^1 %ojnv3J ^5M{UNIVER% ^lOSANCflfj-^ ^OFCAllfOff^ ^OFCAIIFO 3AlNfla\\v* 4 *^^ so I ;MN,i:',rv ^llIBRARYQr^ ^VUBRARYa^ %om. iF .'*,\I|C,'!C,. Hr^ ^OJnVDJO^ «?Aavaan ^^UmmO/. ^IIIBRARYQ^ ^\Vlllt^lVtR% ^lOSANCtl @ ^ ^^CAllFORfc fCAllFOffij. .5JrtEUNIVtRS/A avIOSANCEI S Q 'J a V :^ PRECEDENTS INDICTMENTS; TO WHICH IS PREFIXED A C p.JN; G J S E, \ RE A.T I ^ E ' 'rprtiN' THE OFFICE AND DUTY OF GRAND JURORS By DANIEL DAVIS, SOLICITOR GENERAL OF MASSACHUSETTS, BOSTON: CARTER, HENDEE, AND BABCOgK. 1831. .i^v JU ft Dpi/S' f Entered accordiDg to act of Congrete^ in Vha yeai li!3I,'bf'Qarter', Fer.dee, & Babcock, in the Clerk's Office of 'ho Tistrii-t Court of Massachusetts. rVMBRIDOT: : E. W. METCALF AND CO. PREFATORY REMARKS. The following volume is intended to furnish a more extensive and complete collection of precedents of indictments, than has hitherto been contained in any one ivork upon that subject ; and to reduce them to as great a degree of conciseness and simplici- ty as may be consistent with their correctness and validity. In the forms- herein contained, the obsolete language ; the ancient but unnecessary technical phrases ; and the superfluous prefa- tory allegations and averments, which are still retained in the English and American collections, have been rejected. There is no reason why they should continue to lengthen and incumber the records of the judicial courts. It seems singular, that the best and most modern compilers of these precedents, should retain allegations and averments, so long since exploded ; and, at the same time, carefully note the authorities by which they have been decided to be unnecessary and superfluous. In rejecting this unnecessary and superfluous matter, care has been taken to refer to the authorities upon which the improve- ment has been adopted. It will be found, therefore, that by pursuing this course, the precedents in this collection are more concise and simple, than those heretofore in use. Yet it is pre- sumed, that every thing has been retained which can be neces- sary to their validity. There is no better reason for retaining the obsolete, and, in some instances, it may be said, the exploded langua2;e found in the ancient forms in criminal processes, than there would be in retaining the costume of the age in which it was vi PREFATORY REMARKS. first adopted. After the highly important example of the British government in improving the criminal code of that nation, by abolishing some of the most shocking principles and rules of their ancient common law relative to certain crimes and offences, It would be particularly proper and appropriate, to abolish the strange, and, in some instances, the sneer-exciting language in the forms of process used for enforcing them. It has been suggested, and it may probably be true, that there is no work, either in England or America, which contains a com- plete collection of precedents of indictments. Chitty's collection is extensive and valuable ; but the work which contains it, is voluminous and expensive ; a great proportion of which is made up of English statutes, and precedents founded upon them, which have no force or operation in our country. The collec- tions in Starkie and other modern compilers, are evidently incom- plete. The same may be said of Tremaine, and of the collec- tions in the Crown Circuit Companion, and Crown Circuit Assist- ant. Mr. Wentworth's work may be considered an exception to the above remark. But its immense size, and the appalling length of his forms and precedents, render the use of it inconven- ient and laborious. It is anxiously hoped, that this undertaking will meet the appro- bation of the profession. Many of the precedents were drawn by the author, and are original with him. Most of these have been drawn in cases which have occurred in the course of his official duty ; and have been sanctioned by the courts before which they were returned. The book might have been increased to double its size, if the course relative to the prolixity of the forms in other similar col- lections had been pursued. It is a fact, that the forms in most of the English precedents have been substantially, and it may be said, verbally, the same for several centuries, without alteration or PREFATORY REMARKS. vii improvement ; and have been thus transcribed and transferred from one book of precedents to another, down to the latest pub- lications upon the subject. They are, moreover, loaded with numerous counts, apparently varying from each other in nothing material ; and of course protracting the precedents to an unneces- sary and unreasonable length. This inconvenience, not to say reproach upon the forms of proceeding in criminal prosecutions, has been avoided in the following work ; which is the result of thirty years' uninterrupted official experience, acquired under the advice and correction of distinguished judges and professional friends during that period. The law relative to the duty of Grand Juries, particularly as to the mode of conducting public prosecutions before them, requires to be explained and better understood. This mode is somewhat different in different States ; that which is stated in the following concise remarks, particularly as it respects the duty, rights, and manner of conducting the examinations by the public prosecutor before the Grand Jury, is the same that the author has pursued during the whole period of his official intercourse with them ; and in reference to the laws and usages of the State wherein the duties of the office have been discharged, have been found not only to be liable to no objections, but to contribute greatly to the despatch of the public business. The concise remarks and ex- planations upon this and the other subjects prefixed to the prece- dents in this volume, it is hoped may not be without their use. *^* The quotations in the following work, from Chitt. Cr. L. are from Ryley's Edition. The references to the pages are according to the English Edition, which are preserved in that work. The quotations from Starkie's Cr. PL are from the London Edition of 1814. CONCISE TREATISE UPON THE OFFICE AND DUTY OF GRAND JURORS. The institution of grand jurors is one of the most ancient which we derive from our English ancestors. It is known to have existed for nearly a thousand years; for we find that so anciently as the reigns of Ethelred and Richard the First, the mode of electing the grand jury was altered and regulated.^ The institution, therefore, must have existed prior to the reigns of those monarchs ; the former of which commenced in the year eight hundred and sixty-six.^ A statement of the history of grand juries, in the time of Bracton, is given 3 Reeves' H. E. L. 133. In the time of Bracton, in the reign of Henry the Third, the presentment of offences was by a grand jury of twelve, returned from every hundred in the county. But that practice had now received some alteration ; for towards the close of this reign, at a com- mission of oyer and terminer, besides the return of an inquest for every hundred by the bailiff, the sheriff also returned a panel of knights, which were called the Grand Inquest. The 1 1 Chitt. 