c- iall:' v/hei-i Aie party who kills has pi'ovoheJ. the affray. STiVTi; V DOMiI£LLY, p. S33, Deft, v/as indicted for shoot- ing his father, v/ho was pursuing hiir: \7ith a pitci:forko HELD, • it is a general rule that the party assaulted iriust ret ■.-oat to the wall before he can take life. But if such retreat would put hii:i in Lianifest danger of his life or of great bodily harm he is not required t-o retreat. Deft, here rr.i.';;it havrj e-^r caped safely, without 1-^rm, If there is a safe way of £,etiin,c av/ay deft, cannot kill. Also if it is a question of sufferino 3li(-;-t inconvenience he carinot kill, as if a man stands on the sidewalk arxd tells deft, that if he doii't walk out in the stret he will shoot him. 3o it is a question of d££,ree in this sense arid the point io be decided is whether the justification is sufficient to coridone the injury to the Public in Ijivin^, the citizen killed. This quest iori of retreat is not the same as the one of retreating to the wall v/hen the pariy who finally kills is tlxe one provokin-;, the affray. The doctrine of retreat in this case merely applies to decide v;he/i a kil-inr, is necessary, arJ. ohe question is whether dc.Tz »■ is bound to take soiriC other nieans of avoiding the vlan^or. Perhaps the majority of cases are arainst this one and hold thiat if the attacking, party is making a felonious attact he can be shot ;7hether deft, can safely retreat or not. Beaie, however, thiriks these are bad law , CR£1';:."T0N V COiMI'.iOir."'i:ALTI[, p. 339. Deft, while resisting an unlawful arrest killed deceased, who was attenptin'-^ the ar- rest, n£LD, to resist sucn ari arrest there is ti^e ri^ht only to use such force as appears reasonable to repel the saine, aril in such cases h0i.:0cide is justifiable only when deft„ has reasoriablc gro'urids to believe t^-^at he is in dan£,er of great bodily haiiic This is the ti*ue way of dealirig v/ith an illegal arrest, arid the theory is that it is better for one to secure his rights by an appeal to law than to kill. The reasonableness of deft's action arid not tlie fact as it seemed to him is the rxiie and the question for the jury. The dictujii that it is jus- tifiable to kill if ari attempt is made to carry him out of the coujitry or beyond the pale of the la'jf is but it is a question of degree, STATU V SHEPJ.IAN, p, 341. A v;as assai.ilted by B and the ^ court instructed that the person assaulted must retreat if he cari safely, HELD, w.-iere there is no homocide, an assaulted G2 person may deferid IrJ-mselt' by using obe forua nscessary xor his protection and is liable only for exoeedinr such, law and i; siiow-s tiiat each step may be a reasoriable man would take uj-ider the This case is £,COd taken by deft , such as circunistancoso SUI-.IiMAT/o Self -defence is really of tv/o kinds ^ first, justifiable self -defen/je •.v:,.i.,h is in belialf of the porson cr property, and if deft, has reason to believe ^e is in danger ?.e may kills althourh. it afienvard be proven that he had no reason so to believe „ Second, excusable self-defence , In case of a chance iuedley or i,.u-:ual coriflict, if one is at/ i-a-cked he may retreat to the -.ffall and then may kill if necessary o The reneral principle is that life c;an be taken only to save life or £reat bodily harm, and that escape must be resorted to UTiless suci. is unsafe „ Sx]CTICN FlVEo DEI^iiilCG OF OTHER PERSONS » REGIIIA V ROSE J jJo 343, Deffce kj-llod X uiider th« belief that X ■tiras about to murder hiis mother, HELDj if defto acted without vi'ndictive feeJ.i.nr tov/ard X^, his father, but believ^ed and had reasonable f^roujids to believe his mother's life vftvS in peril and that the fata3. shot was absolutely nece-ssary for the preservation of her life, he ou£^it to be escused, Def t » had two £^rourids of excuse here: first, the defence of a person attacked^ ai-id second^ the prevention o-f a felony, on which ground even a stranger would be .justif i-edc Vfaenever an attack is uade vrtuich is a felonious one, deft<, can do any- thinr, riooessary for its prevention^ and ord-y ^hen the attaisk • is not felonious is lie -oblii-ed to re?Ly on the doctrine of de- fence of a third persorio PEOPLE V COOK, V. 34-5^ Defto v/as convicted of man- slaughter. Deft,, contended that the act was done to prevent the seductiu:i of his sir5ter by the deceased, but the evidence showed only that there was reason to believe the deceased v/as intending to seduce hero FELD. to justify an act in defence of an attempted felony actaal force must be displayed creatirjg a necessicy of iirmediate acti •/• to repel the sameo Conviction aff innedo This case is a .'r.ood illustration that the force used in prevention must only be used v.'hon nec-essary and that a killing must orily take place as a last resort « SUI.UuARYo If one person defends another who is a parent 63 or child it may be considered self-defence » but sunh ji^stifi- catiori is confined to the relation of parent and ehildg and al other persons must rely on the rules applicable to the pre vena- tion of a felony o In Retina v Rose the defto had both these defences o SECTION SiXo DiiFi:KC£ OP PROPilRTYa AIION, p, 34Go A man may assemble aid for personal safe- ty in his o'tni house for his house is his castle,, But if one ■ in threatened that if he goes to a certain place he B::ali be beaten he carinot asseble persons to help him go there in safe- ty » for he rieed not £0o If the parties are both inside the house the saEie prin- ciple applies as if both •'^ere ..ut of doors for the peculiarity of the defence of the house is the protection afforded by ■four walls" J and if this protection is in dancer one may use force to make it secure. The last part of this anonymous case is hardly correct; for it is similar to th.e case of the Salva- tion army - Beatty v Gillbariks, po i05o It is net fair to say in such a case thai deft., is provoking or inviting an attack, for he is probably acting purely on the defensive „ So it is only when a man gathers his friends together' arid goea in such a way as to invite an atiacl? that he cannot go» for in that case he not orxly carinot justify himself on the grourid of self- defence, but he is also coamitting a crime in inviting a rioto COOPER'S CASEs po 317, Deft, was a lodger in the house ^' of X and deceased attempted to enter by force after threaten- ing X, and then thrust a rapier through the Virindov;-, intending to wouiid the defto> whereupon the defto .killed himo H£LD« a lodger as v;eil as the master of a house may kill one who is - maJjing an assault with the intent to kill or harm the inmateso The rule excusing persons v/ho defend a house by killing is /lOt Oil aci'ount of any kindness of the law towards the, house as a :;ousej but because the dv/elling house is the means every ma.n has to protect himse].f and his fcunily; his house is his castle, as it is stated^ ard. the very fact of being deprived of this is to deprive him of safety. Therefore it is oniy when a house protects a man that he can kiH to keep anyone out of it; of course, ho/ever, there may be another j ustif iea?- tion also J such as self -defence or the prevention of a felony^ This defence does not apply where the intruder is already wi withiifi the house arid consequently if he then makes an assault which is not felcriiovts s, deft, cannot killo This proteetiori also orJ.y extends to dwelling houses, that is, dwelling houses in the wide sense of what is used as a perm.anent habitat iori^ 64 and not such as a rooiu taken over ni£;lifc afc a hoteXu So the place must be a dv/elling; house either by Comcion Laisr ased actue lly as such, oi" niay be made such by statutes against burglary- v;hich may constructively make cer-tain places d\7ellin- houseso Ariy one iri^ide the house may protect it, but Eeale does not thirik that th.is protection applies to keeping a person out of any special part of a house, ahen lis is onee in, unless it be in apartment hovises 7/hera fa-i-^ilies have separate suites as their peiTaanenb habitations, OriO is notoi^liced to retreat when his dwelling house is assaua, ted and he may kiJJ. if nee~ essary, V/ILD'S GAS£!> po 54 7c X refused to leave the house of the deft. J and thereupon defto proceeded to use force and gjave X a kick from v/hich he died., hZLD, such force is not justi=- fiabie in revovin,'_ a trespasser and if the deat.. w^s caused- by the kick defto is guilty of homocidOo This case sho'.vs thiat when one gets v/ithin the house iihe same pi-inciple applies as if both M?ere out of doorsj. arii. oiily sucii f ox'ce as is necessary must be used, STATE v PATT£RS0]I, p« 34S . HELD, the sense in which the house has a peculiar iiii...uriity is that it is sacred to the protection of the person arid his family o But an assault on the house can be regarded as ai'i assault on t:ie person orily in case the purpose be injux-y to tr.e persons of ti-^e occupants, and in order to accomplish this the assailant attacks the house a In surh a ease the irimates need not flee from the ho'use but may meet the assailarit at the threshold and may kill if necessary to prevent hini from breaking in. Therefore i§ an assaiilt be made upoii a house with i^itent to do great bodily harm to the irimate^ or if the circumstances are such that one honestly believes that such is the purpose cf the as- sault, he is justified in protecting the house to tha e>:tent • of taking life if necessary. If t.:.era is no danger to the ina-iates, but only d-ariger to the house, there is no rigL-.t to kill in defence of ito But it will not do to eay that; the safety of the irunates are only jeopardized when the assailarit's inteiitions are felonious as their safety may be in darxger by letting him in when his in- tention is to do some act not felonious <> So the rules are . ■ that whenever the safety of the irjmat es would be jeopardized a defence may be made even to killing if necessary; and \7hen- ever felony is attempted, such as burglary, the same rule ap- plies* One of the important points of this case is that it emphasises the fact that life canxiot be taken until it is necessary, C5 C0;.->I.,0;r7i;iiLTF v DOMA^'Ui:, p. 353. Del't, ravQ uoncy :o X oa tl-.e condition thct is sl-.o.Cd be I'ecoived in payii'.Ji'it of a bilLo X accepted it and ilxen i't^pudiated ".hs condition and- deft, seized hi;.i and c'lokcd l.iui until he .••eturnod the ...on^ys r'ilLDj oLe i'acts v;ei'0 as dsTt. believed them to be,, that ^iha money v/as his p:L.'operty if X repadiated the condition; and un-- der such circunistances a rnan uiay defend or rer^ain ;--.is liiOiairen- tarily intei-rupted possession by the use of reasonabit force short of wouridin£. or the employuient of a dangCx'ous v/eapono Sli£>;t force can be used to prevent a ;£;reat many 'things and so in the ii.iuddiate recaption of personal property as in this case. But one cannot go to extrevaes in such cases and so Cqririot kill for such a purpose as the deferice of property,-. If the act cari -coi^.e under the prevention of a felony of course it is different, SUI.HvIATlY, One ...ay use i-easonable force to defe/id his property and also for the iiTijiiddiate recaptiori of it ^ but the defence of property must not endan^^er life, Ari exception is in the case of the dwel.'.inr house as the irurxates are entitled to the protection of its four walls and have a rig^ht to use any force to prevent its being invaded. 7his rale as tc the house is also an exception to the one that requires a retreat to the v;ar.l, but outside of the house, or \Jhen the invader once rets in the ordinary rules of self-defence apply. S£CTIOri SEVEII. IIECr.SolTY. R£G1jTA V E/JuBiiR, p. 356. Deft, was charged with the li- ability to repair -a certain road, but said road had been wash- ed away by a flood, HELD, as all the niate rials with which the road could bo made -had been washed a\7ay by the act of God, deft, is not liable. This is a true case of necessity, Oi'dinarily if there is a duty to keoTp a road in repair a aian cannot excuse himself because an uriusual stonn tears it up. But this ease goes much farther as the storm had put it beyond the deft's, power to repair. There is no question as to a justification here be- cause there is no exercise of will at all arid one cannot be • puTii'shed for soiaethirig done beyond his power or against his will. So Coxiiaionwealth v hrooX's, p. 3C4, where a teamster was blockaded so that he could riot nove, was also a case of real necessity. The justification is these cases is really more ' of a defeiice thaxi an excuse because the act is not the deft'so act, arid so they are different from cases like Regi/ia v Dudley where the act is voluntary, 06 RiiGlHA V DUDL.CY, p, 357'o The defts, and the deceased were adrift on the \\X{y. seaso The v/ere almost -starved and in order to maintain tl.eir ov;n exist'ence the def bs» killed and Ted u];on the deceased, a weak boy„ Ti. is they did in preserva- tion of their ovm lives o FLLD, the act was wilful murder and- the facts are no justif icabionc necessity » to excuse, aiust be equal to self-defence arid the teiv.ptatiori in a case like .t-his is not v/hat the laiv calls necessity » • Cases like this are not cases of real necessity for dsfi, exercises a will, arid if there is a Jiistif ication it must be oii the groju-ids of public policvo In Re£,ina v Dudley the deftsc decided oj-iother should die and killed hii"! by their own .ViOtion arid agair^t his will. If the boy had been so near dead tluit he could not possibly have beeri saved, then it mig^rJ; have been different, as it mi^J-.t liaTe 'o&?.-ii said then that ha was picked out by nature arid he was the orily one who could save the others by dyin^ while they could not possib3-y save hii:i« But in the tsase at hand no single ii'idividuaJ. couJ.d save his life except- by killirir ariother and no one rirhtly had the pov/er to shoose^ But if lots had been oast then the case ' v/ould have been different as there would have been consent a In sitviations like this the parties are reduced to the lai'^ of nature arid they can tha'ow off all law and uiake entirely new lav;, but only for tliose consentin,^: to it; so there is a new jurisdictiori and if they vote to cast lots it would not onl^f be justifiable but le£:aio Beale thiriks if the doinj; of the criminal act does not involve an inTrin^^ernent of private i-i^hts, theri it is mere3.y a quest iori vrhether it is better to be done liride r the ci rs-JXiista?ices and it is a question of the proportion of the necessity arid the life or property saved to the irijury to the Public, Thus iri the ca?e of landing r,QOii.B to p"revent the loss of a ship against a law prohibiting the laridinr -of goods except through ^I'-s custoiVi house, it- is jus*'" tifiable. Like this is the case of Regina v 'J'ray , p, 368, • where it was forbidderi to give a\ray liquor or to sel3. it, arid a n'ian gave it Hway to save life; -no private rights v/ere invol- ved and it v;as surely justifiable, Lut where privaie righis are involved, at least to such ari extent as iri l.ornocide or thefbj Eeale thijLks ordinarily orjS cariTiot shif b his misforturie upori another; thus a starving man cannot legally thrust his misforturie of hunger upon the owrier of bread, arid if he steals he must pay the perialty; but it joiList be remeiiibered that it is riot- the value of the bread lost Ijy which his crime is Vv'eigliedj, arid so it is not a question of property v life; but the question is whether the public se- curity of px'operty in gerieral is to be preferred to life in these cases arid the irijury to the Fablic is the insecurity of property in gerieral. Take the case of a large steamboat iri a 07 narrow chari^-iel v/here the pilot must either run down a small boat containi|?e one person or run his ship ..pon the rocks and kill a h-undredo This is different froa. all the preceeding; cases for here all are in tiie same position and misfortiine- arid soixie must die and it is not a question of thrustin,f, off nisfortujie onto another, for it is iTierely a choice on v.'hom it shall fallo Eeale thirdis there is no doubt in that sass-p as the pilot must act in soma v;ay, arid caririot avert th3 i;iisfor=" tune aitoge.ther . that he must act so as to endanger -the, &ciail« est nuiribero - RESPUELICA V Iv'cCARTY, p, 5G4<, Indictment for treason.o Defte enlisted '.vith the enemy after he had been u-aptured and imprisoned anil continued with them for ten monthso TT5LDj orily the fear of i^iriiediate death and not th^at of an irxforior per- sonal -injury nor of an outrage to property v;ill excuse such • an acto This case mearis that if joining the eneL^vy was the only means of escaping death treason is excused ^ but as soon as ariy other v/ay opened ^ sucli as a possible escape, the excuse ceased This is only ao-iOther application of the principle of necessity in self-defence; there must be a necessity and the way of avoidance taken must be the only ^vas to avoid the criino. GOMIuOrmEALTTT v BROOKS;, Po 3G4, Deft, was charged v/ith violating ari ordinance -^.'hich forbad the stopping of teams in the street for more than a certain t ii^^e ^ v:itiy certain excep- tions as to market men in their stalls-. Def^. o v/3ls delayed by a crovr'd for some t iire arid then occupied a- certain position for less ti:Lan the statutory tL^ivSo HELDj deft, is riot guilty for he d3.d not voluritari-ly suffer his team to stop v-'hiie he was delayed by the cro\>'d» This is a -case cf true riecessity ^niere the act is not, in fact the deft-s.; act, arid so there is really a defence erid not ari excuse 3 Brig James V;ells v U, So.. 7 Cranch, 20; Brig Vviiliam Grey, 1 Paine-, IG: these cases v/ere violations of embargo a-its where deftso \7ere driven out by a- storm„ They were als-o oas&s of real riej-essity and so deftSo v/ere held not guilty, STATE V WRAYj p, 356 „ Indictn-ent for selling spirit- uoiis liquors without licerice contrary to statute ^ A doctor prescrffibed brandy foi- his patient and dire&ted her hiisband to get the same fro0i-deftso who were druggists. The doctor also, directed the defts o to let tlie husband have the brandy v/hiit or ought not to do - Conmonwealth v ErookSo In cases v/here one fror/i fear of death or ^reat bodily harm is obli£;ed to take bxi alternative it is a case of necessity in self-defence propei-ly spea.k:iri£, — Respublica v McCarty. But necesiity newev wil excuse -tl'.e forcing of a iidsf orturie orxto ariother - ?.ei;,ina v Dudley, If, hov/ever, no harm is done to private ri^^.ts sucli ari act may - be justified - State v ^'Ii-ay ^ and if it is a question between saving majiy as compared w'ith a fe\7 there is justification. So also if one is oarked o\it for destruction ard aj'iothe.r caii save himself, he aii^;-;* for tiie sake of savir^ himself accelei*- arate the d-eath of the first. SECTION £1G'-T, COI'.iPULSIOII AIID COl.nJAIID, ' ' ' J^ RilGlNA V CRUTCH LEY',?, 367, Indictment for destroying certain propex'ty. Deft, \7as compelled by a ::i0b to join its nuhiber arid take part -in t].e destrviction,- but he rari auay at the first opportunity* HIiLDj, not ruilty. Beale sees no possibility in a case where life is invol- ved, either under the excuse of riccessity or compulsion, of • allov/inj;, the life of an irirxocent party to be taken. Courts have held that some criiiies can be excused by compulsion, but that as heavy a crime as murd-er cariTiOt be excused, but tjiey have not dravm the exact line„ The policy of allowinc the plea of compulsion is much different from that in the plea of necessity, because in the fori.ier cases there is ari other hunnn bein£; concerned, a responsible party cari be dealt with criminally, and so ti-.e stepping out of deft, still leaves a ' crinie arid a criminal o PAib in cases of necessity, if the d&tl, is excused, there is no one criminally responsible. In most cases under the excuse of compulsion fear of death is necessi^ ary to excuse, but in sniall crimes, like Ci'utchley's case, fear of death is probably- not necessary, but fear of severe bodily harm is sufficient, Tlov/ever, the L>ere fear of dannge to property is never ari excuse for a crij.,e, U. S. V JONES, p. 36S, Indictment for feloniously en- terine a ship and assault ir^g the captain. Deft, was aj-x in- G9 avj X fericr cJT.t'iv^ei' oi-i a privateei* d/aly cOiYi-iissijneJ. ami a.-jted un- der t:-:e -.iouiiand of his superioi-, HilLD, the pai-bicsipa'.ion of an in:?ericr off icex' in an aci v/.-ic;.'. l.e knov/s c>' ouLht to kriov is iile£^ai ^viiLiL not be excused.^ by ti.e order of his Bupei-ioro The o.-'der of a superior may be ari excuse if the iriferior has no reason to suppose the order is not le^al arid in that case the inlerior is di'opi^ed out arid the s'uperioi^ alone is held; if not both are heldo In a civil aiiition the ille-al ac- tion of a superior is no excuse in ariy ease, but criminally it is a justification if the inferior reasoriably believed the order Ie£,a'llo SECTIOII iUIIEo CUSTOI-. ' RUCilNA- V REE'Df p, 3C9. Indicti.jent for irid.ecent expo~ sure o Deftso bathed in tlie Sea arid passed back ani fort-h over a path which was a pleasant v/ali& arui much used by j.adieso It had been cua ternary to bathe ti.ere for half a centui'y arid no previous cox.iplaint hai been made » HELD, custom is no excuse ani usare., hov/ever lonf_, continued, will not £;ive a ri(-l::t to V i lat e pub 1 i '.j dec enc y » This is a plain case arid eusto:.i can riev^ei" excuse , althoug iri tL.e past such acts have not been pu/iishedo CHAPTEI? -^ZU, -PA7ri£.3 111 CRllME, si:cTion o:iE, ageiicy, COra\iON'V£ALTIT v HADLEY, p. 372 « Indictment ur^de r a statute for seliinc liquor without a licence. Deft, offered to prove that he v;as oi-ily the hired a£,ent actinr under the control -of his employer,, who owned the premises v/here the sale uas made c HELD, such evidence is not an excuse. The oooiriand of a master wi^ll afford no excuse to the sei-vant in a criminal aetiori because tl-ie sei'vant is bound to obey only those eornmarii which are lawfulj,' and tiie acts of ari agent under ^enei'ai auth- ority are his owno A servant taking, part with :.is master in a criminal act can be punished arjd the order of a Piaster is rio defence. So even if the iraster here technically passed the title to the liquor^ yet if tl-^ servant took any part in helping in the sale he is punishable, arsd the test is whether he is taking a substantial part in the salOo Th.e selling is not merely the passing of the title, as defts. contended, as if ^he employer was present he would pass the title but the deft, would still 70 be taliin,-, ari ac'^ive pa.'b in the sale. It lairhb be that if the servant simply de live L-ed the £0cxis, that in certain cases he coia.d not be said to be takin:, an active part. In Gi'iu-Anal Law the one tf.io does the ac't is the principle and the eiuployer if absent, is the accessory^ In Civil Law the parties are just turned around and the eiaployer is th.e principal ard. t.h^ one who does the act is the a£,ent , PEOPLE V PAPJiS, po 37G« Indictrjent for sGilinc liquors to persorjs in the h^abit of be-comin^, intoxicatedo The eale^ was Xiiade by tlie clerk of deft,, viithout his knowledge, -butt the statute prohibited sales by clerks as v;ell as i-n person^ HELD, the statute only covers such acts as deft, concurred in and 'the cri^iinal responsibility must fall on the actual wron^ doero There is no doubt tiiat if the employer knows his clerks are in tlie ha-bit of breaking: tlie law, he is guilty if he does not stop them 8 There is also no doubt tl^.at if he h^s no rea- son to believe the law will -be broken, or if he gives orders against it, he is not guilt yo But there is a difficulty vrhen the employer has reason to believe siida sales "erill be made ^ajnd does not stop it » but goes away to avoid tl^e responsibiiityo Then Eeale- thiriks the employer ou£}it to be held on account of negligence. There is mixch coriflict of authority as to ho^J far tO' go in hold i rig employers for the criminal acts of their clei'kso 'SUlvil.IARYo VolT-iTitary agency is never ari excuse for ti©3 agent 9 The Coxrjnon Lav/ principle that the employer is resprni" Bible for tlie acts of his agent does not apply in Griininal Law, and the principS.^ is responsible crii^iirially orily for such acts as he expressly allov/s or fails to prevent when he has reason to suspect that they will be comnitted, SECTION TWOo IN1J0C£I>JT AGENTS., MEviORANDUIu , p^ 377, This is simply to the effect tiiat where an irjjriocent party is drawn into a criiiE he is to be dropped out of the chain altogether and treated just as if tlie guilty pai'ty had used a dead agency as his instiniment instead<, The nearest accountable one to the commission of the crime is tlae principal; there must be a px'incipal to every ci'-im^ arjd. tJa accountable one one nearest is the principal, althougl-^-on ac-- couTit of imioeent agents he i.iay be a long way off from the actual comuission of tlie act o REGINA V MITCPIELL, p, 37So Deft,, with dntent bo kill X, gave poison to Y to give to X as a medecine. Y did not ad- minister the sans, but without her knowledge, a child gave X • 71 o^ 'i-Qh Ji-IJ the poison, causing doabho H£LD> if the deft, rave the poison to Y^with the intent to kill X arid if aTterwards it T/as ai.taiiri- ietered by arx uriconscious a^ent , deft,- is guilty of nurdero Cases like this are decided on the pi-inciple of- causa- tion, and there is ri.o diff eren^ce in ho3jlirc the' deft„ for conr sequences in CriminLav; than in ariv othep branch » So if the chain of consequences is not broken deft^' is £;uilty, no matter hovi the poison r,ot to the person intended-, Eeale thinJ^s the ■ chain of causation v/as no', broken in this case , b^At it- is a question of fact in every case whether the deft's. act causee the injuryc REGi:iA 7 EAillliHJ, r>. 