306 ; Co. Litt. 115 b ; 4 Bl. Com. 302 ; WUk. Leges Angl. Sax. 117. * He was brother to Alfred the Great, and was killed in the year eight hun- dred and seventy-one. 1 2 OFFICE AND DUTY OF GRAND JURORS. inquests for the hundreds still made their presentments, as in Bracton's time ; and also, no doubt, found indictments. But these were confined to iheir different hundreds. The grand inquest was to inquire for every hundred in the county; and if a commission of assize and nisi prius were silting, they filled the places of jurors in civil cases. When the practice began of returning a grand inquest to inquire for the whole body of the county, the -business of the hundred inquest must naturally decline ; till, at length, the whole burden of presenting and finding indictments devolved upon the Grand Inquest, and the hundred continued to be summoned merely for trying issues. There can be no institution, designed to co-operate with the judicial powers in the detection and punishment of crimes, more perfect than that of grand juries. It is one of their most important duties, however, to protect the innocent against the groundless and malicious accusations which are too frequent in a government where any person may obtain and pursue a public prosecution at the expense of the slate. The character and respectability of this institution may de- pend in some degree upon the mode in which its members are selected. This mode is different in the country of our English ancestors, from what it is in New England. The municipal institutions in the two countries may account for this difference. In England, the grand jury are selected and returned by the sheriff of the county. In our country, they are selected by lot, from a body of the most respectable citizens in the several towns in the county, whose names are kept in a box, which is called " the jury box," and from which the grand jurors are drawn. The statutes prescribe their qualifications, and the man- ner in which they shall be selected. Long experience and ob- servation upon the subject authorize the assertion, that this mode of constituting the grand jury is unexcepfionable. The mode of making this selection in England, above alluded to, has heretofore been as follows.^ A precept issues either in > 1 Chitt. 310 ; 2 Hale, 153-4 ; Bac. Abr. Juries, ^. B. OFFICE AND DUTY OF GRAND JURORS. 3 the name of the king, or of two or more justices, directed to the sheriff; upon which he is to return the number required out of the whole county ; that is, a sufficient number from every hun- dred, from which the grand jury is selected.^ By this mode, the grand jury is composed of members selected and returned, at the will and pleasure of an individual officer of the govern- ment. This is a power liable to abuse and evasion, and was the subject of complaint fmd parliamentary interference as long ago as the reign of Henry the Fourth.^ It appears by the preamble to the statute of the 11th of Henry the Fourth (420 years ago), that " of late, inquests were taken of persons named to the justices, without due notice to the sheriff; of which persons some were outlaived ; some fled to the sanctuary for treason, and some for felony, by which many persons were indicted who were not guilty, by conspiracy, abetment, and false imagi- nations of other persons, for their special advantage, and singular lucre. ''^ The selection of a grand jury, by a single officer of the government, cannot be the best or safest mode. If the possi- bility of evasion or prostitution of duty may be supposed to exist, the means, which an unprincipled citizen can employ to effect his object, may be resorted to with greater facility where one person only possesses all the power to act, than can possibly exist in the mode of selecting the grand jury in the New Eng- land States. From long experience and observation it may be safely as- serted, that no body of men, designated to exercise important powers and functions connected with the judicial department of our government, have been more respected, or concerning whom die public opinion has uniformly been more favorable, than the grand jurors, selected and organized according to the laws and usages of our happy country. ' By a late statute of 6 Geo. 4, c. 59, the laws of England, relative to the qualifications aiid appointment of jurors, have been revised. — See Collier's Analysis. 2 2 Hawk. c. 25, § 23. 4 OFFICE AND DUTY OF GRAND JURORS. In the following remarks upon the Office and Duty of Grand Jurors, I shall state, First. Their number and qualifications, as required by law. Secondly. The mode of selecting and summoning them. Thirdly. The course of proceeding after their appearance in court. Their oath ; its nature and obligations. Fourthly. The right of challenging grand jurors, and the right of the court to instruct them as to the principles of evidence. Fifthly. The mode of proceeding, after the grand jury are organized. Sixthly. The nature of the evidence to be submitted to them, and the principles and grounds upon which it is to be received and decided upon by them. Seventhly. The right of the grand jury to compel the at- tendance of witnesses. The finding of the bills. Sic. Eighthly. The amendment of indictments by the order of court, and the consent of the grand jury. First. Their number and qualifications, as required by law. The grand jury must consist of twelve at least; and may con- tain any greater number, not exceeding twenty-three. There must be twelve at least ; because no bill of indictment can be found, unless by the concurrence of that number. And there must not be more than twenty-three ; otherwise there might be an equal division, and two full juries might disagree in opinion.^ It is clearly settled, that by the common law, all persons serving upon the grand inquest, " must be good and lawlul men " ; by which it is intended, that they must be citizens of the state in which their duties are discharged.^ And it is also setded, that no person wiio has been convicted of an infamous crime, such as 1 1 Chitt. 306, 311 ; 2 Hale, 151 ; Hawk. b. 2, c. 25, § 16; Bac. Abr. Juries, A ; 4 Bl. Com. 302. 2 2 Hale, 155 ; 2 Hawk. c. 25, § 16 ; Bac. Abr. Juries, A; Indictment, C ; 1 Chitt. 307, and other authorities there cited. OFFICE AND DUTY OF GRAND JURORS. 5 perjury, forgery, conspiracy, &c. can be permitted to serve on the grand jury. And if a man thus disqualified be returned, he may be challenged by the party accused, before the bill is pre- sented ; or if it be discovered afterwards, he may plead it in avoidance, on producing the record of conviction on which the disqualification is founded.^ But this objection ought to be made by the party before his trial ; odierwise it may be doubt- ful whether he can be permitted to do it afterwards, unless it can be verified by the records of the same court in which the indictment may be pending.^ It is also necessary, at common law, (and doubtless by the statutes under which the grand jury are summoned.) that the persons composing the grand jury should be inhabitants of the county for which they are returned to serve. ^ The foregoing remarks upon this point are founded upon English authorities. But the question has been settled in the case of Commomocalthv. Smith, 9 Mass. R. 110. The words of Seivall J., who delivered the opinion of the court in that case, are, " Objections to the personal qualifications of jurors, on the legality of the returns, are to be made before the indictment is found ; and may be received from any person who is under a presentment for any oflence whatever, or from any person present who may make the suggestion, as amicus curiis." In a subsequent case, however, of Commonwealth v. Parker et al. 2 Pick. 668, Chief Justice Parker suggests a doubt, whether it would be safe to adopt the above remarks of the court in Smith's case, in their full extent. His words are, " We have some doubts as to the correctness of them in all cases ; and the case in which they were made, was determined upon another point." ^ See the authorities next above quoted. 2 Hawk. b. 2, c. 25, § 27 ; Bac. Abr. Juries, A ; 1 Chitt. 307-8 ; See also Gord. Dig. p. 730. — There seems to be no reason why a conviction, in any court having jurisdiction, should not be considered as a disqualification, as well as that in which the indictment may be pending. 3 Hawk. b. 2, c. 25, § 16. OFFICE AND DUTY OF GRAND JURORS. The qualifications of grand jurors, as they respect their property, character, and residence, are, in the United States, as in England, regulated by particular statutes. In a concise treatise of this kind it would be inconvenient to insert the stat- ute provisions of the several States upon this subject. They can be referred to by all who have occasion to know them. Those, however, of the state of Massachusetts, and of the United States, and several decisions upon this subject in the courts of the United States, will be referred to and stated. By t:.e statute of Massachusetts of 1812, ch. 141, § 2, the qualifications of jurors are pointed out. It is therein enacted, "that the selectmen in each town or district in this common- wealth shall provide, and at all times cause to be kept, in their respective towns, one jury box ; and shall, once at least in three years afterwards, prepare a list of such persons, under the age of seventy years, in their respective towns, as they shall judge well qualified to serve as jurors ; being persons of good moral character, and qualified as the constitution directs, to vote in the choice of Representatives.'''' By the constitution of Massachu- setts, chap. 1, sect. 3, art. 4, " Every male person, heing twenty- one years of age, and resident in any particular town in this Commonwealth, having a freehold estate within the same town of the annual income of three pounds, or any estate of the val- ue of sixty pounds," had a right to vote in the choice of Rep- resentatives for said town. But by the third article of the Amendments of the constitution, these qualifications are altered, and others substituted. This article in the Amendments is as follows. " Every male citizen of twenty-one years of age and upwards, (excepting paupers, and persons under guardianship,) who shall have resided widiin the Commonwealth one year, and in the town or district, in which he may claim a right to vote, six cal- endar months next preceding any election of Governor &c. or Representatives, or who shall have paid by himself, or his parent, master, or guardian^ any state or county tax, which shall, with- ' There is a singular discrepancy in the wording of this article, in the case of persons under guardianship. In the former part of it, persons under guardian- OFFICE AND DUTY OF GRAND JURORS. 7 in two years next preceding such election, have been assessed upon him, in any tQwn or district of this Commonwealth ; and also every citizen, who shall be by law exempted from taxation, and who shall be in all other respects qualified as above men- tioned, shall have a right to vote in such election of Governor &c. and Representatives ; and no other person shall be entitled to vote in such elections." The qualifications of jurors, as they respect property, charac- ter, and residence, ..are fully pointed out by the above references to the laws and constitution of Massachusetts. In the case of United States v. Burr, i. 37, it was decided, that where the state law fixes the number of grand jurors, the Circuit Court is governed thereby ; and that if there are deficien- ces on the panel, they must be supplied by the by-standers. By this decision it is understood, that the right to return jurors, de talibus cii-cumstantibi(s, may be extended to grand jurors. But this does not appear to be authorized by the act of the United States of September 24, 1789. The direction to return jurors de talibus circumstcmtibus, there contained, refers to the trial, by a traverse jury, " of civil and criminal causes." ^ It may be doubted whether any court can exercise the power of ordering grand jurors to be returned from the " by-standers," without legislative authority for that purpose. In several States, this power is ex- pressly given in the statutes regulating the mode of selection and summoning the grand jury. But it cannot be exercised in those States where the power is not thus given. Secondly. The mode of selecting and summoning grand jurors. The mode of selecting and summoning grand jurors is regu- lated in the several States, by statutes for that purpose ; and in the tribunals of the United States, by the act of Congress estab- lishing the judicial courts. The most usual mode of selection is ship are expressly excepted from the right of voting. In the part here extract- ed, any person who shall have paid, by himself or his guardimi, any state tax &c., shall have a right to vote. The appointment of a guardian presupposes, in all cases, either minority or some other disqualification. * See Gordon's Digest, Art. 956, p. 143. 8 OFFICE AND DUTY OF GRAND JURORS. by lot. In Massachusetts they were formerly chosen in the same manner that other town officers were ; and the same persons were usually selected for a succession of years. The common law authorities, and British statutes upon this subject, have little applicability in this country.^ The usage in England has varied in different counties ; in some of which, two full grand juries are summoned for the same court. This mode of summoning double the number necessary, and then selecting the panel from that number, is entirely repugnant to all our theory and practice in regard to the institution of grand jurors.^ The mode of selecting and summoning grand juries in Massachusetts is provided for in the statutes of 1807, ch. 140, and 1812, cli. 141, to which the reader is referred. By the act of Congress of September 24, 1789, § 29, the mode of designating juries is provided for, which act, so far as it relates to this subject, may be found in Gordon's Digest,^ to which the reader is also referred.^ Thirdly. The course of proceeding after their appearance in court. Their oath ; its nature and obligadons. The course of proceeding at the opening of the courts in this country is substantially the same as that at the assizes in Eng- land, with the exception of reading the commission of assize, oyer and terminer, and nisi prius.^ Proclamation is made for those persons who are returned to serve on the grand inquest for the body of the county, to answer to their names ; and if it appear that a sufficient number are present to constitute a grand jury, tlie oath, prescribed by law to be taken by the grand jury, is administered by the clerk of the court, in the presence and by * 1 Chitt. 310, 311. See ante, p. 2, where the mode of summoning the Grand Jury in England is stated. Bac. Abr. Juries, A. 2 See Collier's Analysis of the Criminal Statutes of England, containing a late statute of 6 Geo. 4, c. 59, in which all the laws of England, relative to the qualifications and appointment of jurors, have been revised and condensed. 