379, Indictaent for feloniously rnaki-nc a die Deft, applied to X, a die j:iaker, to niake two dies, X connivjjiicated with the authorities who directed him to execute the order, HELD, X v;as ari irinocont agent T/-ithout a guilty knov; ledge, I.Iak ing the die was criuiinal but in this case X is excused arid the deft-, is therefore tl:e neai'est guilty party and the principal. Admitting that X v/as innocent in acting under the orders of the officials, deft, is the principal, for the lav: does not drop out the intervening parties because tliey ai^e ignorqnt but because they are innocent, Every cri;..e luust have a principal, who is the nearest purashable one, not the nearest one 1-iaving- knowledge of the act. We laust assxame X had the legal ri£jit under the direction of tli e officials to do as he did; and also that there was a crime inspite 'Of that authorization, for it is not like the case where deft, is induced by the authori- u le s ' SUI,I!.IARYc Every criiiie must have a principal and if one acts through innocent agents the nearest guilty one is the principal, Wliere irinocent agents ca^e in it is question of legal cavise sjid v/hether the chain of causation is broken off - Regina v Mitchell, One may he an inriocent agent v/ith knowl- edge if his knowledge is not a guilty knovT7i.edge , arud one majf be authorised to take part in ai-i act in which others are criminally responsible - Regina v Bainrionr SEGTIOM THREE, JOINT PRINCIPALS, REGlNx\ V EINGLEY, p, oGl, Indictment for forge I'v, B and D took a house for the purpose of forging notes, X prin- ted the notes at his place of business and they v;ere then ta- ken to this house and completed ^ E arid D performing their re- 72 i^ spective -paints, while X was nob pi-esent v/hen the notes uere coiiipletedo HELD, all the parties ai-e principals as each acted in pursuance of the conmon plan and each performed so.rie. part in the -forge ry^ although X was not present at the time of comr- pletiono Ariyone who has a necessary part- in doinr, a crime is a principal if he is one of the actors « /jti accessory is not an actor in the crime itself » SECTION POUR a PRINCIPALS III THE 2nd D£C-REE„ COI.iLIONV/EALTH v lOIAPP » Po 3S3o DSi't , was indicted for murder as a principal ar^d the indictmant a-lso alleged that X was a principal, but had comiritted suicide o The ev-id-erice showed ti'vat the iuurder was cccmitted by x, but deft, was in the street about 300 feet distant, aidirig arid abbettingo IIELD5 a principal in the second degree must be present aiding abetting;; but if not actually present ^ he is in a position, he is in a position to render aid and has taken his position by - agreement and v/ith intent to help carry out the nurder, he is in law consti'uctively present. This ease states the law very well as to principals in the secorjd degree; they must be present adding arid abetting, but are not concerned as actors in tliC crinie; they v/ere orig- inally called, acce-ssories at the f act » 1 Cs and Ker», 210, If a dozen people go out to have a duel and one of the combatants is killed all of them, oven the se- cond od!* the man who is killed, are principals in the second- ■ degree, 2 C, arid Pe, 234 - All the people present are spectators at a prize figiat are also .pi'iTicipals in tlie second degi'ee is one of the combatants is killedo BPJ]ESE v STATE , p, 336 „ Deft, in accordance with an ' agreement v/ith others to conuit burglary decoyed the owner away frcsii his premises to a place a mile distant arid de-tained him there while the burglary vras conmittedo HELD,, de f t ^ Tas cons-tructively present and so a principal in the second de°* greeo If one contributes to the crime )the test to determine whether he is a principal,, or accessory is v;hether he is so situated as' to make his personal help in any degree available if required, • Beale thinks the defto here 7,ras a joint principal in the first degree arjd actually taking part in it, as in Banrien's • case , for in this class of cases if he is not held as ac- tually taking part it is stretching the point to hold him • 75 const inactively pi-esent; he ou£;ht either to be held a-s a joint principal in the fi-rst Je&ree or merely as accessory, 13 llevo, 386 Deft„ made a sigrial bonfire several milas away as a sicrial for the robbing, of the stage-coaoi.o H£LDj he was a principal degree arid constinictively presents Beale thinJ^s here also he yras eithe-r a joint principal in the first degree or 'siiuply 'an accessory. 2 Co and P„, 427<, Passing a coxiTiterf ei-t shilling, having at the sai..e oii^.e other money in the dsft^Sc possession, was made a particular crL.ie„ X and Y went together to pass a couri-ter- feit, X having a covu-iterfeit shiilirig alone, arid Y having a good shillings and X went into a sl^.op arid passed the bad aoney v/hile S" stayed outside. It vms held that the particular crime of passirig a bad shilling with good ones in possession v.'as coauiiittedo Eeale says this decision must be put on the ground that they were joint principals in the first dsgreCc SiCTIOIT PIV£. ACCESSORIES, An accessory is one who aids arid abets a cringe j but is so far absent at the time as riot to be ablfi to encourage the priricipal by ariy hope of uaiiediate assistance. The duty which a vife o'r/es to her ^.usband is such as not to make her an ac- cessory by any receppt giveri her htisbarid; but if she be guilty of procuririg her husband to coLiiiit the crime it seems to make her an accessory before the fact in the sai:*e manner as if she had been sole, ]To other relation besides that of the duty of a wife to her husband will exempt the receiver of a felon fran being ari accessory to the felony, not everi the duty of a hus- barJ. to the wife, REGIIIA V CLAYTOil, p „ 3G8, Joint- iridictment for attemp- ting to set fire to a house <> Tae deft, x was not present at • the time th^e act v;as committed, but he ]aie»7 beforeh^and tl~^t th fire was to ta.ke place „ HELD, all those who take part in mis- demeariors or in treasoris are principalss arjd it is not neces-' sary to prove their preserice at the time of tl^e crime o So as this is- a misdemeanor,- if X couriciHed and encouraged the oth- er deft 3 , he is guilty. Accessories, properly speaking, orily exist iri feionies. In misdemeariors and in treasons all those who liave anythirig to do with the act are principals, in one ori accourit of the smallness of th-e crime, iri the otiier ori aecourit of the intensi ty of the criL-iCo The importarxce of the distinction is seen in the -pleaiing; in felordes the iridictment states whether the defto is ir^dicted as principal or accessory, while in misde- meariors dj2.ft, may prepare a deferice that he was not aiding arxi 74 X abettinr aiiu. ab tLe trial may find himself charg^ed as ari ac- tor, ?v£GlNA V BROVni, p. 3G9. In die tine nt for murder, Deft'so wife v^as- present and slie was indicted as an accessory before the facto I'ELD, ari accessory before the fact must be absent at the tiiu£ tlie crinie is coiru.itoed, and the act must be done in consequence of seme covuicil Oi'* procurex.ierit of his; so xt anything the v/ife was a priiicipalo COl.II.:OtIYf£;ALTi: v PI'ILLIPS, Po 3G9, Indictment as an ac- cessory befoi^e- the f ac b in burr,lar. , ?i.e priricipal in the crime had died^ H£LD, an accessory carxriot be put on trial except by- his own consent until after the coriviction of the principalo So if there is no principal there can be no acces- sory and innocence is presuiaed till £,uilt is sl.ov/n. Art accessory by Cormon Lav; carinot be convicted uriless a principal is convicted, arid so if the principal be pardoned the accessory cannot be p;.iriished<, This is -the great practical distinction between priricipal arJ. accessory, STARIh V P£OPL£. p. 390 o Deft, was indicted as an at;*- cessory before the- fact to t-.e crii..e of bur^^lar:/' coi.i^dtted b: four principals, Orily one principal had been convictedo HiCLD, an accessory may be tried and convicted v/hen one olily of several principals has been convicted, but he must be con- victed as accessory to that principal. • ' ' The select ioris from the sto.tutes of Mass o arjd No- Yo on p, 391 shov; t..e differerxt lines legislation has taken^ In IJass, accessories stiH remain, -but- they may be puriished irre^ spective of the principal. In IT, Y, accessories before tiie fact I-xive beej-i abolisl'.ed and are treated as principals; acces- sories after the fact still remain, but they ..ay be punsshed • irrespective of the principal, SUI.lIARYo All those who take part in a crime as actors are principals - Re&iria v Zin-ley. ?onne-rl those who did not take pai-'t, but assisted, were access .'ries either before, at, or after the fact. At present all those wLo act at the tinie the criix^i is committed ai-*e principles, but the other two clas- ses of accessories remain^ Principals are of tv/o degrees - 1, those who take part in the act; 2, tl^ose present vfho aid arid abett. Actual presence is not always necessary if at the tiiiie ti.ey v/ero actually reridering aid seme where near - Ereese v State, In treason arid in misdemeanors all concerried are principals arid accessories orily exist in felony - Regina v Clayton, An accessory before the fact is one who aids and 75 abetts another to comiuit a cringe and at the time of the crime takes no part, A/i accessory after the. fact is one v;ho gives any assistance to a felon to escape after the crime, but a wife carinot be -an accessory after the fact when her husband is the criiainal. The distinction bet'^een accessory before the fact and the principal is nov/ £,enerally aboli^ied by statutCo SECTION SlXc ACTS DOIIE 111 PU?.SUAMG£ OF A COMI;lO:i DESIGN. ASHTON'S CAS£, p. 392., Wl.ere several persons are en^&^ g,ed in a criWiO ariy miscliief done by one in pursuance 'Of the • urilavful act is corisider'ed in lav; as coiaiuitted by al3,, RUL0P7 V PEOPLE, po 392, The deft» ijas one of 3 persona burglariously entered the premises on which the decease^! was killed by one of theui in pursuance of the intent of alio Deft-, either fired the shot or v/as present aidinr, and abet— ting... HELD, all w..o are present at the time of coijmitting -an offence are principals althoufj.! one only acts, provided a31' are engaged in a comnon design of \7hiGh the offence is parto If there is a general resolufciori against all opposers whieh may be infierred fror;i the circumstarujesj all those present when the criirie is conriiitted are equally guilty o This case decides tliat wheri ari act is done iri pursuance of a comaion design vri.ich act miglit have been comtemplated fran the design, all those present are guilty as principals; of course those not actually doing the act are principals in the 2nd degree e STATE V ALLEN, p. 394, Deft, and one X plariried an es- cape froiii prison and detertnined to kill anyone opposirig thenio They were discovered by S, who in tryijg to prevent their es- cape v/as killed by Xo Prior to the homocide the deft, with- - out any declaration of his intention, but with the knowledge' of X, returned to his cell^ X supposing he was aTter a weapon* HELD, if the deft. v;ithdrew v/ith the intention of notifying X with such withdrawal, and if he did such acts as should have been effectual for that pui'pose, but v;hich did not produce the effect intended upon the mirai of X such facts are proper for the consideration of the jury^ Bea-le does not thirds this case goes far enough and that the defto is st-ill guilty if x did not undei-stand hii:i , al- tliough the deft,' did what a reasonable man woiild have known was a withdrawals This is against the argument but Beale thiriks it is the true ground; for as X started his confederate acting for him he should have prevented him from acting so any «ifli.';Tr7 ioncer by absolutely msikin^^ YMa uruierstarui Lis c:.an£ei posi- tion, -Suppose A, intending to kill L, sends '.-La an inTerrial LiacLine, Laiei* A repents and sends 2 a letier warning him, and the jury find that a reasonable laan \70uld have opined the 'letter first; but E frorii curiosity operis the xnachine 'irst ard. is killed. There is no doubt that A is guilty. Suppose A £,ives B poison and later repents arid £.ives hin: an emeiic whidi would ordinarily oxfset the poison; -but t..e eiueiic falls to work arid E dies. A is surely ruilty. These cases sh>^ the- pririciple apon w.-ich Siaie v Allen should have been dJcided* STA"'ii; V LUCAS, p, Z'JG. Defts. to assist in the robbery of a mill carried X to a place near the i.iill arid waited for hiiVi to return, Duririr, the c-oi-aiiission of the offerice X robbed a watchxuiari of a suia of noney. The judfe,e ciiarced th^t if defts with the kriowled^e of the iriterit of their associates to commit eit..er crixiie acted as thoy did, they were guilty of ti-;e rob- bery -of the watclaTian. H£LD, the instruct i oris were wronr as • defts, could orJLy be liable as accessories to the crimes they had abetted, and to rio others UTiless they a^^reed to slare vn the proceeds of ariy robberies t..e ir associates iai;>*t conmit, A ijaii. is orily accessory to crinies he abetts or to those w:.ich uii£j-.t reasorjably be contemplated in the coiiiission of- t.-,oso he aids arid he is not liable for anotl^-r distinct crLns coi^itxiitted without his kriowled^e and authority, T:,e test" is v/he the r the act ou{>;t to be corrsidered as coritemplated in tlife pursuarice of the orif^iral criuie, Sin.O'viARy. If the act coiiiiait ted is a natural part of and £,i-ows out of ih-e act all ai'o erif^a£,ed iii, all are ^ iable - Ruloff V People, Also if several a£,ree to coiijuit a crime in a particular v;ay each is resporisible for acts liorie in the way aj^reed uporx, but riot for acts done iri ariot.xer indeperident criiue - State v Lucas, The orie crime must ^i-ow naturally out of arid be a natural result of the other for the de:^, to be liable. V.T-.ere one intends to withdraw from ari iritended criiae. v/hich-is carried out by the others, he is not liable if he has withdrawn to the kr»owledre of his corif ederates - State v Allen. CHAPTER J:Li:V£N, JURISDICTIOII OVi:R OFFENCES. SECTICII OlIE. LOCALITY OF OFFENCES. U, S, V DAVIS, p. 598, Deft, while on an American ship shot a man on the deck of a foreicri vessel, which was under 77 tlie a cluiov/le deed. jarisJ.iction of a foreig^n £,overnment, HELD, ■t:-.e offence . appenej. v/Lere the shot took effect- and the juris- diction of it beion£,s to the fcreie^n £,ovarr;inGnt o 13 Cox Co Co - dafto picksd a j,.-an. up on an JSnclish vessel and threv; hiiix into ihe Sea, 1^ was held the. crime was coamit- ted on board the vessel., and tl.e place v/her-e- the foi^ce is ap-- plied is always where the- crime is coi.iiiitted. So the actual- force deft., broui>it to bear ori the body was applied on board the vessel, althouf^h he used the water as qji instrument in his criivxec So if deft., reiaoved a plarJs: arid lets a aari fall tliroug deft, applies the force of £^ravitation at the tiine when the man drops , '~ ' The only case Eeale kno'Js of a^airjist this view is 11 Cox C« C.' 193, where a Gannarj. vessel ran into an ilri^Msli vessel and a man -on board the English -vessel was drownedo The coiirt heU th^t it was a case of negligence and that -the crima was com- mitted- \7he re the ij£i£;).i£,ence occurred, that is on the German- vess-elo' Eeale thiriks this position is untenable o In Uo-So' V 'Davis de^ft., coulj. have been iudLcted for an attempt on tiie Uo So vessels Tha only question is whether the attempt was merged in the hcmocide, but as there were ^ separate jur- isdictionSj there was probably a crime in oacho STATE V iJTYCKO??, p.. 309 ., Beftc was -indict e-d in N» J, for Larceny arid for receiving stolen good.s » Defto procured X to go int-o N, Jo- and steal the articles arid deliver "biiem to hii:. in M„ Y, Deft <, vras in IJ, Ye during the whole ti me o HELD, the deft, -J not being actually present or const rue ti-v^li present in IT, J..;, was not a principal but an accessory before t-r.e -facto His offence therefore ^as- entirely coirraittred in lla Yc arid he eara-iot be tried in rh Joj because a crime must be tried iri the place v^ciore it is cojrii-iit ted,, Vfr^ere ari irmocont agent is eriiployed the law implies a corj^tructive presence from the i-ieoessit^.'' of tiie case , or there Virould be a crime ard. t£) priricipalo At Cooimon Law if a man in one state procured a. cririie to be done in arjother, he could not be puriished everi as ari accessory in the foinier, be- caiise to convict sn accessory there must 'be a principal, and • there is rio principal in tl^e former state ^ S'O at Coirmon Lasi the accessory wouJd. get off free in this case ^ But by stat- utes ma;^ irig the accessories puriishable irrespective of the prirtcipal^ he cari be punishad in tiio state where he acts<, Be ale thirikG it a 3£o proper that a statute could make him punishable where the piTin'^-ipa], actS; as he ca/i, on principle, be puj-iished there -whe.ri'a g-ailty agent acts for hiiii as princi- pal as wheri ari innocerit agent acts; because- by procuring an • act to be dnne in anotiier stat.e, he is coranitting an offence against the citi.'zens (^f that state and must be assumed to be 78 aial:in,^ l.iias^slf a^ueriable to t\eii* Zav/s . STA'^x: V 'GLSSi:;"^? , F« 403, Ij-idictiusnt fouj-.d in .'.ilriri,, c^.axV^injL defi, '.Yitl. coi^ii-iiitinc .uurdei' b-y iriflic-in^ a -./ound upon":: in I.iinn, of v/:.icl. l.e died in V/is, ;:i;LD, the oTfence ta]5CG place uiiei'e il.e act is done, and tl:e act jas go j.dtted in i.iirino Tl.e deft, does Jot do ariy oil.ei" act ai'tcx-' he sii'ikes X, even ihcu,>. X dies. So ir A shoots I! arid af^er-yards 3 diear^ A does not do ari^i-iri;^ nOi'e ai'ter .:e puts ohe b'ollei inio Bo A is x'esponsible fo^* ihe deaih, but- >:,.e criue is cc.i.iitted ViTl.en arid './hei'e t .e i*oi'ce is applied. Li:iDShY V S"'ATi:, p. 40 , Indictment foi- publis-.inr a-s ii'ue and (^enaine a for^^ed deed. Tlie fo^-^ini. v;as dene inl.lo., bui ihe ci'ine was conixiitted in Ohio t -i-our,'; defi's- partner and 2 innocent a^^^ts; that is the partner sent tlie deeds to aii imiocei-it ai,ent in Or.io'.Tho publis-hed tiieiuin seilin;:^ the iando Deft, was riot in Ohio at all* r£LD, t:.:© criirfi \''as coaruiited ii-x Ohio as the deeds \/ei'e pubiisl;ed ti.e i-e , and,- there beirj£, ari imiocent a^enc, it \7as ti\e saiue as if deft « v/as in O..io hi-xself , The extracts froiu tLe statutes of I.ass. and II, Y«j p, 405 show the i.iethod in v/'.. id. these cases have been dealt uith. The i-.iass. siatui^e i^akes an accessory punishable T/herever he ' does his act if the principle crii^.e is coi.k-ii^> tad in tae statSe This is cP oJ- i^-'"'' because a Ci*ii.->e is theri coi.i..iitted ar^airosi a ci:isen of tl^e state. The II. Y. statute punis'hes accessories also v/here^er the principle cri:.ie is cci.i.a tted. ""..eso statute are ca.ii.*ori, SUI.n.lA'^Y, The locality of an offence is where the a^t is done whicl~. is injj.rious to the Public. In the case of mur- der arid criiifis involving personal injui'y, the criire is conait- ted in the place where ti^e force vrfaicl'-. produces the result is applied. In the case of ari attex^xpt and failure, ti:e attempt is indictable v;herever tl.e actor is at t-:e tLie; if the act is coa^pleted it is a question whether the atieiapt is nerr^ed ac- cordin{, io the csricral rule, thai is vThere ti.e atter^pi is laade in one J Lirisdiction ard tl^e coiupleted act in another, Accordpr in£, to the old law, when tlie principal acted in one state and> the acces'sory in another, the accessory could not be punished in either, T...is is now changed by statute so thiit at present a state can punish an accessoi'y to a criciO cor.iriitted v/itliin its borders, although the accessory was all the tiave in ajrio- ther state, 79 Si:GTlCN TWO. 5TA'"UT01Y JU''.lSDlC'"10n. STATi: V K:iirT?''T,p. 40G, Iridic ^i.-ent for* passing couTita-r- feib bills of IJ, C« in Va, 7 .e iridic iuent ^jas di-*a\vn in II, C.- upon a siaiute subjectinf^ sucl. counierraiu&i-s -to the same peria-.ties as if the criuie was co.ui.ii-ed in IT. C. T'ELD, tiiis Btai:e carinot declare that an aco done by a citizen of ariother state in t-hat state alone shall be criininal arid puriished in this state. It woiiid have beeri different if the coun'iex'fei ; bills i^d been serh acx-*oss the bordex- arid t..e le!^islatui*e had r.iadfi suc- ti-ansuiss ion a ci'L.ie; fo-* t'.xxt -.vould be an offence dire-ct ac^ainst tl.e citizeris of IT. C. arid so v;it_:iri its jiix-isdiction, STATjG V CART£'^, p. 407. Deft. .;hile iri IT. Y, £,ava X sevei.*al xiiOi'tal bi*uises of \vhich ho died iri N. J. De-f i.- ./as a ciiizert of IT, Y. , bu'; h.is indi ctiuent ^^as dravm irx IT. J, }'£LD, N. Y. has ju^'isdict ion of this case arid riot IT. J, as ti-e deft, did riothxri;'_ in II. J, arid so coi.ir.it ^ed rio cri^ne there. COI.]I.iOin;£AL?'' V licCLOOII, p. 409. Defis-. '.vei-e convicted of Ciarislaix^^ite-* of a 'X^ei'sori who died iri iiass. fit>^. inj -U'ies iriflicted b^ the deft, Defts. iriflicted t'.e irijury on a Bi'ittish vessel ori tlie Li.j^h seas, arxd one of ':he defts,, was a citize/i of l.laine, arid the ot .er a 3i'i':iis- subject. Tl-iey ■wei'e- iridicted uriJe r a statute p.-ovidirc that ix* a maxi dies in Mass, fro... ..iCi'tal wovj-ids iriflicted v/itl.in or vitl. out tliS state, ihe person inflictinr^ vhe wouj'ids i.iay be i.ndi cted vrhare the ...ari dies. hxILD, it is v/itr.iri the po'./er of t.:e state to i.ak e such a statute. The persori v/rio urilawfully sets t ^e mearis of deatc. iri u.otion, v;het .er tlJ.'Ou^^ ari irinocent a^ent or on accourit of irijuries he i.nflic-s hL..self, is the {^.uilt^ ca'ose of t'-.e deatl. at the tii.ie arid place vji.ere liis act produces its fatal result; so he aay be zl.ei-e tried and pimis-.ed by statute i^ riot by Cor/niori La.v , It is settled t;:at a state has no: t .e po'.rer to puriish ari act dorie outside of its jurisdiction urh-e-ss done by its o'iJ'ri citizerv?,arid it iaus t be ri-^anted t:..at Liass . can orily px-iish sQiiiethiri^ d-one in Llass . ; st the quest iori is vhetl.er any act is done in I.iass. by tlie i.iurderer wheri the i.-iUrdered mari dies. If he does ar^'thiri^, it is the causing, of the death., but marder is causing death by tiie iriflictiori of physical harm; arid so UTiless tl.e deft, iriflicts phys ical luiiT.-i iriihass,, he cannot coLu.at iJiurder there. Of course it ai£;.t be made a criue by statute to per...it a Wounded nan to co^L-ie. into a stat-e and die; Lu that case the effec: would be in hass , , for deft, would 30 1.1 4- be the cause of having a v^oundeu. mcxi in Mass,,* but that is not what is called mui'dei" and the statute cannot make it murder unle-ss it changes the dcf-inition, Eeaia does not think the deft, did any act in Masso," 'if there was ariy act it was^leav- in g the bullet in the body; but that is not murder, as murder is the placing of the bullet in the body, arid wrongful act is not a continuous one but a single act at the time. the hann ia iriflictedo Of course ari indictment ce.xifiot be framed imme- diately on accourit of some future necessary effects, but the acts is tiie same although punislied differently according to its effect; a man is ly-^^iisned for his act arid not for the conr- sequences of his act, althougii the p"uriisiiment varies according to the consequences, kt Gomiuon Lav/ there is no doubt that the crime iw committed where the biov/ is inTiicted and the ques- tion only becomes doubtful when the Common Law rule is changed by statute; so it is important to decide v/hether there is ano- ther act done by the murdex^er at the place where his victim ■ dies, in order to ascertain if the legisla-ture has the const'i- tutional pow er to punish the murder the re c, In N. J, and Me^, such a statute has been held uncoTistitutional, while in Mass , and Mich, the other rule prevails. CHAPTER TVJELVE. CRII'.IES ASAIIIST THE PERSOH. SECTION TWO. THE ACT 0? PERSONAL IITJURY, CASTELL V BAI.1BRIDGE and CORE>ET , p, 420. The appel- lant's husband was a prisoner under the custody of deft,, who placed hiiii in the vitualing house of Corbet where X was sick with the small pox, HELD, if Castell was carried to Corbet's house ard detained against his v/ill, deft, knowing of the smallpox ca-se arii that Castell feared it arid Iiad not had it, and if deft, refused to -remove him so that he^ became ill ard. died from smallpox, deft, is guilty of murder. If a man knov;-ing he has mallpox enters into conversation with another person it is a criminal act because he is at least recklessly negligeiito So he is guilty of physical vi'O- lence and not simply of a misdemeanor against public health, • If he intentionally comiiunicate the desease there is no doubt about the case and it must be reckless criminal- negligence to go out on the street with an infecti-oj^is desease,' The only thing against tli is view is Hale's stateme-nt on p. 419,- and Beale kriows of no case agreeing v/ith Hale, Where -deft, puts a prisorer into an irifected cell arid he dies, deft, has been 81 held guilty and Eeale thiriks the case of personal infection is even stron£,ei', REX V Mc DA]II£LS, p. 421. Deft, and 3 others, with a viev/ to obtain a re?