3 Gord. Dig. Art. 9.5.5. p. 143. * See Collier's Analysis, ubi supra. 5 1 Chitt. 313, 314, and the authorities there cited. OFFICE AND DUTY OF GRAND JURORS. order of the court ; previous to which the clerk prepares alpha- betical lists, from the returns on the venires of the names of the persons returned as grand jurors. The court then cause the two persons who stand first on this list, to be called and sworn ; and after this, the others in succession, as they are named in the list, in such divisions as have been usual, or as by the court may be deemed proper. The oath is then administered, in the form prescribed by the statute,^ to which the reader is referred, and which will be particularly referred to hereafter. The charge to the grand jury is now given by the court f whereupon they retire, under the care and charge of one or niore officers of the court, to be organized as the statute directs, and to discharge the duties of their office. They first elect a foreman, by ballot, and notify the court, by the officer appointed to attend them, of the person thus elected, whose name is to be recorded as such foreman by the clerk of the court. The fore- man of each grand jury is expressly authorized, by the statute of IMassachusetls before quoted, in the presence of the attorney general, solicitor general, or county attorney, to swear any wit- nesses, to testify before such grand jury ; and it is made his duty to return to the court by which they were impanneled, a certified list of all witnesses so sworn, before the grand jury shall be discharged from their attendance upon the court ; which list is to be filed and entered of record by the clerk thereof. The form of the oath usually required of a witness, to be taken before the grand jury, is as follows : " You swear, that the testimony which you shall give to the grand jury, relative to any matters ||l||, and things which may come before them, shall be the truth, the W whole truth, and nothing but the truth, so help you God." This mode of procedure, relative to swearing the witnesses by the foreman of the grand jury, and a list of their names returned and recorded in the court, was never practised in this State, prior to the statute of 1807, c. 140. But all witnesses, to' be examined before the grand jury, were, before the passing of that act, sworn » Stat. Mass. 1807, c. 140, § 14. * See the excellent remarks upon the performance of this duty, 1 Chitt. 312. 10 OFFICE AND DUTY OF GRAND JURORS. in open court, upon the motion of the attorney general, or public prosecutor. No record was ever made of the names of the witnesses thus sworn and examined ; and of course there existed no means of proving the fact of their being thus sworn and ex- amined, but in the recollection of those who had knowledge of it. The object of the legislature in this change of the mode of swearing the witnesses, and perpetuating the evidence of the fact, and of the names of the witnesses, is not expressed or indicated in any part of the statute ; but this object undoubtedly was, to furnish and perpetuate legal and competent proof of die fact of the swearing of the witness, in all cases where it might be necessary to prove it ; and most probably with a special refer- ence to prosecutions for perjury, committed by witnesses in their testimony before the grand jury. The form of the oath of a grand jury, prescribed in the statute of Massachusetts, of 1807, c. 140, § 14, is, in substance, and nearly in words, die same as it lias been in England, for several centuries. That which is administered in succession to the members of die grand jury, after the two first, resembles, in a striking manner, tlie substance of the one used as long ago as the time of Bracton, in the reign of Henry die Third. Our form is, " The same oath which }our fellows have taken on their part, you, and each of you, on your behalf, shall well and truly observe and keep." The form of a similar oath in the time of Bracton was, " The oath which John here has taken, 1 will keep on my part ; so help me God and these holy Gospels.^^ ^ Prior to the statute of 1807, c. 140, the foreman of the grand jury was appointed by the court ; and the whole oath was ad- ministered first to the foreman ; the commencement of which was made conformable to the then practice in all instances where the foreman was appointed by the court, viz. " You, as foreman of this inquest for the body of this county of S., do swear, &tc." And the oath, subsequendy administered to the members of the 1 3 Reeves' H. E. L. 133. The form of a Grand Juror's oath, as used in the English courts, is given in Cr. C. C, p. 11, 6th Ed. I find no otlier form of it in any of the vyritors upon criminal pleading, fiom the time of Tremaine. OFFICE AND DUTY OF GRAIfD JURORS. H grand jury, was, of course, made conformable to it, viz. " The some oath which your foreman hatli taken, on his part, you, and each of you, on your behalf, shall well and truly observe and keep." The nature of the oalh, and the duties and obligations it im- poses, are very explicitly pointed out in the words of it. " You shall diligently in([uire, and true presentment make." The meaning of this branch of the oath can be nothing more than that a patient and impartial investigation shall be besfowcd upon every subject properly and legally submitted to the consideration and inquiry of the grand jury. It cannot extend to any inquiry, or to any matter whatever, not within their jurisdiction ; that is, to nothing but the evidence brought before them, of the crimes and offences committed within the body of the county for which they are sworn to inquire. The practice, not uncommon in some parts of the United Stales, of bringing forward, in the form of presentments, what are denominated public grievances, relative to the political or moral slate of the country, is altogether extra-official, and may be and has been adopted and pursued for purposes foreign to, and inconsistent with, the nature of the institution ; and perhaps it is not too much to assort, that the opportunity has been used and |)erverted to party purposes, and with an intention to produce an effect upon public measures and the public mind. When- ever this shall be the case, it is to be considered in the same light as any other usurpation or abuse of the judicial autlioritj''. It may, with the same propriety, be exercised by any other branch of the judicial power ; by the court, or the traverse jury, as well as the grand jury. " Of all such matters and things as shall be given you in cbarge." The practice of the court, to instruct the grand jury in the nature of their duty, by what is called ihc .chni-ge, is very ancient, and comprises a full and clear definition and descrip- tion of all the crimes and offences of which it is their duty to take cognizance. It also conveys to them the most important and necessary instructions as to die manner in which their busi- ness ought to be conducted, the nature of the evidence to be 12 OFFICE AND DUTY OF GRAND JURORS. submitted to them, and the rules and principles upon which it is to be applied. The ofTonces, which the grand jury may make the subjects of their inquiry, are not, strictly spcakina;, restricted to those which may be enumerated in the charge of the court. Some oftences may have been committed during the session of the court, after the grand jury have received their charge, and before they are dismissed. In these cases they have the same right to examine and present them, as though they had been specially directed concerning them, in the charge of the court ; and where an olTence has come to the knowledge of any of the body, it is their duty to communicate it to the grand jury, that such proceeding may be had as they may think their duty re- quires. A most important injunction, in die oath of a grand juror, is that which imposes upon him the obligation of secrecy. The words of it are, " The Commonwealth's counsel, your fellows', and your own, you shall keep secret."