/ rd, falsely accused X of hi-ehway rotobery, who on their evidence was convicted arid execut-ed, Defts.. were then irxdictod for and convicted of murder, Jud^eaient was respited because -of doubt as to whether the indictment would lie and the. daits, wsre subsequently discharged. This was surely aurder. The result of the case did not go on the ground that it v;as not r-urder, but on a political reason, probably because tlie co'urt did not want io discourage infoiTr.ers , RfiGINA V POCOCK, p« 423o Defts. were trustee',?? of a public'rcad arid failed to raaJ^e contracts to keep it in repaii", X was thrown out of his cart while- driving along said road arii died from the injuries received. HELD, defts, onxii-ssion was not the direct cause of the death, and to hoM deft« guilty the duty nrast be sud". a one tmt the ordinary conse- quence of neglecting it would be di^ath. This decision is ri^ht because the consequence is too remote from deft's act, arii it is not decided that this kind of ari act is tiqvqt crimirjai; it is simply a question of re- moteness. The reason \7hy deft's act here v/as too remot-e was because it was not their dut;- personally to repair the road, but merely to vote repairs and conti'act for tiiern. If the deft, hei-e had been a suparintendant in dire<;t charge of the repairs the result inigi-it have been different, K£GI1IA v GPuCEirv/OOD, -p. 424.. Indictment for murder arcL rape oxi a child under ten. Deft, had connection wi tl~. the chil'd arid coi.iia3.mi cat ed t-o her a venerial disease, of which she died, HELD, if the deft, had connection with the child and she died from tl~.e effects of the rape, that, would co-nstitute such malice as would justify a conviction for murder. Thex'e is no difficvilty- in finding the necessary intent for a homocide here as deft, was engaged in a crirrie of vio- lence. ThSi-e is al3o no difficulty about finding the criminal act as the deffc„' caiiiivuu-iicated the disease, although he may not have intended it. It is not true that the jury siiall have the power to carry over iralice, as tiie. judge puts it, for it is carried over by law fro2ii the facts if the injury is dona in tlie course of rape, REGINA V COMDE, p. 424. Indictment for wili'ia murder, 82 The deceased died from starvation, HELD, if the de-ftso vril- fully v/itheld food eaid so caused death it is murder. li"-the/y negligently but not wilfully v/itheld food it is niaji33>auglit-er. This is cood lav/o If defts, witheld food v/hile they had it in their pouer to give it to tlie childj and if it \Ta5 their duty to provide for the child, they are guilty of hoxaocide if this caused tha Jeatho - ■ "JIGIMA V TO\V£RS, p„ 4-25 « Deft, having a greivance a*- gainst a wonianj sezzed her by the hair; her screaining fri^t- ened sil ird'ant v/Lich she was liolding arid the infant became black in the face frou frif^it and continued to be sick till the day of its deaths F£LD, if under the circ'ar;jstances the ^nry are convinced that the death v/as the' direct result, of dert's- act ^ he is guilty of mansla'j.^hter, Verd.ict, not gruiltyo If the deat-h was the proxitiate consequence of the deft's, act lia is £,i;ilty^ That is, harming a person by f rigl-^tenirig hiiu is one of the ways of cohiiiitting a crjine by physical vio- lence o- Note po 426 - the case in this note lays it dovrn as a general I'ule that physical violence is necessary for a ci^ime and that a man caiinot be criminally res-ponsible for the death of arothr on account of any iiiental shock. In the actual case there is no doubt tliat deft » v.^as ?j.ot guilty because he did not prox- imately cause the v/oman's heart to break or da any a-.;t which he ou^it, to have known ^it to have anticipated that his act would hjave on his wif e o HOMOGIDE is the act of kill- ing a huiiian be inr by the application cf force to the body. The speakirjLg of v/ords was not the act of homocide, but the act of physical violej-ice v;as t^^e fatal application of cold to the body; arid so if deft, is responsible for tiiat he is responsi- ble for the homocidCc The only wqy to se.ttle these questions is to select the force whid; causes d.eath and to see if the deft, is responsible for it; Hov/ever the deft's, ov/n physical act is not necessarily coincident \7ith the act of physical violence if he is respoiisible for it, as -if he employs- iriTiO- cent agents or if he acts as in this case. But deft 's. act here was not the cause of the v/oiiian staying out in the cold because she could have rone into a dozen ho\ises, arid it was her own act ij-i drioosin^ to staty o:.t of doors; therefore his act was not the cause of the fatal application of cold, as the fatal applicat ion was not se riding her -out into the cold, but keeping he'^ there till it became fatal. Granting, how- ever, that his act was the cause of the death, the question arises whether he had a reasorr to suppose she would do what she did ori accourit of his act. arid if he could not have ex*- pected he-r action, the fiecessai-y i;iental element of the crime is absent, STATE V Cft:.RI£N, p. 4b5, Indictment, for uurdex*. The de- ceased had heari ti'ouble at the tln^e of deft's. assault, and ■ caedical testimony shov/ed that, \indsr the circumstances, his - dcatVi was the natural aiid probable consequence of ti-.e assault, H£LD, the fact tha "i the deceased \7as affiicVod with a disease does not constitute a defence for the deft's. ^jrroncful act. Deft, is giailty because he did one cr»L'rie in the course of another, and so there is imputed intent. SUi;iiARY, Iri any case of personal injury it must, be discovered first, just \rl~jxt the act v/as the caused the irguiry. Second, v/as deft, the cause of the injury. Third, did deft, have the general or specific intent necessary. The means adopted may be of any sort provided it can be said that they were the cause of the injury. SECTION TITR£E.' ASSAULT BATTERY. REGIilA V RENSKAW, p. 45'i, Indictment for a misdemeanor, with a coiUit for assault and battery. Deft, left a child swathed in a piece of flannel at the bottom of a dry ditch, but the child was not injured. HELD, if ari exposure to the inclemanc? of the weather can constitute an assault and bat- tel^-, it can only be vheri. the person exposed sui'fers an in- jury fra.i ti;e exposure. This is a case \7here tlie chili is exposed but nothing happens to it and so tliere -aras rio assault arid battery, for the assavilt arid battery- is reaching the child's body v/ith 'the forces to wl-dcli it is e^jposed, ard riot merely the exposure, REGIITA V CASE, p. 42:), Indictment for assault. Deft,, a ph;, sician, under pretext of medical treatment had carnarl corinection v/ith a girl of fourteen, 'iVho made noresistance, HELD, defto is guilty because the £irl consented to an act wholly different from that whid.-. was done, arid hence there was no consent. The ^irl did consent to the physical act but the consent was obtained by fraud. The technical act of battery was also- present whethe-r there was consent or not, and it is a questicn of excusirig it. Consent is not a jixstif ication per se, as is -shown fro:.-! tl'.e fact that it is a justification in a wrestling match, but riot in a prise fight; so like all otlier excuses for a criminal act it is a question of public policy. Fornication 85 is not a crime at Goumori Law, where permitted, nor i-s the whole difference in Uegina v Case in the element of fraud. Bat the ■ difference is because the act taltes away the virtue of a girl against he will arid so it is acairist public policy that the consent should bo a justification; therefore a ■jor^n.'s virtue is protected- against this kind of deceijjo ■ REGIMA V CLARENCE, p, 433 o Indictment for assault o Defto who Vv-as infected with a venerial disease had corin-wction with his wife Vfithout -iriforminf; he r of the fact arid corntriunica- ted the disease to her, HELD, the majority of the court held that deft, was not guilty of assaiilt; but the minority decided that the act diarrred was not involved iri or sanctioned by the marriage contract and was one for M-. ich rio consent was given,, BEale agrees v,rith the minority of the court arid thinks there was ari assault. The v/ife consented to the coririec tion, but ^e did not consent to the -cammuriication of the disease, arid these are two different acts. It is like the case where a poisorious substance is put in a fig arid a persoii consents to eat the fig, arid it was held an assault to give the poison concealed in the fruit. It would be different i'n a case where the substarice is from its nature poisoriOus, Trie case of Regina v Clarence is the same as if deft, had smallpox to his knowledge and had 'coririectiori with his wife and so coi.uiiuriicated the disease to hero There is no doubt that there is an as- sault in tl-iat ca se o Beale thiriks the statemerit of the case. / as an analogy to a civil action, on page 447, is urianswerable. This class of cases presents difficult questions of fact some« tirrjos as to whether there are one or tv/^o substarices, but if tha-t is settled, thei'e is no theoretical difficulty virith the law. If a man consents to catch a base ball he does not con- sent to catch a dyriamite cartridge attached to it, but if a • hole is made in the ball arid the dynamite put in and concealed some might say he corisented to catch whatever was conjealed in the ball; but Beale thiriks tliat is just like Regina v Clarence, Granting for the moment p in Regina v Clarence, that the connection and the coaaiun i ca t i ori of ti-.e disease were not 2 - different acts, -thje. question then arises whether the fraud bars the consent. And it is v/ell settled, from public policy alone, that the courts will not go irito ani- question connected Biiiiply with the sexual irxtercourse between husband arui wife; but in tlie case of other persons, the question is whether the harm is serious enou^i for public policy to vitiate the con- sent, as in Regina v Case, arid v/liere the hann is very serious there is no doubt 'that conserit obtaij-ied by fraud would not bar the indictment. Also where' a man impersonates the hus- bauTidj there is no doubt an assault, but not rape. There is no SG difference vrhether a man iisr having intercourse \rith a prosti- tute or not, as a person carmot , as against the Piiblic, con- • sent to the infliction of severe bodily harm , althoucii he may so act as to tal^e av/ay any ch*ance of a civil action, COrvBvtOIWEAI/TK v WHITE, p. 450. Indictment for assault "" on one X<, Deft, was driving along a road whidi X arid Y were repairing. Y called upon him to drive in tlie' middle of the read arid also reprimanded him, whereupon deft, made a threat and' pointed a gun at X arid Y, X was put in fear but Y was not. H£LD, deft, was guilty of an assault on X, It is in the interest of public policy to keep a mari fran beirig frightened. Bishop defines a criminal assault as an at^ tempt to coicmit a battei'y; this is not true and his mistake arises from a mistaken reading of Mawkin' s -definition, where it is defiried as an attempt or offer to comiiiit a battery. Be ale thirxks that fear is not necessary for a criminal assaiilt when there is ari attempt to coitmit a battery, but that it is necessary v/hen there is merely ari offer to corxiit a battery or an intent to frigiiten, ' COlvE.lOmVEALTH v ST RAT TON, p. 451. Indictment for assavat. Deft, administered, in some fruit, certain drugs to a woman which he bougiit as love ppwders and thought to be harmle-ss; he wished to try their effect on her ard. sl:e was injured, HELD, the physical act' was iriflicted by the voluntary arjd un- lawful act of the deft, Ke knev; the substance was not ordin- ary food and triat the girl was being deceived, which decepticn was equivalent to force in overpowering i;er, Thei^e were two substariCes here and there was no consent to redeive the di^ug, although there was consent to receive the fruit . PEOPLE V MOORE, p. 453. The deft, was a-i employee of a comparii' which owned, a large tract of land on \';>Adi the village in qiaestion was located. X was a pedler arid had customers in the village, and deft, was employed to prevent his coming into the village, with instru-ctioris to us;e re as o mole care and not UTinecessary force. Deft, accordingly seized the pedler 's horse arid prevented him from entering. HELD, the assault was not justifiable, The streets w'ere open for such public use as was incideiit to tlie v/ants of the people, and tlie inliabittjnts had a rigLit to buy of any tradesman they wished, A battei'y need not consist in'Uctual physical force ap- plied to the person directed, but when actual physical injury takes place it is sufficient. S7 .^ oin.lIARY. To consii-ute a batte-ry iihei'O aust be an ap- plicatiori of force - Re;;,ina v P.ensr.aw, .\lt!iOU£,:i t'.i^i'e is con- sen'i it GOiiiet. L.ies has no lef;,al effect on accovmt of public policy ~ Re^iria v Case, Zut in the case of rape consent is a part of the ci'inis ancl consent destroys a possibilit.. of rape even thouj-h the consent is obtairicJ. by fraud. 'Tx^ere there an 2 separate svibstarices a consent to receive one does not pre- vent the coj.iiaunicat ion of the other iVoi-i beirig ari assault -^ Regiria v Clarence; but to supply the criminal intent the re > rar^t be an 'intent to coiur.uriicate tl;e force, or ner,lir;enco in avoiding; it. An assault is any urilav/ful physical force, part~ ly or Wholly put in laotion, v;-hich creates in another reasona-- ble appreherision of ii-jLiddiate physical vio- lence; but if deft, is en^^aged in an urilawfijJL a-ct the fear of the victim need rict be reasoiiable. If the deft, is en^a^ed in a lav/fiil act and the victiirj has uru'easonable fear, the deft, has neither actual intent nor is criuinaliy ne^^lig^ent, and so Beale thirties fear is necessary for an assault alone, but this must be distin£,"uished froiu an atteiiipted battery. In the bat- tery the force- need not be applied directly to the person - • People V Moore, S£CTIOII POUR. RAPE. R£aiIIA V BARRO'.V, p. 455. The deft, had connection with X v/ho supposed hL^i to be her husband. X 'Jas not asleep or UTiConscious at the tii.je of the act. HELD, there was consent althou.^x it- v/as obtained by fraud, arid so the offence could not be rape, C 01.3.10 inVEALTK v BUR.KE, p. 457. Deft, assisted X to com- iiiit rape upon Y without l\ei-' previous consent' arid while she was so intoxicated as to be incapable of consent. ■ HELD, no con- sent' was possible on the pai't of Y and so de.ft. is guilty of rape. GUI.J>,IARY, The present definition of rape is tl-:at it is conrisction without consent. If there is consent to the sexual act the 113 ia no rape, no ii:atter hov/ much fraud is used to ob- tain consent. This is showri in the idiot cases; where the idiot is still capable of exercising a v^ili, althou^l-i she may be BO much ati idiot as to "c2.ve only the anii^ial passions, there is no rape; but if she is so ftir art idiot as to -iiave no will and not to be able to £;ive consent, there is rape. If a man Lapersonates the husband while the v;ife is awake, and if there is no coercion, there caijriot be raie. 8S S£C?10I1 FIVJ:, I.iURDxlP.o YOIIG^S GASii:, p« 4G2, HELD, if an office^- attCiiipts to preserve peace iri an af-fray and is killed in the execution of his of rice it is xirarder. The lai.7 pres'Jxnes malice prepence be- cause the dcfto set himself against the justice of the realm.- REX V TOI.iSON, p. 4C2» X at oejripted to separate the deft, and his wife who were fi£i.ting and v;as thrown do^vn by the deft upon a piece of ix'on and received fatal injuries, n£LD, wherr- ever one attempts to pres-erve the peace and is killed it is murder providinr, the deft, krie;/ the deceased was actln?; for tl-^t purpose GREY'S CASE, p.. 463. Deft, sti'iick X, his sei*vant, with ' a bar of iron upon an inipudent reply received by httn from the servant. X died fran the injuries, HELD, a x..aster, in the correction of a sei*vant, iimst use such iristruments as will not probably cause death, and if others are- used and death ensues the lav7 judges it to be malice prepense, REGINA v SERTJE, p. 4G5, Deft, wilfully set on fire a house J which i-ie arid his fajinily occupied and the de-ceased was killed thereby. The eviderice shxov/ed tlat the deft, i.dglit have set the fire to get the insurance mo-ney ard. tl.at he must have knov/n the iranates were put in danger. HELD, if ariy act, which is known to be dangerous to life , is done for the purpose of comnitting a felony, and it causes death, it is CiUrdera - It is generally stated tliat any hoiuocidfi during the com- mission of a felony is murder. This is not correct and only • homocides in tiie' course of felonies vviiich naturally eridanger 1 i fe are murde rs o STATE V SI.IITH, p, 4G8, Deft, fired at X vrho V7as on horseback but missed, and the bullet killed a boy who was sit- ting at some distance off unseen by the crowd. The judge Cliarged that if the deft, fired v/ith intent t o do serious in- jury it was murder, but df vrithout tl-^a intent to kiH O'r in-- jure it was nianslaughter, HELD, the cl::arge was correct. The act. done indicated an intent to kill said, was calculated to produce tl^iat efTect as death was a -probable consequence, HADLEY V STATE, p. 469, HELD, the law presuu^es malice in intent iorial homocide until the contrary," is shown, arid all homocide is malicious unless jiistified, excused, or alleviated into manslaugiiter , arid such circumstances must be proven by the prisoner uriless they ai'ise out of facts proven against him. 89 ' SUIv-I.lAP.Y. The points in houiocide are arbitrary but aim- pie. ATiy difference in the grades of homocide is a difference due to statutes, for at Goimion Law, if personal violence re- ■• siilted in death, it v;as simply hornocide and the crime wa^ puTiished because of tl.e crimirial act of personal viol3nce , Tl'iei'e was early, probably by Canute, a distinction mada by statute between diffei*ent kinds, hardly degi-ees, of homocide, v;hich was to the effect that artless tlie offender cou3j1 be produced or uriless the pei'son slain v;as an Eriglishjuari, the huiidred in v/hich the person './as killed shouM pay a firiS to the Kirig,, called a Liiurder fine, arid the term murder \?as later carried aver to the nanie of the kirii of the offence , But there were no diffei'ent derrees of honooide as yet -arid dt m^de no difference as to the puriisruiient of the criminal. The proof of Encleschi-re arjd the paiinerit of a murder fine was abolished in 14 £d, 3rdo , but the riaxae was so well known that it was kept' alive arid carne to mean a certain aggravated kind of homocide. Eut by a statute, 24 Henry oth, murder was de- fined as killing with ii-al ice aforethoiight , arid was pirraslied- in a particular way; arid this was the creation of murder as a different de'gree of homocide and it distiriguished murder from manslaughter. Gerioraily speaking the line of decision as to the meariing of the words "malice aforethought" was in line v/i th the coem on meaning of the wordj;tIat is, triat intentional killing was nau^der and uriinbent iopal killing mansla'^ighter, but there were man:' and artificial exceptions. So the specific intent required in a niurde r is not alv/ays an intent to kill, althougli gerierally so; but iri the cases where an intent to kill is riot the specific interit required , the intent is rot treated as constructive i-ntent. but as the actual kind of specific intent riecessary. Wl.ere iininteritiorial kiHirig was murder :- 1, Wl.ere the deft, resists a lav/fr.l arrest. This is- an artificial case, bui if death results from the act of deft., it is murder, albhougL death was the last thirig irie ant arid al- though the act ^7as not in the least measure- adapted to the killddg - Young's case, Rex v Tomson, Deft, hov/ever, must kriow that an arrest is interided arii tl-at th^e arrest is as- sumed to be a lawful orie; but if he resists on a doubt as -to its beirig a lav/ful arrest he takes the risk, uriless he bona fide believes it to be riot a lawful arrest . 2, Killirig wliile in tiie volru'itary use of weapons danger*- ous to -life, as if the deft, v/isl-.es simply to scare and kills- instead. This class is capable of great ex-tension as to what are v/eaijoris dangerous to life - Grey's case, 3, Killing in the cours-e of the con-iiiission of a felony. This is too broad a statement ho.,ever, arid rightly stated the rule is, that killing in tlie cou5E»st5'^*t>f the cormitssion of any felony of violence where the commission of tliat crime itself 90 . . ■'■■ -h .1 is dangei^ous to life, is mux'der - Regina v Seme, , _^ says that killing in t^e course of arxy vian^erous wron^ is als' mux'der, even if tne wron/r; is not a felony, such as usirig dan- gerous weapons iii the course of sorue mino-r cri/^ie; Eeale thinks this is the correc:; statOi.ient of the rule. SECTION SIX. DEGREES OF MURDER o Ii£lGH70N V PEOPLE, F» '^^^» HELD, if the killing is not '" the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice cxade as the result of thought, liowevei- shori the strur,5le betv/een t:.e intention arid the act., it is sufficient 'to cl\ainicterize tlie crime as prerricditated and de 1 i b e r at e niur d e r . The establisiixaent of degrees of uiurder by statute is a metliod of controlling the discretion of the courts in asses- sing punislJiient . The first degree of murder is usually pun- ished by death, the secorui -by ixiiprisoriiiiCnt for life or for a long teriii of year. In IT, K, arui soi^e other states a nan is not allowed to plead guilt;- to murder in the first degree, arjd if he does an inquiry is held as to the degree of his grailt. The result in general is, tixi : intent iorial homocide -jhidr. is murder, or horuocide in t-.e course of the commission of very serious criiifis, or coii"ii:iitted uTider peculiar circumstances, is i:.urder in t;ie first degree; and other kiruis are of tlie sec- ond degree, bub is hard to lay down any hard iniles as to just- what hoiiiocides are laurders in tl\e se corjd degree. A distinc- tion is sometimes made betweeri certain cr-ael kinds of murder arii those supposed not to be sj cruel. SECTION SEVEN, MANSLAUGHTER. LORD i.IORLY'S CASE, p. 4-73. HELD, no wor^are -siifficient provocation as to r.Kke killing for such manslaughter. But if af tei'vi'ards a fight- ensues arid one is killed in sudden heat, it is L^arislaught or. If af ieinvards t\7o persoris become angry and then suppress their ariger, but after a time "reasorable for thed r blood to cool, they f i glw arid orie is killed, it is mur- der. HUGGETT'S CASE, p. 474. X, without a warrant, i^ipressed Y into the King's service. Deft, pursued X in order to rescue Y and in the fiyit which ensued a persori^vms killed, HELD, any illegal arrest or restraint, although submitted to, is a provocation to anyone to attempt a rescue, and if in such ca- ses death ensues, it is manslaughtei', 91 REGINA V STEaiAJ^I, p. 477, Deft, was accosted by a woman to whom he inaJii art inipudent reply and die icamediat'ely struck hiiT: a severe blow in the face di^wing blood. Deft, thereupon pursued the woman and Killed her, HELD, it is xnarislaughter and not murder as the srrart of -t-he wound and the effusior/ of blood mi£^it have kept the deft's, blood hot until liis act, FRAY'S CASE, p. 477, A threw a man into a/ pond^ without apparent intent to killl hini, but he was drowned. The man had just picked A's pocket, HELD, it is manslaughter arid not mui^ der. y The case is riardly correct as the act was one dangerous to life arid ore who ckies- it, for vdiatover purpose, should be held to ti-i.e consequences. It * REGINA V THOMPSOIT, p. 4 77. Def t . , a journeyman, left the service of his iraster in consequence of a quarrel and made threats of killing anyone who made an attempt to arrest him. The master arni X, a constable, found him in the privy of an inn and X at the master's directioTi attempted an arrest, but was stabbed and k'illed by the deft, HELD, deft, is guilty of maris laught e r only. The actual arrest would have been illegal and the attempt to make it when the prisoner could not escape arid when giving notice would have enabled the arrest to be coiapleted, is such provocat-ion that if deatli ensues, doft, is guilty of manslaugl-xter orily, REGIHA V WELSH, p. «79. Deft, arid the deceased met at an inn aft ex- a trial iri whidi a claim af the defi, against the deceased had beeri dismissed. Some words were exch'anged and deft, stabbed the deceased, who had struck no blovir. Deft, contended tr^t whether the provocation was slijjiit or not, it was not murder if he at the moment O'f the blow acted under the irifluence of ari urigovernable passion, HELD, intentional homocide is prima facie miirder Viritil a provocation is shown arii the provocatiori must be such as might iriduce a I'easonable mari to act iri the arigCi.- of the momerit, REGINA V ROTmVELL, p. 481. HELD, words generally will ^ not reduce murder to ma:rislatighter, but 'onds r special circum- stances words alone may constitute such a provocation as to • have tl-;at effect; arid so ttie question is whether She v^ords are sudi as woT-ild provoke an ordinary roan, arid riot one of a vio- lent disposition, to commit the act, MAHER V PEOPLE, p, 482, X saw his wife artd the deceased together under circumstances tendirig to the belief of a -pur- - pose to coi.mit adultery. X pursued them arid a short time^ af- ter-followed tlrie deceased to a saloon livhere he killed him-, HELD, the burden of proof is upon the prosecution to overcomB th£ pres-umption of iiinocence both as to the act arid tlie ma- 92 • - \ lice; althou^J: the act is intentional, yet if there is such provocation as would induce the average nian tO' act rashly and without deliberation , it is manslau.r;iter only. The bime dur- ing which such provocation niay be recoj/iized as a gro'-irid of mitigation, is one 'of reasonable tiiue urider all the circum— starjces of tlie caseo SUIvHIARYo All Tknintentiorial killin^^s are inanslauf^hter with the exceptions stated under murder and in tho se cases wlie re the re is no cr isi\e at al 1 , V/hat intentional killings are martslaur^'-iter: - 1, Killing iJ'i i~-ot blood on provocation where the blood boils, and v/here it continues to boil until the act. is done; but if tliere has been tiine for -it to cease or if for any rea- son it has ceased, it is laurder. There is no technical rule'> as to v/lmt thin£.s are sufficient to constitute a provocation. At one tiiiie it was thou^^ht tliat niere •.vords could never consti- tute sudi a provocation, but that is not so, as is proven by • a case v-'hei-e, urider certairi circuiiistances , a statement of a wife to her husband that she h-ad committed adultery, v/as heU sufficient provocation. So -her is nothing magical in a pro- vocation riven oy the iXie re use of lan^a^^e , In reducirig mur- der to nianslaii filter the tosi taken is t-hat of a reasonable cian and not the nand of the actual deft. This is, so because defto is suilty of intentional hoiuocide and the law artifi— ciall'y, apart froui the state of his i.dnd, cuts off sortie kinds of hoii';ocide and says they shall constitute manslauf/at or if tliere is a siifficient provocation for the blood of a reasoned able man to biol ard if there is not tiiue for sud. a man to ' cool off, ' 2, ResistencG to an u-Tilawfixl arrest, Even intentional kiHine^ in this case is manslaurhter and not iiiurder, Defto is not entirely excused because he ougl^t to have .rprie \w. th the officer before killiri^ hira, but his act is considered manr- slauf^hter arid not niurder. '('H-iether a third person who inter- ' feres io prevent ari uniav;ful arrest arid v/'ho is not called in by the resisting party coriiiiits rnans-lau-ci-ter if ha kills inten- tionally, has never kteen deteru.ined. It can hardly be said that a mere strariger coi-ild be so stirred up at the spectacle as to taake his act laanslaug-ht er orily, but if the 3rd person- is a relative whose duty it is to protect the person arrested, there is no doubt the horaocide would be ;iE.nslau5l:;ter, If an - intentional killing is shown, arid if dei^, then vfishes to shar it is only rianslaugjiter, he niust at least introdtice his evi- dei-ice first;- and if iiiOrely an intentional homocide i-s proven it is nvarder. There is a peculiar doctrine in Mass, th^t If simply a hoxi^ocide is sho\r/i and no thin!:; more, it is presumed to be tnui'der, Tr.is is not a good doctrine because the prosecur- tion should prove the intent in murder as a pari of its case, 93 *, V) In uost states vhoi'e murdei' is proven but there is no evidence as to whether it is oi" the first or second de,r,ree, it is heM to tie mux'der of the second degree; just as in mosi states, where only a killifie is pho^in^ it is presvtcaed to be manslaugh- ter arid not murder J CHAPTER TIiIRTi:£I!, MRCEITYo The reason v«'hy larceny is a crime is because it is an injury to the peaceable possession of property, -and tiiat the Public is interested to protect such possessions » This breach of peaceful possession of personal property is necessaiT for the erirae of larceny, arid to this is added a specific 'intent to staal, v/Lich specific ijite-n'; is a i;art of the crimeo IIo force is required for larceny* SECTION CMEc "RTiAT PROPERTY IS THE SUBJECT 0^ LARCEHY. Larceny is a criiue arairist ciiattels and therefors^ any*- thing wliicli is a part of the realty cariTiot be stolen; so ta- iling an apple off a tree with intent to steal is not larceny, but 'taking the saine off the groiirid with sucl-x intent, is lar*— - ceny,, This idea is so fai-* cai*ried out th^at tlie taking of cei*- tain chattels is not larceny^ because they are so closely conr- nectod i/ith t:-:e realty; for instance, a chiattel deedo There-- fore tiie property taken in larceny must not be merely personal property but i: must be a cLaltelg So a chose in action, vj-hicti is not tangible, earinot be- stolen, but the paper on whid:^. it is written can be stolen; ho.vever, when there is a valid obligation written on the laper there is an artificial rule that the paper is merged in the chose in action; but if the obligation is perfori^se^ or cancelled, the paper again be~ comes the subject of larceny. - • AriV animal is subject to larceny vi^ich -is capable of be- ing owrifed as property and v/hicii is possessed. Wild animals in their native state are of course not possessed and the i-ule is tiiat animals which are reduced into possession are subject to larceny if they are the subjects of property at all, Eut there is afi artificial Cor.u..on Lav/ riiie tiiat only those animals whicli are domestic cattle or those useful for food, are sub- jects of property^ This -includes such ajiiznals as sv/ans , 'pea- cocks, arid the :,ikd, but excludes dogs, cats, parois, etc, Modei-n statutes have done av/ay with this distinction more or less arid it is very eoximon at present for statutes to exist, rraking all personal cliattels subject to larceny, and this tr»- cludes all animals vliich are possessed, whether useful or not. Things which are substantial, but are in a liquid or gas- 94 eous state are as ;v.uch subjects of lai-ceny an solids,, Air cartnot be stolen because it is not subject to ownei'ship, not because it is not liable to be stolen; so a chemist wlio has oxy c^n in a box may have it stolen. But a mere force cannot be stolen ar*i there must be a substance; therefore one' canriot steal force off a pulley or power off an electric v/irso SECTION TY/Oo POSSESSION, The takinr of possession raises tv;o elements; a physical arjd a mental a It is aci*eed th^t these 2 elements are neces- sary aithoU£i. it is not agreed just what the 2 elements are^ (a) The act of assLunin^; possessiono REX V WALSH, p, 505, Indictment for stealing a leather bac containing parcels, the property of the gviard on the mail. The ba^ Y/as placed in the front boot arid the deft,, took hold of the upper end arid lifted it from the bottora of the boot, bfe was unable to get at completely out before he was internapted arii had to drop it. HELD, there was a compl-ete asportation of the bar arid so deft, is CTuilty of larceny, 50 No Y, 518, A thief put his harid into a pocket and gi'abbed a coin but viras cau£>it before he su-cceeded in getting it out of the pocket arid so h^ad to drop it, H£LD, the aspor- tation was complete arid deft, was guilty of larceny. The question in these cases is whether the deft, ^as possess- ion at any moment arid the length of tiiue the control lasts is of no ir,iportance if there is an instant v/hen possession is assiunedo So v:'henever a person, as a step toward carrying a thing away, raises it from -its position into his harids, there is a sufficient asportation. Suppose an overcoat is hanging on a dummy outside a shop arid is fastened to the shop by a chain to the ana. Deft, takes- the overcoat arid starts away, but is brougit up by the chain. There is no larceny for there is riot a canplete dorniriion in fact for the tLme being as the o;Tri£ r has at- every moment a direct conrjfiction arid control of the overcoat, REGINA V V/}IIT£, p, 50G . Deft, contracted to be supplied with gas to be paid for by meter. He inserted a pipe into the entrance arid exit pipes arid thereby secured gas without havirig it pass througli the 'meter. HELD, althoufji the gas was voluntarily supplied to a vessel v/hidi belonged to the defto, yet the gas remairied in the possession of the company until it passed throixgia the meter, and the deft, having taken it be^ fore that time, thei'e was a sufficient asportation for lar- 95 /^,- i^ cerr/o Deft., did not persorially toudi the gas but he exercised dominion over it, as it flo'^ed of its o.m fuotion to the. placa prepared for it by him; but this was a sufficient asportation* Chancing, the face of the meter \you2d rot be /.ai-'ceny as the cocipany consents to- the £,as goir^:, throu^Ji the meter to the oc« cupier of the hoi-ise o GOmiOITJiTEALTH v BARRY, p', 508 o Deft, under a pretext went into tlie bac£a£,e room of a railroad company and charced- the check from his valise to the trunk in question, whidi vas thus shipped to No Yo arid there claimed by deft'so eorifiederate and rifled of its contents, H£LD, the real question is v/hath- er the deft, feloniously set in motion arid innocent agency ,by' which the ti'urik was to be removed fro;.» the possession of the: reel owner, and vfriether sncli pxirpose v/as actually accomplish- ed. If the scheme had beeri detected before the tin.uik had been started , it would have beeri only an attei;ipt at larceny; but- as soon as the trurik as put ori tlie cars with the' check in - deft'so possession, the asportation was complete o 3eale thir.ks tl-.e caoe is wrong. The railroad company had this trunk all the tiiue arid they i.iust have liad possession while they ^ve-re carrying; it or they would not be responsible for its loss « The lov/er coiirt held there was a temporary possession by the deft, vfiien the check was put on, but Beale thiriks t". iw is not tnie, althoiirj-i there migjit have been lar- ceny of the daeck if thei'e ha.d been an interit to steal the « check; so no domiriion was exercised over the tinink by the ' deft, until it vras takeri away fi^om the depot in N, Y, Deft, was -ari accessory before tl-^e fact in Mass, and a principal in' N, Y, as he set in-motiori the force \7liich resulted in larceny. The higher court that dei't. did not -take- possession by merely putting, on a check, but tlia i; the R, R, -Co, took possessiori for a new person wheri the diecjk was chariged, 'ThiS' is not good reasoniri£ because the position of the R, Ro Co, was not altei^ ed and its possession coritiriued uribroken; so if there was no < divesting arid revesting pf possession, there could be no new takirig of possession, EDLIoriDS v STATL, p, 511, Deft, by the use of coi-n en- ticed a liog about 20 yBsds away from its pen -arii then s-truck ' it with an axe; but th^Q hog squealed arid deft, ran away, H-ELD, the dominion of .tlie trespasser must be complete before larceny is committed ap-id here the deft, rari ai/ay befors he had tlie animal urider his control, 71 Ala, 14, Deft, shot the animal and kneeiad down be- . Bide it and took hold pf it to cut its throat, but was thsn ' 96 intermiptedo There was larceny as defto had taken hold of the animal and assumed possessiono ' - 12 Texo Appo 207 o A steer was running in a field and daft, pointed it out and sold it to X but X did not take it av/ay>. There was r^o larceny as neither the purcliaser no* the defto took possess ions t)ut if X-had taken possession and carvied it av/ay thei^ would have been larceny by the defto, as he used an irinocent agent „ THOMPSON V STATE, Po 513o' X held out his harid with sil- ver dollars in it arjd. the deft, struck his hand arid kriocke^d the money out, but did not assume possessionu HELD, to con- stitute larceny ihere must be a felonious taking arid carrying away of personal property^, and deft-^ is not guilty if he did not get the money uMor Lis controle It is not enoufji' that tia money was knocked out of- the ovmer's h^ands if the deft, never-- secured possession of it ^ Mere depriving the other of hJ.s property was not assuming possession or larceny of it, because for larceny theirs must be soiiTQ dominion exercised ovei- the article by the defto SUTvUvlARYo If at any moment the thief has complete con- trol of the article tliere is possession, but this must be dia- tinguished from ability to keep possession - Rex v i7alsh« Although possession is possible v/ithout movirig an article, ' th-fire must be a takirig of possession constituting a trespasw. Taking possession must be distinguished from acts preparatory to it; for instance, piit-ting a hand irtto a pm-^e is not lai-- ceny if no coin is taken^ One may get control without 1iie use of the ha rids, as by natural forces - Regina V V/hite, But if - ■every part of the thing is moved fran tlie space viiidi that part -occupied there is a sufficient asportation - Regina v Walsh, Iri Coianonwealth v Thompson, and in Edmunds v State there was no act of dominion arid so no possession or asporta- tion o (b ) Distinction betv/een possession arid custody. This topic considers the cases where one has the pro- perty in his hands but has rjo t the legal possession of it. So tliese are cases where the property is in the harids of A but is actually in the legal possession of B; tlie position of servant wiH not be considered under this topic as they hold an anoraolous posit ion, AJJONo, p, 514 » Deft., was a guest at a house arid aross early and took tlie bedclothes out into the hall vri.th intent to steal them, ar^i while he mas out in the stable securing his ' horse, he -was apprehended, HELD, deft, was guilty of larceny, 97 Soinethin£, is to be said in favor of" Sta\irirord's viev in the note on pa£,e Sl'l-, ,;hich is, that wherevex* there is a chat-* tel contained in another cl-iattel or realty, as lone 3-s the owner has possession of the aortrouriding chattel, he has poss- ession of the thing inside; but the law has not ta]fen tl;at view of possession. However the la\7 has gone so far as to say that when the thinr, is still attached to the owrier or to his property, as ari overcoat o-n a duuuuy chained to a ^lop, the ov/nai' still has possessiono But there are no traces of Stan** ford's view in the law at present. Larceny is not for the pro tection of property at all at Conraon Lav;, but fof the pro- tection of possession orily, as it is a?;airfst the peace of the state for possession to be interfered with. Modern statutes r£Lve gone so far as to take an interest in property, but it was not so at oora:aon Law, AITON,, p, 515, X delivered silk to workmen in ]-.i'S house t.. use in bhe v;ork there, and they took soiae of it awayo H£LD; it was larceny, TLe entire property and possession re~ mairied in the owner -as the delivery to tl^e v/orteien was only for use in the house o The workmen were goinc to be 'employed on the premises, a,rd so they did not get possession, A guest does not have possession of the cup he is dririk ing out of at the table or of the chair he is sit'.ing on, as the owrjer must look out for tl-aem and not the guest. If one has possession of ari article he is responsible for it arid must take care of it/, as possess- ion involves both legal liability and legal right, REX V CHISSERS, p, '515 p Deft, asked X, a shop-keeper, to show hiiii sorae cravat-s, X let him take soriie into his hartiis to exaiiiine aril tlie deft, ran off witii them, after he l-.ad of- fered less than •tl-.e price, HELD, it was larceny. The goods were not out of iyhe- possession of X althougii th£y were deli- vered to the defto, and uritil the property was altered by tl^ coiiipietion of the contract, the possession of X continues. The cravats were not in the possession of the deft, urit il he rari 3i;;ay with them. In all of these cases there is a suf- ficient act of dominion by the deft, but the intent is absents, arid both elements are necessary for possession to pass. In - order for possession to be acquired the article must be taken for- the independent -purpose of tlie one who takes it; but in these cases the deft, intended to hold UTider the imi.iediate direction of the owrjer, and he acted uriier the eye of the- own- er arid did not intend to use it independerttly at any time, • - So it was only when he deteniuned to use the articl-e for his own pui'pose tJriat his custody turned ihto possession, 93 • lOiee ■l:iOr> ••tt •* e:\f X. Jom: in 6i .m TlEGlilA V SLOWLY, p. 51G. The dafts. agreed to buy oniofts of ti^e p:»'osecutor at a certain price in ready nioney to be paid wheii the onions were uriloaded; tL\& onions vecQ virJ.oa— ded by the parties to£,ether, and the defts, then cade out a • receipt and refused to either ^iire bacl? the onions or pay the price, HELD, this v;as intended to be a cash sale and in such cases the transaction is not coinplete until both the payment' of th.e Cioney and the delivery of the article have taken place. Therefore the defts, were £;uilty of larceny of the uriione as in sxi<£v sales the possession is not chariged until t?^e money is paid, , The onions were lying on tl*e ground between the two par- ties, but the possession did not pass, for the owrjg r did not intend to give possession till he got the money. If the owner voluTitaeily gave up possession, althougri throu^^ fraud, thai^ coiild be no larceny; so the statenie/it on page 518 is not cor- rect, CW.Ii.IomVEALT'h v O'KALLEY, p. 518. Indictment for embez- zlement. Deft, was allov/ed to coiirit certain money in the pre^ sence of the owie r ard to take frou. it orxe dollar, but the deft, detained the whole. r'£LJ, the deft-, did not have poss- ession here, for if aji owr£ r puts his property into the h^ar^ds of ariothe r to do sol£ act v/'ith it dn his presence, he do^s not pai't with the possession of it. Therefore, the deft, not having possession, the offence was larceny and not embezzle- laent* The offence was larceny although the deft, had the money in his harid when he ran off with it, for thifi. possession was in the owTiC r who was present. HILDEBRAHD v PEOPLE, p, 519. X handed the deft., a bar- tender, a fifty dollar bill for the purpose of taking t&n cents out of it -iii pajaaent foi' a glass of soda; the deft, de- tained the whole, !T£LD, tl-:e possession had not passed to tha deft, for it was yet an incomplete transaction, to be consum- mated in the presence of arid urider the personal control of X^ ard. there was to trust nor corifidence reposed in the deft, nor any intended to be. Therefore there was larceny, Su pose tiie bartender witli the owner's consent, had gone out into the street to get the bill cliariged and then had de- cided to keep it. That would not be larceny, because the in- tent of the oiVT£r to let the deft, take tlie bill out in the street, mi&rQ the owner could not per so really look out' for it, is inconsistent with ari intent not to pass possession. How- ever, this woiild be the statutory crime of embezzlement as 99 as the defto v/ould havo the lawful possession and woul,d t-,uaply be doiriE, soraethinf;. else with the property thar^ he agreed to do« COMMONWEALTH v LANHOIT, p. 521 o The defto was employed ^ by X to ascertain the prioe of piece of land and he reported t6 X that the price '.ras ' v^200'a more than it really was; of the atiioiwit to be paid -the deft« was to receive OlOo f or services o X gave to deft, the amount stated arii the dfift© paid over only- the real price, keeping the difference,,- H^,D, it was 2areenyo Defto was authorized to ta^e %\^ raortey by Z- for the purpose of transferring ell but .^10 o of the identical bill to tlie vendee, and the defto was no i^iore than a servant of X, UTider his immediate dii-ection and control. Therefore the property and the possession remained in X ail the tins the laoney was iri the deit's control. Grant irj^ that the morey reaained all the 'tLrje practiisally li/ider the eye of the seller, there was larceny. Of course it is a question for the jury whether the ruoney di.d remain aride-r the owrisr's control, but grarit irig the facts the law is slsaro In all these ; revious cases the possession has actually been in the harid^ of the ovmer, as he was present and exerci- sing actual control, Bv.t we no'Jf ooi-ie to cases where the, poss— 'essor is not present ard. Lis possession raust coxae fron some eoriTiention with the property; so an exception must be foA- ly indeferisibie on principle; for just as on principle, all things given by the master to tLe servaiit to take away should be in the possessiori of the servant, so all ti:iings given by any other persoji to the servarit ori tl~e master's premises shoxil be in the master's possessiori^ be-cause they are then practi~ cally under his iri^Tisdiate control « ^X V BASS, p. 551, The def t « , a sei'vant, was given a package of goods by- his master for delivery to a cuistomer at a particular place. On his- way the deft, took the goods out of the pacJ^age arid soli tliem* HELD, the possessiori of the 101 - I £.oods remained in the Liastei' until the time of the conversion and so there was larceiiV, By ari exaiiiination of this arid the nex': 2 eases it is seen that it was not la-itil tlae end of tl^e last century that it was firally detenuiried that viheri £,oods are £,iven to a ser- vant by ttie master to carry av/ay, they are in the maste-r^s '• possession; it was firallj' settled by Rex v Lavender, p, 532, HEX V WATSON, p, 532, Deft, was sent to buy sone li- ' censes for Lis master, \iio delivered i-o hfcm money for th^t pui*pose; du f t . ran away v/ith ti:e uiorjey, H£LD, this is not felony at Ccaon Lav; as there was no fi'^udulant obtaining of possession wit:, inteni to steal. Tiiis is also not a case of mor^y i^iveti by the i^ias ier to the servant to keep, coming uriderr the statute of ]-'enry Sth, for the expression "to iieep" there used asans to keep arid retuiTi to ^^:.g master. This case shows that up to this time it was i-iot finally deteniiinc-d thai £,o ods £iven to a servant by the master to ear*- ry aivay are in tl'ie master's possession, TlcX V LAV£iIDER, p. 532, Deft,, a servant, was r,iven mor£y bj his master to carrv to a certain house, but he bougli a v.'atch with part and kept the rest, H£LD, it was larceny at Cccmon Lav7 , This case overrules Rex v V/atson and finally decides that the possession of the taster contiriues v/hen he £,ives [pcxXs to a sei'vant to carry ai/ay, Tliis l:ias aontinued to be law to the present day, < s RXIGIIIA V TOLLETT & TAYLOR, p. 533, Taylor made arrange- ments with the wife of the prosecutor to elope arui it was ari'ari£,ed that she should put money belonging, to he r husband into boxes to be taken away witl-* them, Taylor went to the house and the -boxes v/ere delivered to him by the wife, HELD, it was larceny. At lav/ there is such a unity between hi:sbarid and wife that it is not larceny when fpods are delivered to ejn indiffei'ent person by the wife; but wherx such person is an adulterer it is larceny. If a wife gives property of I^r husbarid to a stinanger it it is not larceny, whatever the int erit of tlue sti-anger, be- caase, althou£;I-: at Cocmon Law she has not possession, but only custody of even the- dotnes slie wears, she l^ias the power to pass the possession. But there is this purely arbitrary ex- ception that when t:.e v/ife £;ives goods to ai-i adulterer and ha carries tliem a.7ay it is larceny; there is ro attempt to justify 102. ^bOO-^ '5 5 ':j this rixle on any theory of posseBsionj but it is founded on a ^eneva.1 desire to punish adultery, Ti:e v/ife could noi be held as principal in the crime as she could riever have possession but if she took part in a larceny by saxieone else sl^^a couM probably be held as ari acjeessoryo Ari adulterer, in this class of cases, means anyone who has coixjuiitted adultery v/ith her or intends to, REGINA Y NOWAL, p, 535, Deft, was riven dock v/arrants by his niaster for cer ain deer }-orns, and after receiving, arid puttinr th&Ci into a park belon£;in[^ to tV. e i..aster, he stole soi.fi of them. HELD, tl e g^oods "vvere constructively in the possession of the iriaster as so-on as they were placed in tiie cart, arid so there was larceny o It must be assumed the cart was in the master's possess- ion in this case; and if so arid the se rvarit interjded to pass • posse'ssion •wLe.ri he pvtt the £,oods in the cart, t:.e case is clear, REGIMA V RiSED, p, 536, X sent tl.e deft,, hi-s ee rvarit, " with his (s rt for coal, and on tlie return the deft, took some of the cca3, froi.-. the cai't ^ The deft, hiUd be«n directed to briri£, the load to tl.e house of X, his uBster. HELD, the ex- elusive possessiari of the servant was ended v/hen the oo'al was deposited in the naster's cart, ard thereafter the def^, bad only the cjustody or cl-aree of it., arjxi so thei-^ was larceny, • COi.UJ.ONVffiALTH v RYAII, p, 543. Deft, was a sei-vant of X. Deft-, put some money whid. had been paid for goods cf X which Deft a had sold into a money drawer belonjrinc to X v/hich was open, and in a few maiients took the same ut ag^ain, HELD, tt^e deft, intended to appropriate tliQ- money before putting, it into the di'av/er, vriiich v;as dor^ for his ow-n convenience, arii so it never passed into the possession of X« Therefore the offence was embezzlement aiid not larceny. Suppose tiie nas-ter seriis his servant to X with a cart to get a dozen articles« X v/is-.es to keep one of the articles arid puts eleven in 'i^e cart openly and conceals one in tlie cart, but walks alor/^ beside it interidinr, to take it out when he readies his i^ouseo Tr^at one -jould riot £0 out of the poss- ession of X because, althourl. physically in the cart, X does • not relinquish possession of it,- as he did not intend to nor- did he put it out of his control. So the true distinction is between articles put in tl.e vehicle \Tith 'che intention to pass the possession over arid goods put ti::ere for his aan purpose; arid this distinctiori is equally cooi ^n Reed's arid Ryan's/i cases, vrt'iere a servant is concei*ned, as in tlie case of a third 105 30 0 ::>o»t c le£,al ijossession. In whose possess ior^ is axiy los ". property before it is foiUiJ.? I: r.iUst be in il.e possession of someone or tliere ould be no larceny arid p^'oi^erty onca in a person's possession coritinues so till sOi-.eone else takes possession; persortal property i.