^ Secrecy is not only consistent with, but essential to the nature of this institution. It has been held that the true object of the secrecy required is to prevent the evidence produced before the grand jury from being counteracted by subornation of perjury on the part of the defendant.^ The obligation to preserve it extends to every transaction which takes place in the presence of the grand jury, and cannot be violated without a flagrant breach of the oath. This violation is a high misprision, and a finable offence.^ It connects and involves the duty of the juror with the interest and safety of the government, with all the other members of the grand jury, and whh his own responsibility and conscience ; and it is a duty which a citizen is under the highest obligation to discharge, faithfully, and with a good conscience. Notwithstanding which, it is one of the most common occurrences in the history of grand' juries, to find it disregarded. It is proper, however, to add, that this evil arises generally more from indiscretion, and want of con- ' See Hawk. b. 1, c. 21, § 15. 2 4 Black. Com. 126, Chrislian's note (5) ; 1 Chitt. 317. 3 2 Hale, 161 ; 4 Black. Com. 126, Christian's note (5) ; 1 Chitt. 317. OFFICE AND DUTY OF GRAND JURORS. 13 sciousness of its pernicious consequences, than from any criminal design to injure or betray the interest of the government. The following are some of the pernicious effects of it. As soon as the decision of the grand jury is made, in a case pending before them, if it be against the party accused, the fact comes to his knowledge ; and he then has an opportunity to abscond, if he is held by recognisance only. Another common and serious result of these hints or direct communications of what has been done, is a knowledge of the testimony of particular witnesses ; to counteract which, the party accused offers odier witnesses for examination ; and thus the institution is converted, from a tribu- nal for the purposes of accusation, into a jury of trials, and affords a strong temptation for subornation of perjury.^ Although the grand jury are instructed, that their proceedings are always in- tended to be ex parte, it is often difficult to convince them, that when their oath enjoins them " diligently to inquire," it is not \\\fiw duty to hear all the evidence that is offered them. The effect is often equally pernicious in another way. When the party finds that he is to be indicted, it is very common for him to bring forward a counter prosecution against the complainant, and require that it shall be examined before the grand jury are dismissed. It often requires all the vigilance and authority of the public prosecutor, to defeat these impositions upon the justice of the public ; and it is known from experience, that they are often the consequence of the careless observance of the oath of secrecy, in some member of the inquest. The act of divulging the secrets of a grand jury would not be so unjustifiable, if it affected the personal responsibility of him only, who commits it ; but it is an act, which not only betrays his own secret, but is an essential injury to the government, and to the w4iole body of the inquest, by frustrating the most important objects of the institu- tion. In order to prevent injuries and abuses of this kind, it is a principle constantly given in charge to the grand jury by the court, that this obligation of secrecy is perpetual, and that a ' 4 Bl. Com. 126, Christian's note (5) ; 1 Chitt. 317. 14 OFFICE AND DUTY OF GRAND JURORS. grand juror cannot be absolved from it at any period of his life. Nolbiiip; in tlie administration of public justice can be more ra- tional or salutary than this principle. A violation of it may be the means of producing dangerous and violent animosities through life, among those who may be alFccled or injured by it. The remaining part of the grand juror's oath requires no par- ticular explanation. It simply binds him to a faithful, impartial, and conscientious discharge of his duty. " You shall present no man for envy, hatred, or malice." That is, you shall dismiss all the meaner and baser passions, when you assume the important and sacred obligations of deciding upon the guilt or innocence of a fellow being. " You shall leave no man unpresented, for love, fear, favor, affection, or hope of reward." That is, you shall guard yourself against all deviations from duty, to which you may be tempted by a partiality for friends, relations, or associates ; and above and more than all, against the allurements of a base reward. The state of society and morals in this country seems to for- bid the possibility of a premeditated and wilful violation of this oath. Of all the situations involving public trust and confidence, that of a grand juror seems to afford the weakest temptation to official infidelity. Yet there have been instances within the observation of those who have had the means of knowing, where the frailly of human nature has yielded to the influence of private or partial motives and feelings. But these instances, perhaps, have arisen more from the frailty than the corruption of the in- dividuals by whom they may have been indulged. It is most generally true, that when a man is called to give an opinion, or decide a question, which nearly interests his friends and con- nexions, his mind is prejudiced ; and if he errs, he may be for- given, upon the ground, that " he knows not what he does." Cases to which these remarks apply, are not unfrequent or unknown. The time of service of the grand jury, in this country, is different in some respects from what it is in England. There they usually serve the whole of the sessions, or assizes.^ But 1 2 Hale, 156 ; Williams J. 1 ; 1 Chitt. 314. OFFICE AND DUTY OF GRAND JURORS. 15 the court may, in their discretion, order another grand jury to be returned and sworn. Tliis is practised in some cases ; namely, where, before the end of ihe sessions, the grand jury have brought in all their bills, and been discharged, and after that discharge, a new offence is committed, and the party arrest- ed, and in gaol ; or when, after the discharge of the grand inquest, a new offender is brought in, before the conclusion of llie sessions.