^ust- ar.v;a:s be in i-l^e possession of someone lAj-iless it is abandoned, r'ere ;ve first meet witl. constiuictive possession as di st in£,uis-.ed froui actual possession, arid it arises in cases ViTl.ere tl.e law must regard sa.ieone as tJie poss- essor* to f'alfilJ t; e requirex.ienb in re^^ax'd to pei-sonal pro- • perty, 3o construc*;ive possession is i'..at v/'.ia!. is asstuned iii so.-.eoJTie by lav/, and ti.e only one the lav cari force tiiis upon is tlie last actual possessor; consequently consbi*uctive is a continuation of actual possession arid in lost property the possess iori re^iiairis in tl;e loser till soueone else takes it. R£G1MA V THUREORII, p. 551. Deft, found a bankriote which he picked up v/iih. tl:e iriterit to appropriate, but tliere 'jere no i.arks or circui.iStarices b,, uhich ..e could discover to \t.om the- note he .oiir^od. Later he v;as iriforiaed as to v;ho vas tlie o.;ner and subsequeriily chari^^ed the note arid used the moriey, r.LLD, neitl.er (i.e ori£,inal takirt{_ rior t'.B subsequent appro- priaiiori ariii^io furaridi vras larceriy. 'Tr.oever takes ^oods which he reasoriably supposes to Iiave been lost arid reasoriable be- lieves t..e owner canriot be fourid, it is not iai'c^ni' even if he takes t.-e;n v/ith ari iriteiit to apj^ropriate them. Eut if there is reas Ofi to -believe who u..e owriei* is or that it can be found it is larceny, Tierefore sirice the deft, in tl. is case acquired a lav/ful possession in tl.e orii.irial takirir,, any sub- sequerit coriversioii arii;..o fura/idi is larcerry, althouf^i the real owner is theri knowri . Til this case the principle- quest iori is v/hetl-^e r the takirg of lost property cart be larceny, A firtder does not get poss- ession by uereli' taking up ari article to look at it, but if he decided to carry it away he gets possession, and he carinot ca.ir.iit larceny after he takes possession either for the owrier or for hiiiiself; and a fi rider of goods lias the rlrjr.t to take tl.au for the ovvrier. If orie firuis lost pi-o perty and reasonably believes the ovrrje x' will rjever coive after it arid carjriot be found, he does not coini.d t larceny if he takes it for himself; tlie owrier does not lose his propert-y however, arid if he does claiiii it the finder iaust give it wp. But a firiier of goods, where ti-.ere is no pro^f to ti.e owrier, has the legal powsr to use theti or to sell th^'ii ar^i pass title, ■ ''^':-inA V PR£3T0N, p. 557, X losi a marked note a-nd the deft, lawf-Lclly received, ihe same frotn the tiriler. Deft, af«tei* "ward asceriaiiiod to «l-;aa the rtoia belor*ged and coriverted it-, • 106 '«^ The judt,e cl.ai'f^ed tliai ix" at t:-.e time -the deft, Tirsii .'esolvGd to appropriate the note, he had rea&onable mearis of finding the o:niQ\-' , he was guilty oT larceny, F£LD, the chaise was erroneous. The taJtin;- of possess-ion arid tJ.e animus fai^andi ciust coincide, axid so if t-.e deft* tooB. possesDion lavfally, any later intent could not uiake his act larceny, R£GINA V 'WEST, p. 5G1. X lefi his purse at the raarlcet stall of def-t,, who, on its beiri^ pointed out to her, ap- propriated it, F£LD, it v;as larceny. There is a clear dis- tinction between property lost arid that left unds r circurristarr- ces v/here the OiruQ f would kriow the place i,vi~xer he left it arxi • would naturally re iuiTi for it. If ariother person than the owie r of the shop had found the article, he should have left it at the siiop for the ovmer, but if no owner appeared, ti^Q finder could clahvi it, REGIHA V ROV/fl, p. 5G2. Deft, was indioted for stealing chattels belonging to- a certain canal co^-^pany, Deftc v/as not an eruployea of the Co., but tool? the iron in question from the canal while it was beinj: clearied; tl-je iron had been lost by users of tlie carial. The deft, contended tiiat the property was no/'t correctly described as that of tJr.e Oo, H£LD, the indict- ment was correct. The property of the Co, in the iron was tlie sQiiiQ as -i'-at whid-^ a landlord has in floods left in ^oods by - his £,"aests, arJ. sud^ posse ssio/i is sufficient to ...aintain an indictment for lai'ceny. The carial Co, had the ri£]-:t to the possession of anythirjg fouTid on iis premises by a trespasser, as axi owner of larid has a vi[jit to every txiin£ a trespasser £,ains by the irif ringenjent of his i*i£j:t; but tl:e possession of the article, imtii fo'ond, is const rue t-ive-ly in the owrie r of th.em. (ISyC) 2 - Q, B, 44 - A landowner enployed a se-rvant to clean out a porid arid the servant fourd a ririg tl^rein. The i-i rv5 b&- foi-'e it was found, was in the consti-uctive possession of its > ov7ner, althouf^-. the owxje r of the pond r^d a rifj-.t to its poss- ession as a^airist the servarit; Re^iria v Rowe does not go ag- ainst tl';is imle , foi" the allegatiori as to the pi-operty of tha canal Go. is ortly a iiiatter of description ard need not be teds nically correct. The owner of premises Ir^as the right to • ^ possession of ariy articles found on his praoaises by a servarit in the course of hd s aaployaerit , or by a trespasser; bui any~ one \i\o b,as a rigi:t ori the larid can keep V7hatever he finds, ■ except where he finds it in tl~.e course of his employuaent by the ov/Tie r , "^ COLliOirJ^VLT" V TITUS, p, 5G3. Deft, found a wallet of 107 ^ !• B'b on a hi,>..7ay, Ti.e jud-s charged tliit V.ie deft, iviusfe have ta^exi possession of tl.e pi'opei'ty '.vii'.. intent to steal, and that at ii^at tL^iC '::.e iaisi have :.ad reasonable u^eans of ascer~ tainin^ v/iio il.e ovfl-ie i* ".vas , or he was no: £,uilty of ..arceny; ■ and any intent to stoa-Z. formed subseque/it to ti.e taJcin£, could not constitute iai'ceny* I'ELD, ti.e chai're was correct. This case is like Ker^ina v Tl.urborn and is £pod lai;. '^F.GllJA V PIITLAYSON, p. 5!'.5. Deft, was d.'ivin;^ a mob of horses '.i'^::eii. it v/as joined by ;.ie branded horse of a nei^ibor- iri', ovner. Deft, did no' see the .^orse at the tL.ie, but next morninj^, as .vas custoL.iary, courited -the horses and discovei»ed it a/id theri drove on the v;hole herd, I-LLD, it was larceriy. By i;e saiiie act the deft/ -took possession of tlie horse arid da- te xiidned to appropriate it. The horse was in the const i-active possession of t.ie o'jvrier tiii luornin^,- v..en viefi, decided to keep :-:L.i, for tl.en he as- suxtsd co-ntrol. If the horse had strayed out during the nigr^t arJ. deft,, thir»kin£, it v/as ..is o'.7n, I'^d driven hii.i back, he v/ould have t-aken possession for he wo-uid have assuraed control of the horse. But vifhe n he siiuply drove alont^^ tl\.e whole herd, not knov/in^i, tia t any outside ariiuial was tuyere, he acquired no possession, arid posse ssiori v;as first ass-omed wheri ..e directed liis attention to that individual h'orse; and tl.is he did whaj4 he counted ,.is ...ei^d in f..e j.iOi'Tiin,,;^, RLGlIiA V ASr\7£LL, p. 5GG. Deft, a-sked X for the loart of a shining,. X i^rided to deft, and deft, received wi^t each tho'J£,..t was a s.-illinf;,, but wl.icl^ v/as in fact a sovereign, ' Later t.£ deft, used t::e soverei^^n a^id appropriated tixe whole., K£LD, half ti;e cotxrt held tiat it -.vas not larceny arid that to coristitute larceny a chattel luust be taken aiC^ainst tlie corisent of the owrier, and that tr.ei^ v;as coriserit iiere. The; oti.e-r l;alf of the co-trt held that it was larco'iy; ti^t the" deft, did rio ;. co/eent to take possession of the so vereicri- till he knev it was oric, arid tl.a o; a persori does not ccr.serit to that of which he is entirsly i£,rxorarit. The question as to wliat resporisibiiit ies possession car- ries wit:, it is eritiroly a differerit problem f-ra-n tl-^t of ' ■ possessiori arid l^as to- do with Torts and riot with possession, Beale thirdis the deft, did take possession wlien he took the article as a siiillin^; the physical coritroi was the.i'e and he iriterided to exercise contol over tiat specific point which he took; so both the riecesc ry elements ./ere preserit arid he ao- ' quired posse ssiori wheri he took it i*ron-i the harids of the giver, Re£,ina v Asl.well is no authority eifei-^r las as where the 108 judges ax'e equally divided there is no decision on a point of* laiv , aliliou^,;-. ti.e senteno-e o-f the lover court is not reversed, PiBf^ina V Jacobs, 12 Cox C. C, This is an earlier case thari Rerina v Ashvrjli and is a;,airiSt i-t. Retina v T-'are, (I'J'jo) 2 Irisr. 70S, This is a late Irish, case aj^ainst Retina v Ashv/ell, A interjdiri^ to i^ive -B 2 one pound notes c^ve hi... a one pouiid note arid a te/i pound. The court hai no doubt t'.iit Jeit. , took possession of* tlie ore poi^'id note arid t -is hoxfs how absurd it -v/ouli be to Loid that deft,' got < possessiori -of or^e of LI.e pieccJS of paper arid not of bit ot»x*ei\ Iri -the U, S. thex-^ are only 2 cases on the point, one each v/ay . 8 Ore. 304 is the oril, case in i;e English spe'aking ■'.vorld which holds th.at sucli facts coristitute larceny. 97 Ga. 430, In this case the coui-^ held it v/as rot larceriy arj. ViTortt even fa-rt..er tlan tiie judges v;ere asked to go in Regiria v Ash".jrell. Suppose a ivan vrishes to give a persori 10 dollars but. courits out riine, t..irjkirAg he is countirig out ten, and. both parties ai'e "urjder H.e saiue Liistake, It is p ain posse ssior^ passes of the i-^ii-te. Tl.sici does not possessiori pass Vifhen he counts out 11 dollar's iris:ead of 10? If it orily passes for the 10, of which teri cari it be said to pass? RiiGlNA v FL0\7r,RS, p. 574, Deft., having been given a sealed erivelope coritairii/i,^ his v;ages, rc-tUx-r/ed the bag empty to ti.e clerk ard. stated the a.iount "jas s.-ort. The clerk gave hi... back tho ar^ourit of ti-.e a.iGr:age ar^d at t..e sarne tlae han- ded hii.. '.Vx.at ..e suppose-, was the deit's, bag, but vhich was really tl.e bag of another xro A^i.iOn co.ntaining uoney. The deft. received it innocently, but after'.rard fraudulently appropria- ted the saiTie. HELD, it -i/as rio t larceny as the ariiiiius f-eraridi did no': coricur vdtlx "i^e takirjg of possessiori of tiie bag. The facts in t..is case caririot be distinguished fro.a :ie- gina V Ash\7ell, arid tl. is case states the tiiie doctririe. If • tlxSre is ariy difficulty, it is witlx tiie firiding of the jury on the facts, but the lav/ is clear. S i^tnit* AT ij.' 7he mind of a persori r.mst operate in order for him to- take possession of an article; so i/i Regiria v Mucklow de-ft. took pessession of the coriterits of a letter because one ordin- arily intends to take- v/liatever is contained in a letter, but • iri I.ierr-y v Greeri deft, did riot get possessiori of a pocket- book of which he had liO knov/ledge- ard whic. was in a secret iiravrer of a desk he had purchased. Corist I'uct ive possession is th.e possession of an owner after the actual coritrol is gone, but before anyone else has taken possession. A finder is guilty of iarcerry according as an 109 \\it*-1pt^.JJi intont to take possession coirrcides with the time when he tai;es possession wibhoui ^ri^.t. If there is no proof to tlie owrfi r he lJ3.s a rig^^t to take possession on the £,i*our4>is of public policy, but if there is a clue he iias no ri,^.t to taJ» possession for hiciself altiiou£,h he can ialie it for the cfvmer* But to constitute larceny the takir;£ of possession and the - aniiiius 'fLirandi laust coincide - Re^iria v Thurborn, Retina v Preston, As betv/een the firider ai'id the owner the place of , ^^ finding is irruViaterial, and the sole question is v/hethejp^there C is a clue; therefore there is no- differerice between property - lost and mislaid - Re^iria v '"est. As betweeri the f ir»ior ard a third person:- 1, if tie finder is not a trespasser he h^as as a^^airet the owner of the premises a ri^-.t to possession, arid if he ^ives up the property to the owner of the premises, as lie should, he is a bailor and the landowner, as a bailee, must accourit to hixij if the owrie r of the property never apiears. 2, if ti:e finder is a servarit who is under obligation to cive up the property tfi the i:ast.er as beir;£, on his _ prei.ases, he has no ri^t to ths possession; but the sei'varit has a rir)it to the possession of anythinc he fird.s, uriless he firids it in tr.e- course of his emploiT^ient by his laaster arid on his premises, 3, a trespasser has no ri£,:.t ':o possession of t..inr,s fourid as a ainst the ovtti- er of the premises. It is no"^ riecessary that the one iri whoiii pi'operty is laid in tl~.e indictn^nt should have the title, for the allegation of owrjfirship is put in inerely as a rimtter of description) but ' tx-is description must be sue: thcit the^ deft, is not confused. (d) Tortious Possession, P^GINA V TOV/NLEY, p. 577. Deft,, a poacher, killed some rabbits, and havinc put sona of them in bar,s arid into bundles, cojiceaied them en the seu.,e land wl^e-i'e ti„e y l":ad been killed. He- af te .'wards cai.ie and reiroved thern, HiiLD, it was not larceny. Wild ariiiaals are not subjects of larceny, arid the killirxr arid redviciri^^ to possession and the asportation were coritinuous; the subseq^aerit removal was iri coritinuation of the original intent. Before the rabbits were killed, as tho" were wild animals they were -not iri the possession of anyone, arid so riOt subject to larceny, Tlxey ^ere in the poaciier's possession all the time after they were killed, as t-.e poacher had not relin- quished his possession, for the land-owrier had not takeji con- trol -of tliei.j, arid so there was no larceny; althou£^-. the ser^ varits of the larid-o^rier discovered the rabbits they did not • assurae possessio/i. If there h^ad beeri an abon orunent by the trespasser the owrie r of the larid v/ould have secured possesa*- ion, arid any subsequent taking a\7ay would have been laroeny* iiO PoEGllIA V FOLEY, p. 531. Deft cut dcvm some grass on the premises of X, and 2 days later, having raked it up, carted it off, but did not intend to abandon possession in the interval betv;een the cuttin^^ and t.-e rGLiovinr,, II£LD, it was larceny. After d.-iattels are severed fravi the realty and reduced into possession, that possession uiust remain continuous in fact, arid continuity -of intend is not continuity of possession; bo when the deft's. actual and effective possession ceased and the diattels v/ei'e lefi upon tii« owner's soil the constructive possession vested in the owner » .ustice Palles dissented arui held tl^at T/lieii. the possession lias once been gained, it must be abaridoned or else the severance arid the removal are to be cor*- sidered as continuous, arid th^ is tlie question of intent to ^ be ascertained by the Jiiry, Eeale agrees with the dissenting, opi-nion of Palles who was one of the ablest of the Irish judfjes, C0?.C.i0m'/EAL7H v STEIIILIIIC-, p. 531. T/aste coal from mines were carried do\Tri a streaixi by currents arid deposited alorig the chai'iTie'l and the banks as the stream passed over the pre- mises of X. Defto in a boat feathered up the deposits, cleaned it from gravel, loaded it into his boat and carried it ashore into bins, froiu which place it was sold. HELD, it was larceny if taken animo furandi as the severarice ti^aii the I'ealy arid the asportation ./ere not one arid the sane continuous act. The case is enti'rely ^yronr, and foiirided on a misconcepticn from beg,inni?}£ to endo The coal became part of the realty, the same as stones which liad been washed down tiifi stream; of course if the coal had become persorial property once it would remain so, but this coal was' a part of the waste whicla had never been persorial property. If it was real estate there is no doubt that there was no change of possession fj-om-tlie moment the deft, severed it until he got asray -with it and so there was by no possibility larceny, REGINA V RILEY, p,'591. X put' some lambs into a fielji and afterward the deft . put in some. Later -the defto drore out what he supposed was his flock-,- but it contained a lamb- ' belon£,in£ to E, vftiich on the poor li^ht escaped notice. Deft, drove the flock to the hoi:;se of G and bargairjSd to sell the same-, ?Iis attention was then called-'to the lamb of X-arii he sold tliat also, HELD, it was larceny. There was a trespass at -the time- tlie lamb was taken -fi'om the fe-ild ard. it continued until- it -concurred- -with the animus furandi, - This case is larceny on the same groxmds as Regi-na v Pirilayson, that possession did not pass till tlie de'ft, dis- covered it, and Pollock puts tlie cae on that ground, Parke decides the case on the grovmd of a contiriuing trespass whidi 111 I 'Viu^,..^ ■ STATi: V C00L'L':3, po 59oo Deft, obtained rossosslon of a team by preterijdinjr, that he delsil^3d to [O -to a ser-taJn plaoa, but in reality ho intericlod to £.0 to anothero Ke did not at the time interii to steal the proper»tyj but after he got poee^ ession^-he feloniousli" converted it o -liELD^ it -was Jiaree^ay-o • TThen the takirx^ is fraiidulont or tortious ^ -the animus furandi need not exist at. the !;inie to tjreate a subsequent larceny j, for the' trespass continues uritil -there is sueh a fo?i.onious ccr versiono ~ . . •, ?liis case is trrong.o It was not larceny to take the team simply v/ith aci intent to gp to a different place thari he de- clared; so there was no larceny v.'-hen he hired the vehicle and thei'e was rio tak ini:, of possession yt'lzari he foiined the animvis furaridi as he already h^d possession; therefore tlie- doetriiT© OlT a continuing, tort eanriot possibly be tenable arid the cas« is Tsrroni^o Even where there is a trespass at first as in Re- tina V Riley, tl.erG eam-iOt be a continual trespass eorisisltiiiig in tajfin£, tlie proxiei'ty out of the possession of the owier, for ViThen the propei-ty is once talten out of -his possession there - canriot be arotiiei- trespass until the ajrier gets-his prop^arty ' back as one eanxo't trespass on property iii his own possession. The -doctrine of a continuing;; trespass only applies vhe^Ti-the trespasser has not possessions as in the ease of trespass on realty, and tlaerefore there is no possibility for th« exis- tence of the doctrine of continuous trespass in lareSr ny, aa larceny requires a ccrnbir*at ion of intent and tqkinr; of poss- ession at the sane rooment o V7ARD V PEOPLE, Po 595o The indietaent charged the deft', with havinr; stolen cccdS; the property of x. The evidenise- tended to -shov/ that the goods liad been stolen from the I'eal ov/ner by Xo HSLD^ it was larceny » Tlifi possession of a thief is sufficient to make it a-siibject of larceny aid the title- may be laid either in tlie r. al oyrier or in the thief o - - This case is pDxiin ajii clearo A thief gets possesaion and a subsequent tliief can comr.iit larcer?y from him.. ANONoy po 595o ' X coomitted larceny in London and lyaa appealed in Midiilesex, HELDj the larceny -^as committed in every- coxmty into -\rhi^. the goods were aarrried and son eppeal is -maintainable in whatever county the plaintiff ^^risheso • - ANONo B po '596 a Indi-ctment for stealing goodT in the coxinty of Surrey ^ The deft, pleaded tl^at he ^yas indieted for talcing the same goods in tl-ie county of Middlesex' and was ac- quitted, and that it was the sam3 felony as- this,, ?IELDp this . is no plea for neither i^ourity could-give evidence to tJi« oth«» of a-feloriy eonniitted there in o - ■ ''If' t^' a roo ol Qi noriw V.'O ■Ifi I This case represents th.e ols and sound doctrine that lar- ceny, beinc r^^^ish^GJ^t for a trespass, 'Can only be indicted v/iiere the tal^inc arid the trespass occur. The case decides that if iize deft, is indicted in Surry for Larceny, he cannot plead that he was indicted for the saiae larceny i'n Middlesex, because it could not possibly be the same offence. But the - bar had already ber,un to doubt tiiisrule, as is sliov/ri at the erd of ti£ case, and to think that tl-.e deft, 'could be punished in ariy courity into uhidi he brou£,]ic; tlie goods. The judges in this case, h^owever, recoc^'iized the tr^ae distinction between g.n appeal arid airi indie t^i-ent ; in an appeal the process is different fi'on that in an indictiuent, for an appeal is ari ac- tion to regain the goods arid is brou^lit by the injured party,- arid so he must brirj£, tlae appeal vri.ierever he caji find the goods. But even then the jury is suiiunoned from the courity trhere tii£- r-oods v/ere takerr arid it is recognized th at the larcerry is connitted there. Eut the bar failed to see the distinction betv/een ari appeal ard ari indictment arid their- viev; finally prevailed; so it v/as virell settled in Erigland by "^ the IGth or 17th century that a man could be iridicted for laj>- ceny- in any coiirity i?ito whidi the goods viere brought; however^ it is not a question of where the trespass aiid the larceny - - is connitted, but it is raerely a question of venue, arid the. same lav; is in force all over finglarid; so it is niuch- di-fferent fr-au the i-uie applied in so.riH of tlie states in the U. S. liSX V PROV;£S, p, 597, - The deft, was indicted for lar- ceny in the county of Dorset, The goods were taken in the - island of Jersey, b^at they were foimd in the possession of tl.e deft, in Dorset, HELD, the indictment -srill not lie. The original taking v;as not sudi that the Common Lav/ could take cognisance of it, and in tliat case the indictment will, not lie in tl^e covmty into v/hicii the goods are carried, A mari caririot com^^At larceny by Coimion Lav/ i-n England if he stole tlie goods outside or the United Kingdom, The statute referred to was, that if anvorie committed larceny in the Uni- ted Kingdom, lie -could be punislied in any part of it where the goods were brouglit; but it 7/as ::;eld that the islarid of-Jersey was rjDt-a part of the United Kingdom, but was merely a colony, PEOPLE V GARDNER, p'. 