^ The odier instance of a new grand jury being summoned, is provided by an ancient statute, when they are to inquire of any concealment by a former inquest. No instance of the kind first above mentioned is recollected in our practice, excepting in the county of Suffolk, Massachu- setts, where the necessity of it arises from the concurrent juris- diction of the Supreme Judicial and Municipal Courts in that county. Our practice is for the grand jury, when tliey have com- pleted their business, to return into court and deliver in their bills ; and if, after inquiry, they inform the court that they have no further business pending before them, and are Uiereupon uncon- ditionally discharged from any further attendance, it is consider- ed that, after such unconditional discharge, the court have no power to resummon them, or to summon a new grand jury. This power of a conditional discharge of the grand jury, though not generally exercised in Massachusetts, as a matter of course, may still be considered to be a power inherent in the court. If there should be any doubt of the existence of such power, it ought to be immediately removed by legislative pro- vision. It not unfrequently happens, that capital, and other atrocious offences, are committed after the grand jury are dis- charged, and before the final adjournment of the court. In such a case, the offender must sufFer imprisonment during the whole vacation, before he can be tried, unless the grand jury are dis- missed with a reservation, on the part of the court, to recall them, if occasion should require, before the end of the session. In England this conditional discharge never takes place ; but in cases where an ofTence is committed after the discharge of the 1 2 Hale, 156; Williams J. 1 ; 1 Chitt. 314. IG OFFICE AND DUTY OF GRAND JURORS. grand jury, and before the final adjournment, llie court have power, by tbe Enslit^b statutes, to summon a new grand jury. In the county of Suffolk, the same grand jury wbicli are returned for the Supreme Judicial Court, are also authorized and required to perform the same duties in the iNlunicipal Court, in all cases within the jurisdiction of that court. The practice, therefore, necessarily is, thai when they have finished their business in the Supreme Court, in dial county, they arc not discharged from any further attendance, but until further order of court, and there- upon are informed, that if occasion should require it, they will be notified to attend a second lime. Fourthly. The right to challenge grand jurors, and of in- structing them as to the principles of evidence. Every indictment must be found by twelve men at least ; every one of whom must possess the qualifications required by law, and be selected and returned in the manner the laws of the particular state in which he is to serve make necessary. If a grand juror has been convicted of any species of crimen falsi, as perjury, conspiracy, Sec. which may render him infamous ; or is an alien or outlaw, he is thereby disqualified from serving in that capacity. And any person who is under a prosecution for any crime whatever, may, by common law, before he is indicted, challenge any of the persons returned on the grand jury, for any of the causes above mentioned.^ It was so decided in Common- ivealth vs. Smith, 9 INIass. R. 1 10 j^ in which it is said by Stivall J. that objections to the personal qualifications of grand jurors, or to the legality of the returns, may be received from any person who is under presentment for any otTeuce whatever, or from any person present, who may make the suggestion as amicus curia. In a subsequent case, however, doubts were expressed as to the correctness of that opinion.^ In the case of the United States vs. Aaron Bun, a motion was made by the prisoner to challenge the panel of the grand 1 Hawk. b. 2, c. 25, § 16 ; Bac. Abr. Juries A. ; 1 Chitt. 307, and other au- thorities there cited. - See ante, p. 5^ and Commonwealth vs. Parker et al. 2 Pick. 568. 3 Ibid. OFFICE AND DUTY OF GRAND JURORS. 17 jury. The ground of llie motion was, that the marshal had proceeded irregularly in summoning some part of the panel. This motion was considered, both by the counsel and the court, as new and without precedent ; but it was so far sustained, as that the juror, who was irregularly summoned, was considered as not being one of the panel.^ Chief Justice Marshall remarked, that " there can be no doubt that this is the time when the ac- cused has a right to take exceptions to the jury ; and the only doubt can be, is this a proper exception ? " He decided that it was.^ Grand as well as traverse jurors may be challenged for favor, as well by the government as the prisoner. And it is said, in the case of United States vs. Burr, that they may be required to declare, whether they have made up their mind, or formed and expressed an opinion of the guilt or innocence of the ac- cused.^ And the rule is laid down by Chief Justice Marshall, in the case of United States vs. Burr, that a man must not only have formed, but declared an opinion, in order to exclude hira from serving on the jury.'* The right of the court to instruct the grand jury, as to the principles of evidence, on incidental points, as they arise on an examination of cases, when requested by them, is well establish" ed. But the right of the accused person to move the court to give specific instructions to the grand jury, on particular points of evidence stated in a particular case, has never been admit- ted. It would be manifestly improper for the court to commit themselves upon questions of law pending before the grand jury, which might come before them, to be decided on the trial. Some of the detailed points might never arise during the session of the grand jury ; and any instruction on them would, of course, be unnecessary. Such points might be extreniely difficult to • United States vs. Burr, Trial, i. 33, 37. 2 Ibid. p. 37. '•' Ibid. 43, 425. ♦ Bun's Trial, i. 44. But if he has actually formed an opinion, though he may have never declared it, and this appears from the answers to the questions put to him, it ought to disqualify him, and this is the pracUce in Massachusetts. 18 OFFICE AND DUTY OF GRAND JURORS. decide, nnd would require an argument of counsel. "There is no judge or man, who would not often find the solitary medita- tions of his closet very much assisted by the discussions of others." ^ Fiftfihj. The mode of proceeding after the grand jury are organized, anLTY OK GRAND JL'UOUS. to liave been cominitled, is, in general, a competent witness, Jn England, and in some of tliu United States, in the case ot i'orgeiv, tlie party, whom the I'orged instrument is intended lo deiVaud, is an exception.^ If the jury Imve any doubt upon the propriety of admitting any part of the evidence offered them, they may ask the advice of the court upon the subject.^ And if they should find a bill upon incompetent or improper evidence, yet if the prisoner be afterwards tried and convicted upon legal and siiflicicnt testimony, the conviction cannot be impeached.^ The manner in which evidence is received and decided upon by the grand jury, is required, by the nature of the institu- tion, to be private and in secret. The oath of a grand juror requires this of him, and tiie disclosure of the evidence is pun- ished as a misdemeanor, with fine, and, probably, imprisonment. The otFence is not only finable, as a misprision, but may be con- sidered so as a contempt. If these proceedings were permitted to be public, the whole object of the institution would be defeated. Yet a case is recorded in one of the volumes of the State Trials in England, in which it was contended and decided, that the evidence to be given to the grand jury might he heard in court. I refer to the trial of the Earl of Shaftesbury, in Hargrave's St. Tri. vol. iii. p. 420. In that case, after the charge was given to the grand jury, by Lord Chief Justice Pemberton, the attorney-general moved, that the examination of the witnesses, and the evidence to be given before the grand jury, should be in open court. This motion ivas sustained, and the reason insisted on by the lord chief justice, and upon which the decision was founded, was, that such had been the universal custom, in ancient and later times. The grand jury, in the above trial, repeatedly and strenuously objected to this course ; alleging, that by their oath they were required to keep the king's secrets ; to which 1 Is not this altered by the late statutes i'oi the irupiovement of the criminal code in England ? 