598. Deft, was indicted for ' stealin;:' a horse in II, Y, The origirial taking was in Vt ,', but the dert, was county arid carried to another j, there -aras a felony in eachT Justice Tho.rias dissented. This case holas -that if property is taken in one state arid brou^i-^t into .Mass = there is ia.rceny in Mass, but it is heli in Masso also that if the goods' are brought over from a foreign country, there is no larceny^ The judges try to liken the states of the Uo 3, to the ilnglish counties, >. this is not correct:, because the reason why the taking in one county can be punislied in another, is that it is all one jurisdiction and sovereignty; so in the En^^isli count i-es- 'the original ta- king is puTiished, but the states in the U„ S^ are di'f ferent ■ jurisdictions and a new taking must b'e found in Mass, to pun- ish a mari for larceny there; yet Mass holds that there is no new taking if tl~e goods are brought over from a foreign coun*- try, and tiiis siiars how absurd the rule is., The dissenbistg < opinion of judge Thomas and the case of Stanlet v State, po 605, are perfectly conclusive tlxit Coaimonjea: th v Holder is wrong; there are plenty of reasons fo-r this on accoxxnt of public policy as well as on principle. In some states the doctrine of continuing trespass is followed out consistantly and a man bringing stolen goods from a foreign courttry is punisi.edo Others follow tlie Mass, inale and punish him only TKhen the goods h^ave been taken in another state. Still other states only puTiish him if the original taking occurs in a jui^ isdiction where the Cocrmon Law prevails,, All these ar<3 fourjr'« ded on wrong principles and the only tme rale is 5 that the > larceny occurs arid carj. be puriished onlj'' where the -gpods are taken into possession of the thief., - ^rj ST'AIILEY V STATE, pc G05, Teft, was iridicted for larceny in Ohio, The goods had been stolen by hL.. in Caiiada and broug by him into Ohico HELD, one is not guilty of larceny in Ohio when the property is stolen in a' foreign country- or in another state and then brouglxt into Ohioc SUl.aiARYo One vrhc severs articles from the rea3.ty gets possession, arid this is continued lintil there is an intent to give it up or until soiae one else takes possession; althougjh he leaves the property on the ; and tliis alone does not -con- stitute an abandoriinent of possession - Regina v Townleyo "Fhe theory of continuing trespass is wrong because larceny deals- with one act of trespass only^ and the very definition of lai^ ceny shovis it is erroneous; -so Regina s' Riley -and State v 114 ^ Coombs <^re wrongo Wliero one thief steals fro:a another title may be* laid either in the owner or in tlie thief - War-d v Peolpeo In the case of an appeal whiiti vras ari old action to recover goods arid incsidentally to poj-iisli for larcseiiy, *h'ft veBr* "ue oould be laid in ai'iy eounty into ;Thich the gpOils vr9r« ear«' riedo It was at first held tliat ari indictment eoiaj.d be laid< only in t.e courity -whex-e the goods were taken^ but later it ■was held tluat it could lie in any county wlisre the £.ocdB 'were carried; but there is rio jui'is diet ion, aocordinc to j?ai£,'Lish lav/ 5 for ari acu dor^e outside of the £rifjlis.. doijinior^-s •- Rex v Proves o According to tlie IIo Yo doctrine, if the ^pods-ara taken in one- state, there oan be riO puriisliment in ariothiir on the- ^rouriis of a continuation of the offence - People v Gajpd— ner. But accoitdin^:, to Mass. arii probably the majority of states tliere can be a puriislxient for larceny when tlie £p ods are taken into arother state, otl the yoiirti of th-it roods to tlie deft'so apartments with a viev to ti-ude , Deft, selected soj-^e stockinf;,s and then requested X to bring to hm 50Qds of another kind; X left the stockings aa-id went baek to £,€ b the 'goods but there v/as no positive agreement foi* a sale. Deft, stole the s-tocJiings arid in fact tije whole ti'an— saction was pi*e concert ado H£LD, it was larceni-'. The animus furaruii was formed prior tc the act and' thei^e was no a suffi** cient delivei'y to charige th© possess ion^ The whole question is vfhether ui'edit was given arid Beale thlriks tliere was riot on tliese factso Therefore the merchant- did j-iot give possession as he n^rely left tlie stockings to save hLii the trouble of taking tliera away arid bringiri-g them back again. So the possession v/as talc en by the cleft „ ijhen hia firs-t had the felonious iiitent and he clearly oani'mitted lar*-- ceny, R£GINA V LOVELLs po 612 ^ X gave to deft, e-ome kn.ives to grind for vdiiijh he charged an exorbitant price- X refused to pay BO much arid thereupori the deft., made thi«eats and X paido HELD, there was lirt;enyo The consent was obtained -by force and so there was no voluntary cliarige of possess iono It vras the same as if the cliattel was pulled away frcLi X arid it makes no difference whether the force operates en the will or the body; so tixis is a typical ease of robberyg whicl. is larceny by forseo 115 L^ R£G-i:iA V EDWARDS, p. Cl2. An owner of pi^s vmich had beeri bitten by a mad dog directed that they be killed, and bux*- ied. The jury fourrd that the ovrner l^ad not abandoned hia pro^ pertyj but the deft« du£ them up after they had been buried and cari'-ied them awayo HELDi, it was larceny. Tl"ie property •»/as not abandoned to v/hora soever might take it. If -t; e pic,s had been buried to staty Beale ttiinks they would have become real estate; -but because sane of the sep— vants did not intend to put them tiiere to stay but fixed, th&m 80 as to be removed, this is a sourid argument against, the change from personalty to realty, TIEGINA V HAI'IDS, p, G14. Deft, put into a penny -slot- machine a disk of metal of no value, by means of- which a ci- garett.e v/as- ejected which 'ii'ie def t , appropriated. HELD, it' was larceny . A conditioriai offer v/as here made by the owriei- of th>€ m achine, arid it must be said that the point whej^i. the condi- tional consent vas given, v/as not when the cigarette -was taJeen frcca the box, but v/lia-i it v/as put into the box. it MITCHU].! V STAT'E, p. CIC. The owner of a store placed on tlie counter a box of matches to be used by tiie Public in li£htinc pipe's and ci£,ars in the room, and deft, carried off the whole box. HELD/ it v/as larceny. The ov/ner did not aban- don his rir^-t to tlie matches by placing them in a pxiblic pos- ition, but they could only be used with his consent in a par- ticular way arid in a liniit-ed quaritity; so taking the whole for another use ''Jas a trespass „ The consent was given in advance, but upon a cond.it ion, and it is perfectly legitimate to give corisent to do something in the future after something else has beeri done or after a certain time has elapsed, REGINA V MIDDLETOi:, p. 617, Defto, a depositor in the - savings bemk, presented his book to Virithdrav/ ten shillings. The clei'k by-mis|,ake entered on his book a larger amount and put down the saiie before the defto, arid the deft., noticing the mistake, took the book and the money with animus furandi at the time of takirig, HELD, the majority of the court deci- ded that it was larceny, as tiie- clerk did not intend to give > possession of the monei- to deft, arid there was no consent carii his part. So the property did not pass-and v^ether there is larceny or not depends on whether or not the animus furandi- existed at the n^ment of taking. This case carjn.ot be supported except on the veak ground that the clerk put the money down wi- th the implied condlti-crk that whoever owned it -should take it, and as the d&'SX. dLd not 116 own the whole he eould only take his part. This is Pigott's view and is the view of the preceeding cases, that isj that a corditional eonsent is £,iven in advarice and therefore the>^e is no consent - if the condition is not fiilfilledo But the faets do not bear out this theory aryi the ease is probably wrong en principle ^ although it stands as laiv in £n^ lajTido - ' ' ' WOLFSTSINj, V PEOPLE, po 629 o Defto presented a draTt for payment at a baniio llie telle-r^ misreading the amount. Landed him too much g ardi th€ deft.j although seeing th^ mis- take, took the amount given<, HELDj, it was lareenyo T^ money in excess of that \iiiich he was entitled to receive was tak^n without the owner -s eonsent <> This is thfe sane as the preceedirig case and the possess— ion is given upo Undei* the above eircvunstaruses the- title.-aLao passessj, althou^ the mistake gives a ground for demanding - bads -the moirj^y on tha theory that the payor has beSome a creditor in tumo But larceny is not concerned with title as it is ioeraly a breach of peaceable possessiono SUlvaiARYo The Dominus must be Invitus, and in Cijse of a chsli sale tiie dominus does not consent till the cash is paid, even if ha leaves ths goods' with the vendee while he g^es away for others <- Rex v Sharpelyo A conditional consent may be ' given in advance for a future act - Regir^a v Hands o In No Yo it was held that where a teller paid too much on a draft, the defto did- not get possession of the esces^, on the ground that there was no ©onsa'it --7/olfstein v People « Hut Regina v Mid- dletgin arid. V7olfBt&in v People cannot be- supported on any prin- ciple of possessiori. although they probably represent the lassr • in tlxose jurisdietiorsB o SECTION POlTRo LARCENY AFTER DELIVERY. (a) Larceny by Baileeo REX v RAVEN, po 631o Defta having rented lodgings car- ried asray goods which she had hired with the lodgings. HEIiDj there was no larceny because there was no trespass, as deft, had a special property in the goods on accoiirit of her contract and BO there eou3d be no trespass o This ease is correct^ Such matters as these are fbr the parties themselves to settle 3 for, as there is no wrong-ful ij»- terferenee with possess ionp t}.ie state Is not interestedo ' LEIGH^S CASE;, po 532o The shop of X being on fire, the defto ranoved sane goods in the presence of X, who made -no objectiono -Defto afterwards converted th€m, but at the tin*©- of taking he acted irith no evil intention. HELDj, the deft's^ 117 v.; '>9 -.J ^'X> act was not larceny but rAcrely a breach of trust, KEX V BAIIIIS, p, C.32, Deft, boin-oT/ed a liorse for a spec- ial purpose, and later., ^. when the purpose 'jas accoix.plished, he sold it, buL he had no felonious intent when he took the horse, r:£LD, th.ere was no larceny, as the subsequent felonious conversion did not constitute a new taking, , These' last three cases are correct and represent the law at present, RjBGINA V TFRISTLE, p. 633, Deft., a watch-maker, having been requested to examine a watch at the house of X, arid hav- inj^ declared ti-.at to fix it he must take it hoiue, carried it - off in the- presence of the wife of X arid subsequently appro- priated it, rJZLD, it v/as not- lai-ceny as there was no animus- furandi at the tirje -of taki'Tir,. Se corid case, p. G34, Deft, had repaired arid i-etun-jed the watch to X, but at the request of tl-e deft, x gave it back to hiui '".o further re^vi^te,- arid he subsequently appropriated it, K£LD, it was riOt larceny, RCGIIIA V PRATT, p. G3G. Deft, made ari assigriiiTent of certain personal property to X •oiuonj^ wiiich '.vere the chattels iri question, ard these the deft,- fraudulently renoved after tl^e execuition of the deed. Deft, had remained in possession of the chiattels until taking ard. by an arrancement he was al- lov/ed to tis e th^^n; the jury also fourjd that the- roods at the- tijiie of removal COI.H.IOI'JWEALTH v JAI-.IES, p. 645. Some' barilla was sent to the lififtop who was a miller, to be ground, Def/t, groiind it -- and then kept pai-t of it, HELD, it was larcenyo By tha deft* act the special contract Viras determined, arid tl:e posseselcai thereafter wae in the o/^ner, fran v;h^m the goods were taken animo furand.io This case goes beyond all reasorr as there is no bulk to break in the proper sense of the termo - - - SUI.IMARY0 By ari exception to the principles of possess- ion, when the ©aods are given to a bailee and the btilk is- broken,-iu is larceny - Barrier's Case, Some of the cases 119 ■0 ,\7 in which r^oods are cai^ried to another places may be supported on tlie ground that a conditional cor^s a-it in advance is given; but thtin tl.ere -ffould be '3^rcenyj not when built is broken, but wii.en tl-e i^oocXb are takei^ Wl\ile this principle of larceny when b-ulk is broiien is established on authority, it must be confined to cases where tliere is e real breaking of bulk; but it has been absurdly held in Masso that 'Hhsn a miller kept some of the flovj-er he has £,rourii, there was a breach of the special ccTitract and the deft;, t/(jok poBsession bortiousiy at that time -■ Conr/iorxwealth r James « (c ) Larceny by tricko 7L£:: V P£AR, p.. G4oc Deft« hired a Ixirse of X to go to S, arid then sold it on the same day c Deft, hired the horse merely to cet the same 'into his possession ard. had at tls- tir.»e thfi ariimus furandio M£LDj seven out of eleven jiid^^s held that it \/a s felony at Coimnon Law^ There was not a trespass here arid so the case is opposed to the ti:;eory -of larceny, as there was no disturbance of peao— ful possess ion^ Trespass l^s been allowed in cases of gratui- tous bailtiient where the possessiori cari be taken at once by tlie bailor J but it is corifiri&d to gratuitous baiLnents - at> v/illj arid to s-uci^ al.one are the remarks of Littleton on Po 150 applicable o In this case art attempt is made to r.jake a trespass at the time of takiri£, while in Littleton's case it is tlie later wronf,ful dealing \/idch is the trespass; so Little- ton's iMle does riot help tMs cas^* Neither oj principle or authority was thas case corixict at the t irae of the decision but it is ncv; Isuf e^a-eryv/here, RECtINA V BUNCEp p= G5l/ Defto» a gypsy, by pretending that by supernatural powers rhe cou3.d obtain for X a siam of moneys, ii'iduced X to give her a certain article to be used in her incantation arid to be retuiTied to X; she later appropria- ted the articlco I-ELD, if tiie doft^Sa intention v^as OTily to • get the articD^s t.o practice her art and if she subsequently chiariged her mirid ard. corrverted the things, it was not larceny* But if a iijere trick 'Jias employed to get the coeds and ttere was no iritention to x'eturri tl-.em^ it was larcenye This case shews th'at the doctrine of larceny by trick is still £^9nerally appliodo SI.iITH V P.&OPIiE.^ po Co3, Deftcp by telliri^, X that he;r husbarid h^ad be.?n ai'ixisted arsi needed money to j^et released, induced ..er to £^ive hiia certain cliattels 'to be pav;ned aru to give the money over to the husbarid „ Defto had the ariimus ' furandi at the time 'ard appropriated the £po>?^ to his ov/n use*' K£LD»' it waw larccriVo vr.~*en goods are delivered for a sj^cial purpose custody or«ly j,s given to the bailee arid the owner re— ■ 120 l^ tains possession arid property o If> hov/ever, the owner intends to part with the propert-y and delivers the possession absol- utely, it is not larctnyo The opinion shows the ignorance of tdie court as to the true £round on AirhicL to base t};e lioc^rlrieo In HawkJj'i.s certaon cases are stated which would lead to the inference that the court held in sucl-i cases, that is where goods' are given for a special purpose, the possession does not pass. ' All such are overruled J however, arid are incorrect on theory a SUI.n.IA'RY, It is nav settled tliat where one gets possess- ion by tricJ? or fraud and then converts the property it is larceny; Pear's case in 1779 started the trouble-. The sane, principle was held also in 18&9 - Regiria v Eunce. So also in No Y, in 1S73 - Smith v People o SECTIOI.^ FIVE, TPvAIlSPEH OP PROPiTRTY, REGIIJA v ROBINS, po C55o S, bailee of a oonsi£,no defto offered to set- tle the division of value and told P he would give him his 121 Biriare th-e next day« ? thereupon gave the defio soms money aixL the clefts gave F tlie rinc with the promise that he lyGuJLd. -re-- turn tiie foliowirjrg, day the uoriey uitli other money to be P-s ^ share of the rinco ULLD., the majority of the court h&M it was larceny,, arid that the moriey waa deposited witli dftf&o until half of the value tfas £,iveri hiirij, and that F parted \?itli. pass« ess ion ai;.d not with property,, On th3^ gromid of larceny by trick this and the f ojJ. oud Jig cases cari be suppoirted, but oyl theory there is- no reason for drawing, a line between property and poscesG-iono Hcv/e-ver,, the distinction is nov/ well settled in law j but the incongj^uity of suci. a doctrine is seen from the fact that it maiciis a par- son guilty of stealing, his own prop&rty; but it is no more-in- eonsistent t:\.an holding, that one dc. larceny by triekj but beeause he loakes it aji ar^ bitrary and anomolcus exception to an anomo&cus rule; for i-t* is universally ad);^itted that ].arceny by trick is ari anamoly<, RfiGINA V BUCPU.IASTE-R, p, oG3„ Deft, preteud&d at a race that he was a bookD:)aker^ R in eonsequenoe deposited with him Boiiie inoney ard. was told that if a 'certain horse won he would take back ttiat raonsty and some morCo HJ^LD, it was larce-ny'o Possession only ar^d not proparty t/2.s passSdj as R did not in*- tend tho.t thf? rjropsrty sh'ould pass except in the event of lo*^ sing, which did not occuro A deposit with a stake-holder does not pa.ss to hijn or to anyone else till the bet is -passed, and the stak-e-holdei'' is merely a bailee as-^d the title to the moifiey of 'the winrj&r never passess to the stake -holder nor to anyone else, Beale thinks tlie bo<;kmaker here niay be considered as a stake-holder. al« thoug!.! tlie re was a differance,,- ,' •: as the court thought, . since, the nio?i,ey was deposited -with the one vfith whom the -bet was iiB.de J. and not with the stake-holder e - 122 • REGINA V SOLOMONS, pc CGSo Deft., having appare-itly put 3 shillinp,s in a purse, offered to sell the purse and eo'atents to X and X accepted, but the purse contained 3 haifpeneeo HELDs it was not lairceny as X intended to pass the property in his money o REGINA V RUS^ETTj pc 671, B, havin£, been offered^ hoi'se by '^ie defta, agreed to purchase and gave the dafto 8 pounds in part payment, the balence to be paid on delivery, / sumI ari agi'eement to that effect was signed by E and tie deft, E testified that he did not -expect to £;et his money ba«k again but to have the horse. Deft, did r^fot deliver tl-.e horce and did not intend to do so at the timea HELDj it was lal•^^ny, B did not intend to have the property passsed and i't lid not pass, for "Ghe money was by vray of deposit in daft'so liarids till the delivery of the "..orse» If the case at ba r was a cash sale v^ith a simultaneous delivei'y'j the title of course 'JouM not pass; but sucl; is not the casSo According to the reason of the court that there is no conti^ct aril the fraud of the vendor vibiafces the same ab initio 3 the vendee could not recovei* damages in a civil act i en for a breach of contract; 'buz Beale says tliere ;7as a contract, for although the deft-, may not have intended to performj^ he did intend to pro-.^ise. But the passing of the titj.e does not depend on v/hether there was. a contract or not, but upon-whe— tl^r tlaere v;as tiie intention of passing the title to tha mcsaey If the title did not pass tlie deposit of the moriey ij-ouid laav« to be corisidered as a security; but if it was the intention to make it a security, the payee 'jould ha.'sre to keep the moaey separate till the rest v;as paid and could not use it till theno This is absurd, and s o on the questions concerned both with the contixict and-v/ith the intent, to pass the tit la, the court is \aTongc, S'UTvIMARY, Pear's case is responsible for the idea that v/hen property passess there ie no larceny, but vhen possesslcn oiily passesB there is larceny, on the ground that the possess- ion is taken against the -Jill cf the o-jnerc In Atkinson's case in 179S.^ it v/as held tliat v;here the tit_e was intended to be passed it was not Larceny; but since I.Iiddleton' s case, it is larceny in Englarid if title d.oes not pass, althoutji th^ is an intent to pass- it. The U, S« vroTold probabli^ folj.ow Atkinson's case with vliicli Eea-le agrees, making art arbitrary exception to an arbitrary rule^ In tiie case of Bets, the stake-holder is only a bailee and the title does not pass tiH the race is decided, arid the 'title of tlie vinner's money never passess - Regina v Buckmaster, The case of Regirxa v -Russett ■ffent-beyond all boi-inds in tlie matter of passing title, 123 iV ■-»- V W 3£CTI0M SIX. AIIIMUS FURAflDl . ?\ji.X V Y7ILKliIS01I, p» G74. The prosecutors v;ere euployed by G as cai*riers to pass nux voiiiica tkrourli tl.e oust on house. and. load the same on a ship for export, arid the^^ [^ave bond to the (government 'tliat the £Oods should be exported, Thsy ecr- ployed the d^ft. v<' to convey the floods to the sl:ip, but on -the v/ay, V/, arid ui, to wh.0i.i the £Oods belon^^ed, took out some and replaced theiii with other stuff, the purpose bein^: /to escape paying, interrial revenue duties' placed on the £,oo.ds. 'I£LD, T' and M v/ei-e guilty of larceny, Tiie prosecutors had a special property in the i^oods until they reached the ship arid also ari. interest ii* the possession, and the intent to deprive than of" the '£;,oods a^airist their will v/as a felonious intent a^ against them. The 'bailee l.ere v/as urjder axi ohli^^ation ' arid the act of the d e^t.s « v/ould in fact have made hixu liable, T he defts. nvast have ini-^nded to do -.Thiat they voluritarily did and althoug tlie luotive uay j>ot have been to injure the bailee, they \7ou.d in fact have done so if their purpose had been carried out. An owner then niay be guilty of larceny fran a bailee v/Iien the effect of sucli taking/ is to injure tl:e bailee, whether there is that motive or not. The bailee is entitled to possession arid he is deprived of th^t possession by the owTier's act, PJ2GIIJA V T.V£BST"£T^, p. 67C, H 'sras in possession of a shop in whid. goods were sold for the benefit of a- coopei^ative so- ciety, t:\e riierjbers sliaring profits arid losses. H v/as a mejober and had tlie sole liiariageinent and was responsible for all tlie - money and goods in his possession as such Liarzager. Deft , ,- also a :aeut)er, assisted in ty.e shop, and took some /aoney pla- ced by ;■' in tiie till. The indictmerit laid the goads as the • property of K, HELD, the goods -jere^ correctly laid as: the pi-operty of y, and lathough the deft, v/as a partner, he vsls guilty of larceny, as I' v/as responsible for the goods, SDIMS V STAT-i:, p. G79. S, as constable, levied on the goods of the deft, arid then left than in hei* possession, v/ho before- tl-.e time of saLe, disposed of them. HELD, the goods v/ere properly laid as the property of X, fo'r an officer who -g^ levies on goods acquires a special property. A larceny nay be corxiitted by an ouner stealing his own property if the ta- king be anLno furandi or v/i-th- the fraudulent desigri to ch^arge tlie bailee v/ith tlicir value. '•T.^&n goods are in the possession of the sheriff and tl-je owne-r takes ti.a.;, it is larceny foi- he has no right to -thom- theri, V.hen t:.e sheriff gives the possession back again to-the owner as receiptor, it is not on 'general principles larcerc for the receiptor gets possession. The difficu] 124 '\ty case is not one of anamus but of the taking and the eourtj on the general principle of the rece-iptor getting possession, dfi- citied tlmt a new trial be orderedo But as a matter of fact it is i^eneralD.y he3,d that a reeeiptor does not g,et posoesBion, but has nsJced ciustody only^ and he approaches BOcaeTPhat. to the position or a servant „ If "^lis is the ri£jat ^iev? tl*? astuaJ/- deeicion in this case is ^rong. and its reasoning, breaJ^a down. PiiX V CABB AGEp po 682o ' X was on -iihe point of trial for the larcceny of a horsso DofVo and a ^if« of X took tii-Ae horse an^i ba(«)^e.d It iTAto a soal pito Tha dex'to eontemled ti-jat it was iareeny not ^ as thex-'e ^-as no intey.t trj e^oiivert it to the use at 4he taX-er ananio fur-araii at luai'i tsausao KKLDj it was larceny o The taking is fraudulent wht^n tiiere is an intent tc deprive the wjrrxer of Lis property » ar^ti taking luarl ©aiiaa is not nassRsaryo If the pr©perty is ta:i?en in sueh a ">9-ay that tha power of doDii.nJ,on eser^-lsed by the ta>;er is indc^isi stent with tiie^ eonr* tinuous 3%Qr-^i.B3 cxt the ri£,lAs of ownerahip -by tha I'eai owner, it is l-aresinyo This ease is law in the Uo So es:eept in Indn; th^us If defto liad got th» horse it woiold not be • larceny o KZX V MCRPXTj po 683o Defts*. were sej^yaats of W» "Whose bailiff delivered fraai time to tiios to deft^or '^^^ ^^ ^'s grar^aryy baai:>s to be fed to the horses of Wo Deft Bo by a false feeA tooJc out soci9 beans ^ whitS: tliS inten^^-d to give to th© horses o fTELDg it ^?as larceny as the purpose of the taking is- ia!r.rsitgria4o Suppose in the above caae the serrant gave 2 quarts of grain to the horses ard then went bad? ani gpt aixsth^r; as to the; first S quarts he miver gets possessions as ^e suppose him to be oi'dered to gi-wi saomon lasr irx Bn^land.g but it wa-s later altered 3 arxl it n«'>?®r earne 15) in the Uo So ■ - . _ _ - RSX V DXC.KINSON9 po 684 o Defto took soms art isles of apparel belonging to a girl^ his purpose not being to depriv® - 125 .-7 her u3,t?jnately of themj but -co induce her to go to a meeting place for illicit purposeso KELD^ it ^ae not iareeny-o ■■ R?JC V CRin^IF^ po 6S7o ' Indictuent for stealing, a horce, bridiiBBj Gadiilss,; s-rid a bago Dsfto too}; away all the property together but aj'ter proeeedijni£, socj& distaj-iee turried the horse loose and .-^ai^ried off the r<3 st of the propertyo Deft^So iiv- tent-to i,ake xhe horse was cierely tio i^arry off eonveniently ^ the other ai'ticslsso HSLDp it was not 'i^arceny as to the harse but was as to tJae rest of the propertyo '^JT-GINA y SPTIRGBWIs po G35o Defto t^ok a bae containing papers froca m^ offxeeo HSLD;., if the defto tool? ti\a same "s-ith an Intei-it fe' exaet a .reirarcl from feiie osrn.er*s, arid with a detei*- raination net to f.l-'m thaai up ti22, such reward was given him, ' it mis 'ISiX'CiRSAY'i but if his intention ^s&s to return them absol*- utely SsTui at fjll events p merely t.al?in£, a dianee of a rewarrd being, gl-ijien hisa for pretended ser^l^ep it was not Sarcjeiriyo Merely intendirii;, to wait a '.yhiie to see if tO:ie reiyard ■arill be giv«n is not the anJonus furarjdi required^ but if the intent is t-o feeep the property 'uhiess a reward is offer^dg there Is a, suTfifiient animus furandij for there is ari interfei? anee with the <3W7,v©r"s doaainionj as hs has to buy his dojaiinion- to get it basko 'RSGINA */ GARDNflRg po 6860 Indietment for stealing a chasko Defto took the cheek from a boy \^o had found it, and he did riOt g.ix^-e Irjforaation lffii»ediately to the* ovnerj, but wi"&» held it in the Qjcpeetation of getting a revrardo HELDj neltbey the taJfir^ nor the withclding was larceny Tl-.e finding sf* the fasts in. this ease does not shew en=* ough te provs- Xar-senyy for it is consistent with the firming that the lisfto laterdad to keep It only for a -vinll^ to see If a revsrd be offered;, ard. then to gi-'^^TS it upo As t© la2«0eny from the boy^ lyxB strong argisneint is that if there was not tte animus f"ura;oii.i aga.in.3t the ovmerp there eould hartU,y be saiA' ■ to bft a f£i:k3r4lous intent as to a-thir. the prin ciples o-i 2.a.r>eeny csorisi stent with the statute in axiy particu- lar oas e o R£X V H£.\DG£, po 706 <> X in order to detect the deft^j a servant p- gave U some money to go to X^s shop arid pui'chase. some goo^ii!, Defto 'took the money and kept it without deposi- ting it t-n tl'ie tilXo The defto contrnded that the statute a a to embezzlement did not apply to eases v/here the gooils were in the master'-s possession before beirig deiif-^red to zh.e ser« vanto H.'];lDj it was eanbezzlement , and so a CcnixaOi-i Law indict- ment for larceny could not have been aippoi'tod. Embezzlement and larceny tio not overlap and so the emrreszleiient statutes apply orJ.y to oases which are not larceny j PSCtJNA V CULLUivIs Po V07o Indictment for embe^.zlement under a statute according to whidi it ?/as embezzlement if a servant took that v^^id^ vas delivered into his posses^'ion. "fo-r or in the name or on the account of the master -or employ- er*' „ Deft, was employed as the captain of the ba.'ge of Xj to- takiv and receive oK.ly such cargoes as tie master dtreotedy defto baing entitled to a ^art of' the earrijn.gs arid being under a duty to asf^ovint thejfeforo Defto, being expressly forbidden to take a certain load on a retimi-load trip;, did so siid took the whole of the money so eamedo llELDj it v/as not ecaI->@-J:-,2-le" nento Thsre was oiily an improper us^ of the naster-'S chattels- and the money was not Teceived for or on a»seount of or in the Yia.a's of the db. stero 131 If the eervarit, despite orders, acted for his master,' it vould have been embexz'lement , but here from the start deft, was acting for himself » There was also nxj laroeny of the boat LS there wos only a temporary takin^^ posseBstori, REGINA V BA'^TES, p» 710, Deft, made an assicnmeni; fbr the benefit of his creditorn, arid after execution he received i. sui..8 of iiioricy on accourit of debts previously due him, arid he did not tuiTi tiiese luoneys over to the assiyiees* HELD, it was not embezzlexiiSini; the money as soon as received was his oun erd. he had a ri£;*t to receive it, nor was he a clerj? or sar— vant of the assiyiees. As a matter of law the deft, did hare a le£;al title to claiiijsand having, tilte to the claims he was entitled to tl~e money collected; he v;as a sort of trustee for a trustee, ani a* the time of taljin^, he 'ffs^s entitled to it, but only in trrifft This is thfi kind of jSrabezzlement pujiished by statute as to trustees, bu?t it is not covered by any ordinary statute of embezzlement <, COIvUJOirfilALTH V HAYS, p. 711, Deft, presented his depo- sit book at a bank arxi the cashier balericed tl»e book and paid ovei* the balance , giving tlie deft, .'1^100. toom much. The B''.atute provided that if ariy per-son to whom money or £,oods were delivered, should embezzle the same, he ^ould be deemed to have comciitted larceny, HELD, the deft, \ja.G not £;uilty ujider the- statute as there is no breach of trus^; when property delivered by mistake is appropriated. The point here is that the d&ft., was -not entrusted v7ith any money, and the case is opposed to Middleton'? case, - - - COmiOITWSALTH v BERRY, p, 714 » Deft,, employed as a ser- vant, was requested by one member of a fi-na to take some money to another 5 ard he appro pi*iated tha moriey , HELD, it was lar- ceny and not embezzlement, ... . . , It was not embezzlement but larceny because the money was eiven by a iraster to aservarit and so tlie posseesion did not pass, - ... COLGdOIATEALTH v POSTERS p, 715. L delivered to the d;eft'. 2 of his o*iii. prcaaissory notes to sell arid to deliver the pro ceods to X, charging, a commission, ard. deft, sold the notes ad used the proceeds, HELD, it is far the jm-y to de^id^ from Xb. facts oi* the ea^o whethei? the deft, was employed as a broker - to sell the-noteo in the course of is business arid to mix- th contrary to orders, a servant carried a cargo yith his masters boat, it was held not to be embezzlernert - Regina v Culluino jEmbezzlement is properly a b-reach of trust on the part of one v/ho lias possession, and vriiere one has ''.itle arid violates his duty, ti-.ere Just be a special statute to hoii 1-iim - Regiria v Barries, A servant ^arirAOt embezzle, but must Btea3.'j if goods are given him by his master - Goiiraonsyea th v Berry, A servant cannot embezzle if he has orily the intent to take for a tanporary pusrpose; ard the sanB principle applies in embezzlement as iri larceny in almost every case except that embezzlement deals with goods aftei* possession is taken - People V Hurst If an agent has a riglat to mix proceeds taken with his owri, he is a debtor; while if lie holds the proceeds for Ids priricipal he is an embezzler; Goiiimonwealth v Postero GHAPTSn TKR££. THE ItroiCTAIElT? , SECTION ONE, GENERAL REQUISITES OF AN INDICTMENT / STATE V BHOVm, p, 19, The indictment alleged th.at dfift. v/as a cocmon sabbath breaker and on a cer*tain day kept open a shop and soli go-ods to negroes arid others. HELD, judgement must be arrested. The court must, upon an inspection of the record, perceive the criminal -act, ard if the act can be pre- sumed to be lawful, it will be. Here it was possible to pre- stime that the' sales were made to those to \Aioai it was rjot a • crjme to sell, A criminal act is not here described as it is not alvrays 133 a crdme to sell on Sunday and this is all that i^: alleged here>, /ill elements of a eriuinal act must then be set out biat any matter of excuse or defence/- sueh as insanity, noed not be set out nej^atively in advartceo Notl-xin£, will take -the plaoe of the nec:eBsary al3.e£,ation of fact, not even a £:ener*al stat^- msnt, <, nAIiOW'S CASE, Pc 2Co Deft-, was iridieted in 1829 in Me/, for thaty ha.vinL been urilaT;rfu2.1y married in 1S05 at T^ in Ma&«« he was ijjrJ.a"™rf'u].ly rsinarried at P in 1812 in Me« a£^ijri0t tlie peace of said etate and -the forru of the eta tute. HtSTiT), the indie :rrient. aas defeetlv*eo The o££en«e vas ttoaamitted in -1312 vhen t:.-e laws of Masso had jurisdiction over tl-ie place arJ. when Me o was not a stat/e^ arid it eould not now be diarg;ed as a^airist a statute of Me o 7?hoever eoiiEiits ari offence indict- able by lav7 or statute is c^ilty of a breach of tliG peace qS t:at \o-^ex^iUiQyi'% v/hich-has jurisdiction for tlie time bein^, over tha. place J ard. tJie failure to set fortii in the iridic txaent that whidi- ■was -done a^^ains 'u the poliiic of the eovemnent, is fatal. Here the er-Tix.e ■yas coociitted agjainst Mass* arid so lont as no statute vas pa&sed in I.Ieo clian£,ing the <;rL'-:ie , it woxild b© a crixoft atvainsT llasso It Tyouls- still be charged as a£?iinst l.lass if a statute vas pas sad in Me« setting a penalty but not changing the. ci*ii-"ie o COI.3.:o:TVi]ALTH V PRAY, p., 22, The deft, was iridicted on a statute ai'ii the indictuent contained 2 charges, the first al- leginc, in general term^, that * the deft, at Braintrice pre—- Bucied to be an v/as a ooiiLiOn seller®^ 'usirig tl^s words of the statute; tlie second alleging, tl-^t d&ft» at said V^eyiuouth did eoLiinonly sell to persons urikriown etc The deft, contended that the indictment sliould set forth particular facta- arid also that the seccnd allegatdon vas repu-yiarit to the f ii^t, HELD, tl'.e indictnT&nt vTas good.,. The. general rule tiiat particulars must be set forth has exceptions in cases wliere the orim-e co* sists of a series of aets^ ar^ in suczi it is tl:e general prac- tice and not thv^ particiilar a^sts whicl^ cons itvite the crime. ^ The second allegation is defective because of inconsisfceney of the venue, bi.it it rnay be rejected as surplusage. There are a few except iojal cases where one is puriished fc:'-r' being so.mething and not for dojng soinethirig, and the inr- dir-tment then has to describe hiin as being and not as doing- S0i.;ething5 a;.':.d the facts- need not be set out. The 3 reasons given for .-jertai.nty on po 25 are all good but not of the same Inportant'.e J the Be<.^.ond is riot jjoapoi^-tant arid the 3r is not correct,, as a sec-'ond. conviction uay be connected v.'ith tl:e 1st by parol evidence, T^ifi above exception to the coction pririci— pie that one is to purrished only for v/hat he does applies to > cases of nuisances etc 134 HIRl^T V STATE,' p» 25. A statute piiiiished the sale of' spirituous piquors* The first section describinr the penal offence, had a: iis close the previso, that nothinr, contained herein shall be coristrueJ. to aiake i-t • urilawful to sell spirit- uous liq'aors for x.iedicinal purposes. The indictment against- the deftc did not contain a ner:,ative ave mechanical test for findirif^ out vh^t the crime is, 7';e oriiy test is that all tr:e ele..ents of the criuiB inis'^ be put. in and what tl:»se are must be found out by exaininat ion, COI.C.:ON?v'EAIjTH v EEP.RIGO, p, 27, The indictmerit diarced that the d.ef t o suffered certain persoris to play in a house or on premises in tcie county-, a ;;^aine of cards ab irhich money or prop er>ty was won arid losto HELD, it was defacti-ve as beir^ uncertaino The iridictu.01 - must 'set.fortht ehoffence -with such certairity as to apprise the defto of the rjature of the accu- sation « This is a clear cas« as dert<- does not l?now wi^etl.er he is clTar£,ed with orie or two crimes <, U, So V 0?.UIK3I':AIJICs p» 2S, a U, S* statute provided for the punisiixVient of tJ^se v/ho conspired to injure or intimidate any citizenj with the intent to prevent his enjoyment- of any rigjit granted -him by "che coj-iSt itution -a^id laws of ths U, S» Tlie indictiuent alleg^ed tliat the defto h^d an intent to pi-e-ven't certain persons the enjoyment of every » eachj' all, and singu- lar the several rir>-^ts arid privile-^^es granted, HELDj it was ■ defective for wartt of certainty and precisiono All rij-xts are not secured as given and whether one is or not is a quest ioj - of law for the court.s, arii pai'ticulars s..ould be alleged. Where the defiriition of ari offence iricludes generic terms, it is TiOt sufficient that the indictmsrit d. arge the offence in the sane generic terms as the d-efinition. but it must descend to parti ciilars. There was no statement of any particular ri^it but only of a class to which th£ rigl^t belonged. It is rjot usually - enoug}:: in irtdicting on a statute to use th.e la riguage of the statute whidi lays down general principles; the indictment -is 135 for a particular act arid this must be set out, COLILIOiroEALTK v HARRINGTON, p, 3ic A statute provided tl.a i any person convicted of drurikoruriess shovild pay a fine of one dollai'o It also provided that v/hen sucli pejrson was proven to have been convicted twiwe before for a like offence within a year Si he should pay a fine of ten dollars; and tliat it should not be necessary fo-r coi.iplaint'S uiuier.tlie act to allege sue;; previous convictions* El.e deft« was convicted of drunk— finriess arjd the court ruled that evidence of preceedin^; coi'ivio- tions should be ad.iitted, HELD, '.he rulin;^ -jas erroniouso An offence w.iich is puriisli&ble with a hi^^.er perialty because of fon.ier convictions it not subsianti lly described if tl-e coapjain'; fails to se^ out the previous convictions, "Jhi di are a part of the offence. The proviso releivin^, tlie necessity of such an alle£,ation vra-s void as beir% contrary to the deS? claration of ri^}±.s, ^7hiCi- requires every offence to be de-r scribed substantiallyo This case is t,enerally laviT, althou£>, tliere are soufi cases a— cainst it; if ^ettinc, drurik a thiivl tii.ja is treatd different- ly from tl. e first, i; should be stated, STATE V IIACE, p, 32, Indictment for pur£,ury "by falsely swearing, to iViaterial niatter in a ■.vritiri;^ sic^ied by deft," HELD, tl.e indictnent did rrot sufficiently charge facts neces- sary to constitute a crixne. Perjury is only v/here one who ia required to tell the truth on oath, wilfully swears falsedy to a uaterial matter in a pi-oceedin^, before a le[jal tribujial. Swearing to an exti-a judicial affidavit is not perjury, and the i-rtdict i.ient does riot state enou^-, facts to decide the doubt o This and the preceadin£, case show that the sufficiency Ox the indictment has been provided for by the -constitution arui carin.ot be done away witl. by the lecisla tiuce. The lef,is- lature can do av:ay witi; the require^aents of fon.^ but not of - substance, arid ti.ese 'iast- 2 cases v/ere raatters of substance, STATE V LIcCARTY, Po 3-io l-ndictmer/t for breaking arid enteririg the ho-cise of Jere- iial. 3. Puller The nania of ihe ov;ner was really Jedediali B, F ller,- arid the court of Cona:.ion Pleas allov/^ed t-.e wrii to be ai-ieridedo HELD, a nev/ trial laust be ^ranted. The ai.iendi.ient to the indictment bein^, a uatter of substarice covJ.d only be n.ade^ in the preserice of arid witi. the tsoncurrencc of the Grand Jury, n T:-.is case shoves why defects iri substance are fatal, as no one has the pov;er of alteration except i.e Grarid Jury, arid the Petit Jury passess on the indicti.«rit as found. SUi.LIARYn Gertairi v/ords of ai^ are Tiecessary in tl:e in- dictment; for instance, f eloriiously , The captioriuusi show an indictment rer-ularly fourid by a Grand Jury and, in what court 136 fouTid, that the grand -jorors were reg-ularly summoned, and the place of the-ir sitting. Defects in fomi are as fatal as those of substance, Tl.e indictment niust be certain; all the ele- ments necessax-y to iaake up a criminal act must be set out • fully and acurately, bi;t laatters of excuse need not be. An indictment sho'uld state"- 1, the ri^iht of the state not to have a thirty, done, "a^^ainst the peace of the state*; this is matter of form; or s or.ie t L-.e s the ri^^t of an individual as in larceny, when t..e above general s'tatement as to the peace of the state would not be stiff icient. 2, the criiuinal act, and this is nmtter of substance; the orily exception to tha neceo** city of setting out facts is where it is a crime to be some— • thing arid not to do soniet.^ing, as in th.e case of a 'Cojm^oii sel- ler c 3, t..e state of mind, v/hich is i-iatter of form, 4, if tiie criixie is statutory, it must be alleged to be "against the fomi of the statute". The mechanical i^st as to vhether an exception in the st^ftute must be put in tl-e iruiictment, is, whether the exception is in the enacting 'Clause; but this lyas seen not to the true test in Firn v State, It -is not general- ly enour;. to follow the language of the statute. The leadir»g « principle in this section is that a crime must clearly t^i pear and all tl-.e riecessary elements must be stated, because the Grand and the Petit Juries must kriov they are acting on the sai/ie charge. SECT ion TWO, STATi2.I£NT OF THE CRIl.Iii. 1£X V LEDG-lirHAI.i, p, 56. Infonnation that deft,, lord of a martor, made urireas onab le distres-sess upon certain of his teriants and -so was a coiuaon oppi-essor, HELD, the iridictment was riOt good, Comii.on oppressor is too general ani su-cii gener- al v/ords except in tlie case of a barrator is noi good. Also ■ taking distresses is a private matter regulated by statute. This is lai'gely as substantive Jaw arid riot of pleading, tho'jgh it gerjera.-ly comes- up in tl:is way. There is no crime of being a couaon oppressor, COI.U,iOir.?EALTH v NE7JBURYP0RT BRIDGE, p. 37, Indie imerA stated that X et al were incorporated by the naiae of the pro- prietors of t.-e Mewburyport Bridge, arid by the incorporatirjg • statute it was eracted th^at there sl:ould be a draw 38 feet wide' arid a suitable pier on eacl. side at the di^w, but that. deft, had neglected -to provide such a pier, HELD, the indict— raerit must be quashed. It does not appear except by infei'eriOQ' th^t a bridge had been built , arid irif erencos canriot be mads in criminal cases o This iridic i..icnt miglit be true if the bridge was not' thare arid so there is riotl: irig here, i neons is terit v;i ih irinocence , If any necessary allegation had been incorisi stent wiTih tiie bridge beirig there, it would have heeri good, but there cari be no in- 137 r:-~r ferences cari be drav;j^ iri cri..iinal cases, GOr.i:.:Orn'/i:ALTH v beau, p, 3S, A 3t;atute provided for tlie punisliUient oi' any pci'son ^fho slioul'd iiialiciously bi^eak c_>ass in any building, no'i his ov;n, DeTb , v/as indicted on an averr— laent that r/a malicioucly broke 2 panes of £,lass in a building, noi his own, I-IjBLD, the indictLient vras defective because' it did noii allei^e t.I:st the j^ass was a part of the buildLngo Al- thou^. ihe v/ords of t:.c statute vera used, still, the court in as ceriiainin(_^ ir. 3 ofects co;.iuitied carinot lool; beyonii she 'w» rds of the irj-ictijaent , The statuie, as s--0".7n by the contaxt, was intended io pjiiisl. h.e break i/ij_ of -^las s whicl. '^'as a part of a b^ildin-., and She indictiuent refer '.o £^lasG not a part of one, 'Ve sav; it is not enou ■•- to follow t-.fi 'arords of the stat- utsif tlie;/ do not conclusivoly s iate a crime. If a statute ■ is not clear t..e court can interpret it^ bub ari i-ndi c tme nt can no- be interpreted and uust ba^ tsken as i;. sV^rals* STATE V PkUSSELL, p. 39, I.'ELD, an indie ti-.'ient diarrriri^ one wih. beiji,^ a coi-uiion ^ij^it v/alker is too^> v/iihout allec^ing; particular acts, as the phrase has a technical ..iearxini in law, and hie offence corisists not of particular -jicts bu'i; of a habitual practice, evidenced by a sei'-ies of acts. The habit of i.oin.;^ around by ni ht was considered detri- LiSi-ital and has a ptsculiar restricted „£ai'iinr,; so V..e v/ord de- Biyrxates a cruae. 3o it is seen inderences are not ..lla^-ed in criiiiinal ca- ses, and all tiie essential alle-.ations raust b3 inconsistent < vith innocence. SLCIOh THREil. PA:^.TICU11A.R AILEC-ATIOIIS, ( a ) ITaaie . Rill^r V - - ~ , p. 10. Deft, was iridic ted by -the djs^rip tion of a person -whose naiiie was to tl.e jury urijinown. Deft, when appreherided refused to r^ive any narae and after the i-ndict went pleaded Yiot t'^ilty, but refused to plead by any name. HELD, the deft, uigi-t be indicted as a person whose nai^ao was urdtnown bui who was personally brou£;:t before :he j ur:.- by the keeper of the p>rison. Deft, was thereupon convicted upon a new iridic t/rrient , Giving a naiue is the ordinary way of pointing out a loan as the one broUt,2it before the Grarid Jury arid d-^rged by them • with ari offence for the Petit Jury 'to try, but any oth.er good Liethod besides the name uay be used, I'owever, this latter course caririot be pursued unless the Grand Jury really does tiot 13S kno-.v the name ^ and also if the jury r-iij;J-it have foiOTiJ. out by i-eaBoriable means there would be Tals-ity in tha bill if no naije v,ras sta1;edo Therefore the deft. shorJ.d be alloi/ed to take advaiitaf,e of the fault in substance as cy£ course the in- dictment is coi-x-ect iri fon.i on the face of itj / REGINA V .Jf'::.EP,y pc 41^ '^he indictjiien'; charr^ed the deft, witl'i stealing., 2 rin^s, the piX>r.erty of Jp.les I'enry Sbeiner-Q The proparty '.vas really owned by a person "K\oze nr-^ie was Henry- Jules Sieineis ;-Ti]LD, >;-.e ...iG;i.a..ei' is fatal, "lie nSiiie is here part of t..e descriptio-'i of the pi'operty arvl ihe proporiy proven is no'; shat alio , -3d to be stolen, arid BO u..&re is a real va-ianccc But in case of t/.e deft's nacie there is ri.o variance if his nszie is different , for his nccae is not a part of t..e description as all th^t is wanted is to id-* entify the r-risoner v;it.'.-. tl.e liiari before t;.e Grand Ju^Vj and ' wh£ii. ..0 is at bar he can be iden'jified withov. t a naiiiea Ariy nai.;e tiien tl:at is a part of the description of the offence liiust be correct, and if ri.o~. there is a variance which, nust lead to acqi'.it ial 3, TICGIMA V 'iTlLSOil, p. 41, De'f t , was indicted for forr,iri£ an order for the payr-ient of laoney. The order as set out in the inaictinent was John i'c'Iicole, bu: ; _ii riai^e proven was I.ic- Nicoll, I-£LD, there v/as no variance, as i..e only question is whether tiie court can say thai the 2 riai.jes are so identical in s.jUTid tls<.t a person could not be r.;isled. This is a /elic of ih^e tL.ie xuiqyi t-.e pleadin'^ was oral, and i.-eoretically the deft, ;:,ets knowle'dv_e of that v;ioh liiich ho is charj;;^ed by so an and not by sij.-xti ^GlhA V DAVIS, p. 42, Deft, was indicted for stealing t..a £,oous_o. Darius Chris top-.Gr, but tl.e nax.B was proven to be Tryus .nris.opher, -..e chaiiiuan ruled tha: in Dorsetshire, Darxu. and Triu^ we:.e idai. sonantia, but the -question ^as Aot ^o^w.e jL.ry, yi:LD, t .ere was a variance. This case si.ovs t.-^t idei;. sonantia is a question for tiae jui-y iirU t:^: except ir. a plain case the court canno. decide^ on 1 G 3 GOLhOh-;£ALT:: v pi: -:i::s, p, .s. Deft, was ir^ictad by t..e .a..e 01 T..o.:as Perkins, but his full narne was T:.on;as .-op- kins Perkins, r£LD, the indictraent was bad as t .e rir^.t C.-.ristian naix.e ..vast be ^iven. h-!. .C^o^^''"'"^:^ ""^ "-■'' ^''^''' ^^"'^^^"^ ''^^ t^-'-'en advantage of by t^^'t i -'^^^ ^^^^' '° '^'^ indictraent, as then he has said t.^t he is nou guilty of the cringe described; th.e orxly qu^- tion IS wi;ether he is guilty by wl^atever narae he is called,. 139 3UI.II.1ARY. The n:iine of the deft, is the ordinary raeanc of ideritif ication, but another and efficient x.ieans is g,ood, and a person may be irxdic-ted as "one to ihe jury unknown", if he is brou{^:t before thdnii, Biit if t].e jury kno'.Ts or miLl-t hare found out the na. .e , the urit u^ai' be abated for unknovm luoans , not the be discoverod at t;:e laoiiiOnt by reasonable uieariS o A naivie w..ic.. is a necessai'y part of a crii.ie or which is a pai^ of ihe necessary descx-iption, must be put in correctly — Re»- £,iiia V Jaues. Ari or.Muission \7..ich still leaves 'ihe naiiie idem sonantia does no', de'avroy the indi'Cti;\ent , but '*xis is a ques- tion for thxC jury - Re;:,ina v Davis « The nai.ic of ':he deftg i3 no i a part cf ;:ht descripi/ioji oi' t..e offe.nce but is oni:. for identification and so't..e error of aji o.^u.iissioii is not fatal, A iiiisnomtr of the defto can be talren advarita^. of onl: by a plea -in abai;Oi.ient , a/id after he pleads to t.o indictafint i - is cured, A i.iisnouer in the description of a cri:..e or of ^oois is faial even on a p..ea in bar. Deft, carino'. plead his o'jti riaiiie in a b a ^ era e nt .j (b ) 7L..2 a.' id place, SIR ]l£^n^f yAhi;'S CASE, p, 44. Sir Henry ^^as indicted' for treason arjd t. e iiiue of t..e act vras allet.e-d to be Jiay 30 • Ke was foiLTid ^,uilt- of '-reaso.i l.owsver, on Jan, 30. TilLD, the day laid- was ii.jx-xitorial a/Ki he ...i^.t be fourid ^.uilty oti ano** ti.er day . T.xC case is correct o.iA it is t e sa'ue as pleadin-:, nuuber or tirae in an-- pleading,, RiiX V 1IAP?£P., p. 44c Indictirient alle-^ad ihat the deft. at Liverpool st-ole ^oo^s of X in the dvcllin- house of Y, theri and there bein^,, riELD, t-.e indictment sho-.-/s s;if f iciently ihat the ho^ise was at, Liverpool, and the words "tr.ere sit-aaie" need not be used. SOixiO stateaxiOnt of place is necessary aiid the exac; house described xuust be adhered iOj but zhere is on t..e w.xole a siif- ficient olescripiion of i..e ..ouse, The place is l-ipor^ant as a part of t/.e description ard. must be proved as s-ated, or otl-isr wise there is a variance, STA-'ii V Sinn'ON, p. 45. Indictnien: for assault vi ih in^ tent to kill. The bi...l -w^s found in I.;arc*x 1324 arid c.iir£,ed « the offence -o have been co. fitted in Au^* 1024, HELD, tlie indictment was defective, 1; :.-iUst state t..e offence was com- mitted on a specific day arid year but, except -./i.ere the tine ^ enters irito the riature of the ofTence , t e precise day or year need not be proven; l.ov/ever, if t-.e offeriCe is laid on ari iij- possible or future day, it is as fatal as if no ti^ie iiad been inserted. The ijdictmerit must state a tii.-:e ■a.-id that must be a poss- ible tt4ie or else norie is real_y sta'^ed, 1^ r STATJ5 -v SMITH, po 4Go Deft,, vras indicted for disturbing a meetirig in a cei-tain hundred of tiie cociety of Methodir/tEc HELD, the indj.ctrnent vac Dtif f ieiently certain as to pLaco^, Place or tLue, urJ.ecs it enters into the eriine, is rio': aatei*- ial to be stated or proverio The pj.ace need not be sp Jdf i-'iai— ly laid to £,uard against anot.^er trial, for the identity of '« tv/o cases on a p3.ea of forn-jer acquittal^ is tried, by ihe jury^. COl.i;0'TvV.eAIiTI' v TOLLIVERj po 40 o Indicjttient for an as- sault on X at Eost-on^ but evidence var. admitted to proove an assault at Chelsea,. HELD^ ti:ie evidence -pou d be admitted, as a3i that nfic bat of calus Liads at times wj.tiiinr, 6 months befoiM3 tl-;at date, r;£LD, the evidence should not r^.vo been aJj.iittedo VHxere the offence consists of a sinj^le act time is not mater- ial. . bub "Where it consists of a sex'ies of distinct acts, time is rriateriolo The usual 2Vx«actico is to allege t-.e crime to have been caimitbod ou a certain day and on divers days be-- tv/eeri that ^-Jay EUxd arxother riarx-d; this £,ives la itude to the prosecution J but the tine t-.us fixed canciOt be departed fromo As there v/cu: no connecting word betv;een t.e aller^abion of April 3rd aiid that of wit. .in the 6 monbhs- last pasb^ the evi~ dence must be confined to ti.e da; alle(;,ed„ In an offence with a cent inue/jdo or m any crl-ie '.vhich may be coritinuous, tiie rulv: is tlir, t any occasions vrithin the limits alls .r,ed may be proven j, but that tl:.e prosecution carinot £0 outside; l^ei^e- the prosecution attoLipted to put in a contii^* uendo but failed,; The ii;_e in I.Iass e p that if t..e acts are alleged to be done on a pa^^ticular day nairf^dy the eviiia.nce must be coriined ^o- that day^ is a nari'owirj^. of tlie r?x>^ felonies and misdeoaiiriors were riOt tried together* Tha deiTt* may make application to be tried for one ci:iar£;e only and thea the prosecutor must elect as to -ariiich one he will p]*od9ed > with, but without such application the ehar^&s may b« ^olned^ On account of the different method of trial in. fin£;lajt*d, it is well settled that a count for a felony earu-iOt be jolwad with one for a misdemeanor, nor can th» deft, be c^nvlat&d o£ a misdjeiueanor oii art indictmOTit for a f& or*y, althOU^ih tt was a part of the offence cliaree. In the U, S« the riiXe is exact- ly contrary on both points whether at Coiacxon Law or by statute The Liain facts in this case are correet. The counts In crjuninal proceedin£.s are tlie saue as in civil action, ar4d ore a UiSans of briri£,iri,£;, before the jury a nuc^er of separate of» fences, which are in reality disconnected. So pleas and jud<- gement could be had on each count. So a sentence on Z or more counts ean be ma4£ to taJ^e effect in the futvire if it is ex** pressly stated that one is to follow the other, as otherwise one could ooccmit a crime and ti^n continue to c<»xciit others and escape puriishment for the last. But when no time is merr* tioned the sentences must, all be considered to begin at o nce^ And the prison keeper has ^o option as to when he will consd~ der the sentences to begin. As a matter of course, if deft, • is tried on ari indictment for felony containing 2 or more counts, they can be separated on motion, but if no motion is made his right are waived; the usual, way, however, is to have a number -of indictments but these may be jojned on motion by the state. In misdemeanors this separating and Joining is not allowed as a matter of course but lies in the discretion of the court , / s COiaiONWilALTH v TUCK, p. 62, - The indictment in one courit charged shop breaking and larceny, HELD, when 2 crimes are so necessarily corinected that they may, and when both are ooci- mitted, must corxstitute but one legal offence, there is an exception to the rule that 2 or uore crimes cannot be charged in Vcie sarne count of an indictment. Such crime's are breaking arid enter irig with intent to steal, and stealing. But even if duplicity exists, tiie objection is cured by verdict. The case is clear, Althoxigh the matter ougiit tP be sta-^ ted in 2 covrnts perhaps, and would be ienc;e,. But iri the 'J,, S^ the deft^. lis ■/ iMJle except ioi-iS for n/iaost any reason and if they are allo.yed he may be tried a.