2 1 Chitt. 320 ; Hawk. b. 2, c. 25, § 145, in notis ; 4 Black. Com. 303, note 1 ; 2 Hale, 159, 160. •' Hawk. b. 2, c. 25, § 145. — See note to § 145, Dr. Dodd's case ; {I Leach, 156, 157. OFFrCE AND DUTY OF GRAND JURORS. 27 the lord chief justice replied, " The oath that requires that ' the king's counsel, your fellows', and your own, you shall keep se- cret,' refers to yovr dehnfrs, and not to the evidence given to the jury ! " There is nothin'j; in the history of English jurisprndence which strikes an American with more astonishment and abhor- rence than this procedure. Without having taken the trouble to examit\c the truth of the assertion, that " such had been the univtMsal custom, in ancient and later times," it is to be hoped tJiat the custom ceased with the reign of Charles ihe Second, and with the judges of his creation.* It is said to be the right and duty of the grand jury, that if they know of the commission of any offences, to inquire into them, and have them punished, although not presented to them. Seventhly. The right of the grand jury to compel the attend- tnce of witnesses ; the finding the bill, &ic. Most witnesses who appear to testify before the crand jury, are under recognizance for that purpose, eidier taken by a magistrate or in the judicial courts. And all witnesses, whose testimony is material to the finding of an indictment, are compellable, at the order of the grand jury, to appear before them and give their evidence.^ A summons issues for this purpose, by the procure- .nient of the public prosecutor, from the clerk of the court at which the grand jury are in session. Justices of the peace, also, in Massachusetts, are expressly authorized by statute to •rant subpcenas for witnesses, in criminal causes, pending in any court having criminal jurisdiction, provided it be done at the request of the public prosecutor.^ And in all cases, where wit- nesses are lawfully summoned before the grand jury, and refuse to attend, the court will grant an attachment against them, on which they may be taken and committed. And if, when a wit- ness ap[)cars, he refuse to be sworn, or testify, the court may impose an immediate fine upon him, and he may be committed ' 4 Black. Com. 302, note by Christian. » 1 Salk. 278 ; Bac. Abr. Evidenrc, D. ; 6 T. R. 295 ; 8 T R. 585 ; 1 Chitt. 320. » Stat. \T^3, c. o\ ; and Stat. 17P1, c. .jt, § 6. 28 OFFICE AND DUTY OF GRAND JURORS. for a contempt ; from which liability no privilege can excuse him.^ After the grand jury have heard the evidence, they are to decide whether the bill shall be found or rejected. Twelve of the jury, at least, must concur in finding the bill ; and if the rest of the jury dissent, the finding will still be valid. ^ And if the foreman does not concur in finding die bill, he must, neverthe- less, sign and authenticate it, as foreman, provided twelve should agree to it ;»for it is not the foreman's bill, but that of the grand jury, whose organ he is for this purpose. If a bill be ready drawn and presented to a grand jury, con- taining one charge only, the jury cannot find one part of it true, and another false ; but they must either reject or maintain tiie whole ; and, therefore, if they endorse a bill of indictment for murder, a true bill for manslaughter, and not for murder, the whole will be invalid. This rule, however, does not extend to the finding of different counts ; for as each count contains a distinct charge, the jury may find a true bill upon one of them only.^ It is a rule, however, that, in cases of homicide, it is generally most safe for the jury to return a bill for murder, when the fact of killing is proved. On such an indictment the prisoner may be found guilty of manslaughter, and not guilty of murder. The distinctions and difficulties above stated, may be, and are avoided, in all cases where the indictment is not drawn and pre- sented, until after the grand jury have heard and considered all the evidence, and have decided upon the offence for which the bill is to be found. In such case, the bill is always drawn con- formably to the evidence, and may contain as many counts as the nature of such evidence will justify, and may render expedi- ent. Such is and has been the practice in Massachusetts and other States, and is found to be most convenient, and strictly conformable to the nature of criminal proceeding. The practice 1 1 Chitt. 321 ; 1 Hawk. c. 22, § 4 ; 1 Salk. 278 ; Bac. Abr. Evidence, D. ; Dick. Sess. 90. 2 1 Chitt. 322 ; 2 Hale, 161 ; 4 Black. Com. 306. 3 Hawk, b. 2, c. 25, § 2 ; 1 Chitt. 322-, Cowp. 325, and other authorities there quoted. OFFICE AND DUTY OF GRAND JURORS. 29 of drawing and preferring the bill before the evidence is exam- ined by the grand jury, obtains in England, and those American States where the English practice in this particular is adopted, and where the party injured is, in fact, though not in name, the prosecutor. If the indictment found is defective, a new and more regular one may be framed and found. The mere insufficiency ot the finding, affords no future indemnity to the party indicted.^ Eighthly. Amendment of indictments, by consent of the grand jury. It is setded, in England, both by express exceptions in the Statutes of Amendments, and the current of authorities, that indictments are not within their operation ; and that, therefore, they stand upon the same principles with respect to amendment, as those to which all pleadings were subject at common law. As the indictment is the finding of a jury upon oad), it cannot be amended by the court without the concurrence of the grand in- quest, by whom it is presented.^ And it is the common prac- tice in England, for the grand jury to consent that the court shall amend matters of form, altering no matter of substance ; mere formalities may, therefore, be amended by the court, before the commencement of the trial.'' The time at which the grand jury are called upon to consent to the amendment of their indict- ments, is differently stated in different authors. In a note in Hawkins, and in Chitty it is said, that this consent is obtained at the time the grand jury are sworn. In the text of Hawkins it is stated, that this amendment is consented to by the grand jury when they are before the court.^ But in the Cro. C. C. 12, (6th Ed.) it is thus laid down : " The court sends for the grand jury ; and when they appear, the clerk calls them severally by their names, and says, ' Gentlemen, have you agreed upon any » 4 Black. Com. 305, 306 ; Bac. Abr. Indictment, D. ; FosU 104. 106. « 1 Chitt. 297, quotes 4 Burr. 2569, 2370 ; 1 Hale, 193 ; Hawk. b. 2, c. 25, § 97 ; Bac. Abr. Indictment, G. 11, and other authorities. 3 1 Chitt. 297 ; 4 Burr. 2570 ; Hawk. b. 2, c. 25, § 98 -, 6 Mod. 281. * 1 Chitt. 