£ain5 as by iiis request he v;aives the risl.t to his defence of beinc, i^i jeopardy before, COMI-rOrnVjIAI.TH V LOUD, p. 72- On aji ina.tctment for l.ar--' ceny deft <, offered to pi^ove a prior conviction for the fiame • ofl'ence before a -J of the peace and that he l^d fuiful'.i.ed the sentenciG , FELD. siish conviction constitutes a bar ':o ili is iri-' dictraer-.t , althourh the- proceodirit^s before tl.e Justice \7ere errcneors arid ""...e de77t,, oould liave had the judeemerit reversed on error; yet it is a principle of (rrinina'l lavr that a JuJ^e— ment cf rpai.lt y on r/roceediri{^s , e.'.L-Azoa[h erroneous > is i^ood till ir. is revergedo BR-^iTiT/C: V P.EX)PL£,., p^ 74, R and 3 others v;ere indicted for r;;urde'r,^ .?.nl R v/as 'convicted of uion 3 !!vau{_h t e :■ arid the rest of raixrdero They all raoved for a Yi3\f trial \v>J.ch va^s gmnted, and on "Jhich ail four were found guilty of uurder^ '-'iiLD, R was ii„properly tried the second tL.ie fcr murder-. Kis convic- tion for liiarislau^nterj which was le caD. under the ird.ictment as the £,reater includes the less, ai.io i nted to an a.cquittal for murd.ei'c His jrot.ioa fcr a nev; trial-; as his acquittal was ne- ver waived.^ ruust be rs£:,arded as extending, or-ly to the d-;ar£,e • on ',/hich he v/as convicteJ; therefore bein^ put on trial a se- cond, time fcr tlie off'snoe on \;hich he v/as acquitted, 'was beirjt; put tv;-ice in jeopardy. All the deftc asks is that the for-rser jeopai'-iiy be set aside as to that for which he was convicted, and t..e fortaer jeopardy is d is re guarded only so far as he 'asks it may be. The same pr-inniple applies to cases v/hsre >iieft„ is convicted oti some cova'its in an indictment an'^' is acquitted as to ot.iers, SIMV.ONS V U,. S,j pc 7G , Lurin£, the trial of the defto for a capital crime the fact was brout^.t to the not itre of the court that orsj. of the jurors had sv/orn falsely that he had' no acquaintance witr. the deft.. The c;our-;; d,:l.schaF£;ed the jury, HELLj xt is withiri the discretion of tiie court to dj.-5ch3.i-i;e the jury vmerej irom all i;he r;i.i-\'.i;;a'r,tar.ci.eB.. there is a mani- fest fo?--- the a^'.t or the ends of jiibtice woulU- be otherwise defeated,: Def i. ,. , not navin^; beeii then artquitted or convict-ed may be tried a^ain without beinc p''^'^- twic-.e in jeopard.y, SUfvO.lii i-y , If i^ri irjiiictnient is iiasuff icient^^ ■any-^tJoa-r-Lc-'^ — 14? I tioni, or acquiital upon it Is not a bar to a subsequeni trial* The defto be^^ins to be in jeopardy T^hen the jury is ejopajielled arid he is bi'0U£;.t to the bar and dnar£,ed; after that, ujtless he consents to stoppiric it, the trial uust lo on, witii soiae exceptions; without tlie deft's« consent :*he jury may be dis^ charted:- 1, upon disa£ree.uent , when all hope of a fair agree- nent is at an end; 2, when sOi.ieone of the jury is prejudiced; • 3, when a juror is ill. It is held that a convic'-ion for breach of the peace be- fore a magistrate on the corifession or infoitaation of the of- fender, is not a bar to an iridictment before ti-ae Grand jury; • this is not supportable on principle, ar4.d if the justice has jurisdiction, it should be a bar, A conviction for a felony in Jlri£;Larid cari be set aside orJ.y by v/rit of error for defects in the indictaent or on the record; bui dn the U« S. the deft, may have exceptions for arty irregularity, Althouj^h the deft, is not in jeopai\iy if the iridic t-isrit is defective, yet if he waives the defect arid takes judgecuent , such jud£,a2ient is a bar ro another trial. Yfhen the deft, asks for a new trial, it is orily as to tlr.e charges of w..ich he was convicted arid not as to those on vd-icli ^.e mis acquitted, arjd so he car^j-xot be tried aLain on tl.e latter* SjSGTION T\TO. IDEiriTY OP 0F7£1JC£S. VAiro£RGOLlE'S CASil, p« 73, Defts, wore tried arid acqui- tted on ari iruiictuient Ci*ar£,in£, tliem wit^h bur£;lar:>' in breaking and entering, a i-.ouse ani stealing, coods. They were then irr- dicted for burglary in breakiri£, arid entering vd. th an intent -to steals Plea, outrefoi'S acquit, HELD, such acquittal was no bar to this indictment, Uriless t^.e first iridictxiient is sudi t at ti.e prisoner tiit^l.t l:3ve been convicted upon it by proof of facis contairied in the second -indictcient , an acquittal on the first is no bar to the secorid. The evidence -supportinc, t.':e second indictaient would not support the first. This case is an i^jportant decisio/i on t:-.e law of burclary as v/elj. as on indictment; it slio'.vs tl^t there are 2 kinds of burglary - first, breaking, tiJ. enterint^ v/ith intent to coQiiiit a felony, and secons, breaking and enterin{;,, and stealing; in the last 01 these there may or raay no'", be any dntont oi' any kind concurring with the break ir^t, and entering,. If t^*is dis- tirjctio.x did not exist this case co-old not bQ supported, but- as it does exist, acquittal- or conviction on the one is no bar to a trial on t;.e other, Tiex V PLANT, p. 79, X and Y were Indicted for tl^e mur-- der of P, .some of the courits chaBgin^ them with being joint ■ principals, arid other counts charging- X with the murder and Y as being present, aiding and abettirig, x was convicted on tlie indictment and Y was acquitted on the ground that the evidence 148 only showed Y to have been an accessory before the fact. The prisoners v/ere a£ain imlicted, X as principal arid Y as an ac- cessory before t.^e fact, Y pleaded his acquittal vmier the ■ foriuer indictmerito H£LD» Y' s acquittal is no bar to the pi*e- sent indictment. The case is clear« Ari offence coiit-iitt'ed as a p.'incipal is not ari offence cocxaitted as an accessory o REGIIIA V CALVl, p» 80« Deft, vas indicted for an as- sault ./it:, intent to kii:., arid the jury acquitted hii-i on tlie ^rouTid iljiat there w-as iiO iritent. Or* tl^e preseni/ indiuwaeiiu • for taurder t..e defto pleaded his foruiCracquit tal, HULD, it is not a Lcx^ plea. The acquittal for the wiiole offence i's orily ari acquittal for the w:.ole arid not for every pai'u of it« So the defto laay stili be fourid r^uiity of \/ouridiri£, arid to sus- tairi t e present iridic tiaertt , it vyould no be necessary to p prove an iritej-tb to kill, but oriiy art intertt to iriflict an in- jury darig^erous to -ife and v/hich resulted iri death. The former verdict set-tled as a fact tl-^t there was no intent to kill but tiie deft., cari stili be convicted of murder because luurder i.iay be cocmitted in certain cases Yiriti-ioub any EUd. iriteritg REGINA V MORRIS, p. 82, -Deft, was convicted of an as- sault upon L arid vas L-^prisoned, L afterwards -died arii tr^e deft, is now iridicted fcr the :.^nslau,',hter of Lo Deft, plead- ed his forner coriviction, n£LD, t:.e iviajority of t-.e court held tl'iat his plea "sras no bar as a new oiTence arose on the deat., of Lo At present' art assault is a necessary ingredient of murder arid if t..e deft» is corivicted or acquitted of assaiilt he can- not after.vards be convicted of any crime of whidi the assaulti is a part arid a pardoi-i for t:.e assault would be a bar to an indictment for Lairder, It uakes no difference whether the 2nd irjdictnient is for a {;,reater or less offence, as the only quest iori is wh-ether ari eneeritial part of t-.e nev/ c/iar^^e is i*es adjudicata, Vm.IYSS V HOPKIIIS, p, 8G, The daft, by striking a horse which v/as ridde 93 c Iruiictnient for cmi^ezzjiing soiae ore .'c oat St, ^^1:6 def-t* had boeri berc..-ci tried arid acquitted on an iudi ctu^QriC I'or eixfoczzlin;^ ..-ia'-Gi^ials used in uaicin,- such ovei-coatso TLe laaborials liaJ been delivered to ti.e ieftg to make into overcoats and t:-.o&e :..ado wero returned to i.-.e owier, who redelivered the^ to deftr, and l.e then embezzled them, H£LD, the former acqv.it :a v;as r^ot a bar. The 2 of fences were separate and Gvidence offered to sustain one v/ould nj: be sup^ poried by evidence offered Vo Eus':ain the ot-.erj T/.a test of' identity is \t.et.-.er the dcf t <, i-.i'ht have bGQ.iL convic":ed on one indictiuoni by proof of facts alleged in the 2ndo , and it is no i sufficient :o sa. thie facts are the sa^.^Cj bui the question is v/rx£thcr sue. facte are so alhe^^ed as tc consi ituia the saire offence e ■'/here there is an acquit -al on accourit of a fatal variaric in the 1st o indictiuent or because tnere is a misdescription ixi it, there xrcy be a subsequent trials althourh it is realJIy for the saue ofL'ence., SUIillARYo If an exxential part of t-.e offence cLiavied. is Res Adjudicata, the indictuent caririot be sustained; bat ari irr- dicti^ient for bur-.Iary in breaking: and enterinr^ and stealing,, • is not th^-i saiae as burr,l-i*y i^i breaking ^^^id entering jith aii inter. t tj co.i..i; a felony - Varuiercorub ' s Case; also an acquit- tal for csL assa.-.lt v;it,, intorit to kill is not a bar to a^i in-- dictsient for .::arder, but it .ras h.eld erroneously in Rex v horris that a p^iriiGhuicrit for aji assaiC; sLaplyj without an irr- tent to kill, v.'cs not a bar to an indict;nent for ...urder \7hen • the victL.. died^ So if tha sa.-.c act constitutes tvo crimes, one is not a Jx:r- to a conviction on the other - whai'e an of- fence is contrai-y to 2 statutes puras^^in^ the san-te thing,, the state i..ust elect uhid. one to take - '^fer.iyss v Hopkins; the test to be kept in a^ind is :hat or£ injury to the state can be punished but once although the i•es^^lts rjay be spread out; foo*- instance, sliootinr, a bullet tl,;.rouf:h 3 iiion is onl:.' one „iui-dero In the U, Sc a conviction or acquittal Tor any p'a:."t of a felony is a bar to a subtic-querit trial fov-^ that felony o 1. '■ OBT/il.IIIIC- PKGP£1'I'-V BY PALSfi PIE^iillTG.ES , SECTION 01I.e. TTIE QUSSTIOil OF TITLE. Rr.GUIA V ]:1LHA.;, pc 7iS o Deft. b. pretending thai he was sent by a custOiOfier of a livery stable Ijeeper to gat a - liorss-.for hiia,, had a horse .i for some reason it does not pass. SjSCTIOII T"'0o PPXjPH^.TY, REGINA V ROEIIISOM, p, 721, Deft, made application to the prosecutor., who had advertised 2 huj-itinr, do£,3 for sale, arid by pretending he kept a man servant ir^duced prosecutor to send them to liimc They v/ere sold and deftc was convicted uri— der a statute for obtaining goods by f3.ase preteix?3es. HELD, • dogs are not subjects of larceny at Coumon Law a-nd were not - chattels accordirig to the wording of the st tute^ Tliis is a clear case for in Fo P, the requisates are tha same a» in larceny- that is, so far as applicable,, PEOPLE V THOI.IAS,- p ,- 722c Deft, was convicted for ob- taining money uj-jder ?„ p, in an indictment^ which charged as follows o Th-at deftc falsly pretended to J, that a negotiable riote which Jo had given-h.ini arid which was due had been lost, - and- Jo thereupon paid the ar.iount , HELD, the conviction on the 152 indicti-ient vas ^i-on';;,, for it v/as not evident fi-oi.i the indict- x.ient tliat C sustained aa;, dai.ia^eo A TaXse repi-c santation by • whicl. a iLian iaay bo cv'.-ieated into doin;^ a duty ib . • v/iil-^in tl:e staiute^, noi" did the indie ixuent merit icn the subsequent ner,o— tiation cf note by deft,, [■ere J apparently v/anted to pay t:.G dobt arid t^.e repre— serit^ition \7as to have J efx'ain fx-o.-. oskinj;, t"Oi' ti.s note and theiSy it iax£i\t be argued, was the sols object of the pretence Suppose a vendor delivers {^oods to tne ccrrier and t;-:G vendee becomes irisolvent, '"..e veridor then ^oeo to ti.e oarr-iar to £-€t back his {^oods and does so by repr-e-jent inj, that he is thn verir- dee,. Beaie says it is riot a crime ^ Veridor h£ui one \7ay to g^et his £Oods legally and because he obtadned thjC-./j in ariother way, false.; it is tclo':. £,ettin{^ theia by P, 'P r. for v/h3re a r^jan has a - ri^t to propei'^ty iri orie v/ay arid gets it in onothor it is not crixninal,. STATS v B ACKj p, 723 , Dext „ desit,3'i--diy and by faXse' pretenses v/ith intent to defi-aud obtained board and lod^-inCo KilLD^ that he could not be convicted uj-ider a statute VJhich punished t..e obtair/in^ in -such a narjrier of "i.ioney , g,oods •- ~ and o'^ihei:- p.'-operty^g Eoar^ and lod^^in^^; is ri.ot v/ithin the- • terras ,. Sue. c-ariTiot be certairily and definitely described in the iridict ei.it n„ he Beale thinks that a boarder c^ts on.ly a ri{iit to eat — that is J to destroy so nrac. food. If so iitle never" paasess except to v/hat is ^aten, arid afier bein£, oaten it is not a subject of larceny. SECTION TVRZEc THE PRETEIIGL. R.CX V GOODHALLj p, 725c Def t o app_ied to X for r^ocxls, but v/as refused credit. However, orv his pr*CLii3e to pay on delivery/ the goods x/ere sent to hirio Defto lu"d no intention of payir^o HELDj that deft., vas net c"-i^-ty of obtaining roods by ?o Pc It \?as merely a pra:;tise for future conduct whi'ch coxrtaon prudence wouJ.d-have fo^'eseen and prevented injury. This tsa^e is iaportant as showin£, a fiondauental princi~ pie •• that iSi, a representation of a presnt f'atrt', rict a pro~ mis^ as to future conduct, is necessary for F= Pe 1EX V Y/AKELIrIG, pc 726 o Deft., having been ordered by everseer of the poor 'to f,o to work, conteruied that he sould not for 'lack of siioeso Overseer fu^^nished him vfith a pair, but deft, had two pairs already obtained from the parisho HjEL-Dj Defto was riot guilty, -The- stateuerit v/as ra'ther an ex- cuse, for not woi'king thari a P, p. to obtain goodso It is the obtaininr: by ?<, P^ and not the use of them vl-ic; cons ii f"'Ut esa cii'luoa '^.LX V BA'^JTARD, po 727. Deft, v/saririr^ a coilsse cap arxd tovm, an^ having falsely stated tLat he ^as a ccllot;e student ordered at a ^lop of V bcclcs whicsh trere- not stippliod arid book*- Bt-.'aps which v;ei'e si:pp2.iodo :-i;LD, Defio is cT-'^iltyc If no words had boon used t^.e cap and £,o-vTn 7;ould h. ve been evidence froii. -Jhicl: the ju;.7 could ir/fei* that i.e ^7as pretending, to be a B'iudent and if so it vas a ?, P» within il.e statute. Pretences uay be uade by actions as well as by voivlsa RLCxlIIA V I, ILLS, p, 727, Deft, \';as eiuployad by X to cut chaff at a certain price per fan, Defto took soui3 fans al- ready cut' ajid added t;.e;.i to his o'./i-i, then derna^ided pa.,T;Ajnt far the -iihole. X s-av; tl-e act of deft, but i^ade the payment', ' Ei:LD, that defto ■i7as not t;ailty of obtaining money by F. P. li is necessary t..at the false representation is the laaediate iiiotive Wiiia. acts on the Land- of tlie pr-osecutor ajid induces hiij to pax-^ vith his property. If propec-ty is not obtained by the false pretense it is an atteiupt only, :ifiGi:iA V BRYAN, p. 729. Def t . falsely pretended to X a pavTribrcker that certai.n plated spooris, which ho offered for a pled£_e, were equal : o and had as ..luch silver in tl-?en as iilkinj^ ton's arid tliat t.l.e fo'uridation was of best material, X was thereb^y induced bo advarice money in exces-s of value of the spoons* K£LD, by th-e uiajority, that deft, v;as no; £,uilty of obbainin£^ floods by ?. P., because the article v/as of the spe- cies tljit it was rspregei-ited to be, biit tho sta:, extents of tLie d-3ft. wex*e i..ere uisrepresentatioris as to ihe quality. It is - like an exa^^^eration as to quality by either vendor or vendee to so-ll the :^oods for i.iore or obtain theLi for less -'thai-i tlieir value. li vas FilLD, b'y dissent in^ judf^es that deft,' v/as guil- ty. In each case it is a tesi v:l,eLher it was a I", P, by whidi property wa's cb:ained ar«.l whether there was an intent to cheat ar»d defi-aud, ""he stateiuents of tl^ prisoner ::ere i.iattors not Oi" opiriion, but of fact, iveryonoone knows ^hat exh _. -/a^^ant ?:':ate.aents will be made in a sale arid one \fiio does it, does so witl.out any idea of beinj,, dishonest, but merely as' a trick of trade. The w qviestiori for us is - did ■t:.xe Jefb. ^ake '^.g statement to be relied upon arid witl": the interit to deceive, T::is ques;ion- iViUS'i be ariswered by ihe j"aiv aiid is iiOt a matter of laiv , hence the case is wront,ly decided, '^..ere is no reasori, Beale-says, w?.; a false siate^ient -as to realitv ...ay riot be to obtain b:' - I". P. as anything else. Cf cou'-'^rt -..e Tact tliat statements were -ade in tlie course of trade -/o^Cd lead ihem to view such staie:.ier/-i;s as -iere pviffi^-i^, •.■/•itl.out ri-f-.er evidence to diow the opposite, 154 i cCiS^INA V ^0S;7^ jj', 7^"^^ De^ic gave ;^ -lar-^pTe oJT tihefise to >: JUiCl ''alsa!^.'/ r-ep-.--c gen-red it tcr bo taken from che'ese \.'hic'h had just b^^eri oponsl and. whlt-h dafto offered for- 5-;a7.e,. •■^h^^ re- prei^ontatiori vas os^.e by secrsteli" 'diarigfaig the r-axop-lob.-, v.pon 'vVhlch X tioted: and boug^.t' tho cheese c ILKLD, It vr.& obtalrxirss money bi' J:',, Po The F, P.^ of a ava-tter c-f fa-^t 0Oep?J,;i8.bl,'='. by the-?;ense?. i« f'/hat is i.r/.d.ic»,tabli e : Thiu oav'v' is not oppcrsoii to Er-yan-R O'ac.'ft,, but t>ie pirin" cip-l-'j Hn;'. reav^onir-iT v/ouXd apply to that ;;»-;© 3 RJ^GilNA V RAGG, p., 739, Def t c off o red :;o gf^Xl X coaX "whifih hy aGserted to be ;;. eertair.'. kird .^nd of a uertyj.?! "A'ei.gl:^ Ooiil was-: so arr.Hnged in. the cart as to appear mor-s thrin It was 2nd Z pu.r'.'l;i,aF.6d en the fjtaternentB oi" tho defti.. TI-.s ■scvrfi was of' a dj.;?ferent }jlnd and -yas lees in. "SJoifch't tjLDj. it was obtadrjing money binder Fo Pv REr;iNA '-r JMNISON, p. 742, Deft, -epi^osenttjd to X thi^t 'he ■sas an U2::rnarvi(-;d iaaji. and pi^etenA^id t.>ia.t he V3.s about to roari'-y lior,, indueejd hsr- to give- h.?lj:n nionay /ix-taiciing to U'SCi it in f"urni£ihing a house fni' thera,, KSL D..- d&f t j is guilityo Thare was a varlze .t'epresentaticn of faet acof;i:.r.panie.d by 3<5rv"ei^^ iaJ.se pronlseso A faj-se fact by means of which money is ob»--> tain?':;-.' 33 sio''.fi. c OOMMOOTEA]jTH v DREWj p. 744, Deft, opened an ac-eount with a banJ: under the asBiomed name of .Ari.a.ms; sf ter- a mjmr.er' af deposits and vithdi'awels he pi-esenterJ 2 (?her..b"R ^-hr-n h.'? fc^.d. no fiin.ds on dspord. t ajr'.d the checks "5?^-r« paid.N hL.?.LDj de.rti,, ssas not guilty of obtairing money by F:, Fc 'TYid niSSiUmpt ion of ti^ false r..a.xve ac'jordirig to th® piroot had. ix' iivPluen:i-e in r^^i^ycrxsg tjie money-t, The pretend.ing-to open a regular busi.ness aesoxint being accompajxlsd by no false repFei?Gint3.tio.n had Illcewise no iiLt'luonce . aYui the presentation of tiia 2. che rikB v?as a rasre re- quest to p-ay a.rul not a F. representation that thei-e ti-erc fiifids on deposit c, 'Suppose th^-5 ca.se of art overdi'awn check given to a third persono The giving of the ahecvk is a sto-texnent tl-^.t there are (not will be) funds in the bank to mest it . And or. this view if A gave out after bariking hours a check for $2.00 c when he has only f-ioo/ in the bank to meet it., he would be liable o- Thf) rule ir. that if at the tims the cheyk is ma«is out, the owner had no intent to defraud- there is no crime,, But this does not settle the question as to what 'id a fairse repr-eoantar- tionj for- it n)a.kes it tvii^i on the' intents Beale agree? srith " thi?; c^^^K on "i-Aze ground that dsf t , was a oiustomar o.f tii« b^aJCo 155 li they j:;av3 in^ii o^.v inciiey it nxas-r- l:ava beeyi thjit they re'i.vsd upon hie '..redit.. It ^Tra-.a i-eqiiest to -^ay -aa usual ami 'hf-> barJ^ pai'.U Tho .?l:xecK di'l not imply to them 1>ha'.. ther^ w^i^^j _ furids in. th& ban.^ •, V/heri a check Ib t.'J-*'^'^^ "f- '^ thii'd pe I'sovj. or in f)3s;e a oheoA oi one bank is presented tc anov-hei'-, i^j' m cace a o. t ■..':■,- is pi-esented to a hr..r<.k ivhoro thes-e arc- no funikf^ on depooi^^ there is no r-cXiaijC 3 en thi.^ orodi-i' o." a i^ustcjiioaro comic N^^SALTI-: V NORTC]^', pc 7C0. Deft, fals.-ly pret&aded to prosecutor that he had the day beior-e ^iven a five doll'ir bill I'n payinent for 2 dririkr. , but that X did' not retur^n air;.y ' chanifje • rro'je-cutor paid thiji- smo-ant' demanded c liE:/!)^ the (.teftp Vif&s not- rai.ity\, It was a vrilfuJ, false aff lrma.tion mada to -a party who had ample me ran s of k.nov/inr v/ht^thei' the aTfirmatlon was ti-Lie ox- f aj..i:^e o Th Ir; (3Hse i, i nob iavT oiitgide ot? Mo-f'Dv The idfta o;f tii-i: ' seller \ei:i;.; oliiiifed to proLoot hirnself is r;.et f:ood lair. Usually Zi~:i ne^^i i^em^e' of bhe defrauded po.i-ty io overlooked; for tliat ir. jjx*iaatei'ial, OOmiOTTOSALrri V 'ffllTCOME, p. 751,, Defto falsely proten-^ ded to a i;lej:-£.yma?i tiat he vrara pastor at a certain plice a.i'wi. • was of ^.rcat need of money since he had been robbed.. Ho v/a's thiereupon £,iven money,, HELD, tlie statute includes caseB '^herQ money is par-ted witi-i as a charitable d-oriation. The purporj-e^ for which money is given i.s inimaterial. The j,ose o.? an expec- ted return amount-s to notliing.. it is the givin^^ up of pi-operty tbx-T t i c! ijjipo rt a nt „ CC)I.IMn]srHa"^.ALTH V HA?J:IIIS, Po 7'f>i3„ Deft, falsely represeja/- ted to tiie city of Lynn th-^t h» was injured by -defect in th® • street and 5.howed an iri lured foot axui ari]<:le ; The city was - thereby indiK^ed to have a judg.eraont in a suit brouf/ht -for :i.n" jury by daf t ,, entered agrainst thG,tn and paiij. the amount ,, H.&'LBs Deftc. IS not guilty sinv.'i there is' no Ie{;,a'l i-rijurir to a j;.^:cty- who pays whai; ba is obliged i.;o pay. The Fr. P.j was i.ise-i to procure -the oorisent c^' the city that jujge;iisnt be rendere-i for the dc-I't\-, and tiiig jtidgemerit was ccnslusivo evidsrice that time amount Kas owedo It was hold by the minority that it was ira-^* dictable for a judgement is conclusive evidc-jnoe on.l7 as to tibe parties -privy thereto and wou.lii not concsern th^ Coiianonwealchj- a stranger-,, The jud£,enient 'A^as only a raeanei to an end ami- it. would be -a question for t.-h'ft jury whether thfr:^ l<'c ?^ -"iVHt''e -aii i-Tir ducement to pay the money.; It is publifv policy that 'yhen jud£-iraent has been ^iv-^n in a (!ou.rt ajxl one bfe'-'iom/iri obliged to -pa^ it- Ph.-ul-d not. be iaJ-csn up i'l anothe:r (jourto In other T?ords one cannot be co.ns-id>«reci as obcainine money by F, Po when he ie under -obligation to pay by a decree of the u^ourt^ Beale thi.nks it ovight to be coriBi" dered that aifSer j'adeement tliere was a tacit continuan.-io of the representat ion„ On general gr-ounds the ininority sas .-r.oi^ 15G terscl it iti a ^r;"!i.orai pi*ij-...ciple that one cannot £0 behind it c • It Hho'j:.'...d iivajji no dilTorence hovf bh& judgement is oblrq-.ined.^ the aniount ghoul/.-v be p.jidbe wausp it is (^ue -by tne h':.d:y:c ^®" cvee o'r the csour-t ^ SUr/iMARY. Sect'ion Ono <. I'^ulse Pi-etsno.-T, deais .;ith pro perty,^ -5j.(f''. iJOsaei'S ion^ A-.; in laL'ceny ther^ rnusfc bo ohei n/;.itniiB f urar;.-,. U The wGid '"'obtain'' ru&ans to d«pj-iv9 owner -of doxGinion Barrov/iri- a horse by F^, ?.-/ is not obto-ining and so tberre rni'Su be Gi* Intent "feo 'pans litle.. Sectioi/. Two-. The r.ubj';c;t mat'ioi' in &his Oi'iirte wi^.-^t be the Banie a.-^s in. lai^i;xtr\y. that, is- as i^i R;C£;iny. v Robinson./ deft was not gtiilty ivf obtaining O-c^,?. b:' Fo P. ■".Thenever deft,, £-ets possession ■.d.' goods or money in a f rc.ucuj.Gnt way vhid-i ]r:s has a loral ri^ht 4-. o , • obt::^^ in-anothor way, there 13 no Fo P^^ '-> People V Thomas r. It' musf-. be' a -preteiioe as to an exietinj^ Pact an:?'. >-;ot. ? promir>e J 'I'he 5^ P^ nruslt be niade uso of to obtain t^ooda '■• P.ex V Wakelinj-., The i'', P, may be made by acts or si^/is.as v/'ell as by -woixIb ■- Rex v Bai-nai'd, A falye statement of reality may be a Fo P, of (juantityand the question is ror the ^iinr to dBcidffi whethier deft, iiiade a statement vi th intent to deceive,. P.ex v Bryan,- We must distinguish betv.reen sucn statements and "puf- fing" vmich by the babits nnd custouiS of -,.an]-ind is aliowa.d, • If one false repreyent^.tioTji is fo.und even thotigli ascoh'ipa.niif;d ' by a fa-lse promis'e.,;, it. is suffisient to sustain an indie tmaffit, RegiJia v Jen}ij.sf>n., • In zme check cases tj.e re is a diffi'juitj in fi.miri.£- the F,. P, and so it has generally been he3d that it tuiTis on the question of' intSntt The negligence of t.hf2 (.iefraudcil part-y i-s overlooked.; Tne Mass case whifh d.«oided. that it was i-ict F. P.. w.lien \ pretended B had not given him the right change, is nou hcJd tc be law in the 1" i \xx- i s d i c t i oris ? The -pvarpi'se foi* w'hicAz money is obtained is i aimaoerial ••• Oom--^ fAOnwealth v W.hitcombc But when money is obtained, by a falsely obtained .jndgerji3'.,et J. t is helctj cj the gi-ou-rids of public poli<3^ that oYni should not go beVilad it,. The pretence must not be too rrnxotej, as where -a professional sv/invier obtains ?. ticket to an ajiiatoui' ^contest. 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