297, 298 ; Hawk. b. 2, c. 25, § 98 ; Bac. Abr. Indictment, H. U. » 1 Chitt. 30 OFFICE AND DUTY OF GRAND JURORS. bills ^^ And the clerk bids them present them to the court ; and upon delivery of them, he saith, ' You are content the court shall amend matter of form, altering no matter of substance, without ijour jirivity, in these bills you have found 9 ^ The grand jury say, Yes. The court then proceed to arraign the prisoners." There seems to be no doubt, therefore, that an indictment, as well in capital cases as misdemeanors, may be amended by order of court, in matters of form, by the consent of the grand jury ; and that the princi|)les and practice of die common law have sanctioned this procedure.^ It is laid down in Starkie, 245, that it is the common practice, at present, to amend indictments in matters of form, whilst the grand jury are before the court; for which purpose they formally give their consent Uiat the court shall amend mat- ters of form, altering no matter of substance. When an indict- ment appeared to be insufficient, either for its uncertainty, or for want of proper legal words, it was anciently the practice to award process to the grand jury, if the court sat in the same county, to amend it.^ It is presumed not to be competent to the courts in this country to adopt this latter course. When the grand jury have finished their business, and been unconditionally discharg- ed, they cannot be resummoned and reorganized. No grand jury can be created or brought into existence, but in the man- ner directed by the statutes of the State. There appears to be no objection to the introduction of the practice of amending indictments, in mere matters of form, by die consent of the grand jury, into the courts of this coun- try. On the contrary, it would be the means of preventing the escape of atrocious offenders, from the most trifling de- fects, not at all affecting their rights, and which operate to the manifest injury of public justice. This evil, according to our present practice, is without remedy. The grand jury are usually discharged at the moment they have finished their business, and delivered dieir bills into court, and before the prisoners are ar- 1 I Chitt. 298. « Stark. 245 ; 2 Hawk. c. 25, § 98. OFFICE AND DUTY OF GRAND JURORS. 31 raijj;necl. They, of course, immediately leave the court, and return to their homes. If, after this, the most tritling mistake in the indictment is discovered, on the arraignment of the piir-^oner, there is no way to correct or amend it, hut by the consent of the party accused ; this can rarely be expected. This evil, trifling as is the cause of it, and injurious as are the consequences of it, can never be avoided, so long as the public prosecutors are sub- ject, in common with the rest of mankind, to human frailty. The remedy^ ^bweVet,' !l perfectly simple, and fully vested in the judicial courts, by the provisions and principles of the common law. And it is known to the author of these remarks, that some of the most eminent judges in the country have been, and now are, de- cidcdlv of opinion, that the English practice before referred to, in regard to amendments of matters of form in indictments, by the consent of the grand jury, ought to be adopted in the American courts. If it were, it might, in an important instance, do away the reproach which often follows the acquittal of a criminal, whose guilt is not only apparent, but admitted, by reason of trifling errors and omissions, to which tlie most accurate are liable and in the habit of innocently con)miiting. The technical strictness of criminal proceeding may doubtless be relaxed, so as to insure the punishment of the guilty, and without depriving the accused of any just means of defence. Among the late improvements in the criminal lavv of England, is the statute of 7 Geo. 4, c. G4, § 19, by which it is provided, that no indictment shall be abated by reason ol any dilatory plea of misnomer, or want of addition, or of a wrong addition ; but the court may amend the same, and require the party to plead. And by section 20, of the same statute, no indictment or infor- mation shall be stayed or reversed, for omitting to state the time at which the offence was committed, in any case where time is not the essence of the offence ; nor for stating time imperfectly ; nor for stating the offence to have been committed on a day sub- sequent to the finding of the indictment ; or on an impossible day ; or on a day that never happened. These rational and liberal improvements would be adopted in all the States of this Union, if the mischiefs, escapes of the guilty 32 OFFICE AND DUTY OF GRAND JURORS. from punishment, and, in many instances, the indignation, which are the result of this technical strictness in criminal prosecutions, were fully known and understood. Since the above paragraph was written, the legislature of Massachusetts, by a statute of 1830, c. 49, have passed " An Act for the Prosecution and Punishment of Accessories in Felo- nies," in which the late iuiprovements in the British government upon that subject have been adopted. JL. S» . c-. /38. PRECEDENTS OF INDICTMENTS. ABORTION. 1. At Common Law ; for administering a Potion, wiih Intent to cause an Abortion} Comrnornvealth of Massachusetts. Suffolk ss.~ At the Supreme Judicial Court of the said Com- monwealth of Massachusetts, begun and holden at Boston, within and for the said county of SufFolk, on the Tues- day of in the year of our Lord one thousand eight hun- dred and thirty : The jurors for said CommonwcaUh upon their oath present, that A. B. of in the county of laborer, on the day of in the year of our Lord one thousand eight hun- dred and thirty, at Boston aforesaid, in the county aforesaid,^ did, unlawfully and wickedly, administer to, and cause to be administered to and taken by one C. D., single woman, she the said C. D. being then and diere pregnant, and quick with child,'' divers quantities, to wit, four ounces, of a certain noxious, per- nicious, and destructive substance, called savin; with intent thereby to cause and procure the niiscarriagc of tjic^said C. D., and the premature birth of the 'sa*d 'child) of whicfi the said C. D. was then and there pregnant and quick ; by the means whereof, the abortion, miscarriage, and premature birth of the said child was caused and produced. And she the said C. D., afterwards, to wit, on the day of next following, at » 3 Chitt. C. L. 797-SOO. * The name of the county must be in the margin or repeated in the body of the caption. 2 Hale, 166. 3 The words " force and arms " arc omitted in this, and may be in the follow- ing precedents, as unnecessary. Sec for this, the following authorities. 2 Hawk. c. 25, § 90; 2 Hale, 187, and the autboiities there quoted. * Or, according to some authorities, " being then and there pregnant with a quick child." 5 3# ABORTION. B. aforesaid, in the county aforesaid, by means of the noxious, pernicious, and destructive substance aforesaid, so as aforesaid administered by the said A. B., and taken by tlie said C. D., was prematurely delivered of the said ciiild, against the peace and dignity^ of the Commonwealth aforesaid. 2. For causing an Abortion by an Instrument.^ [^Draiv the caption as in precedent JVo. 1.] That A. B. of in the county of laborer, on the day of in the year of our Lord one thousand eight hundred and at B. aforesaid, in tlie county of aforesaid, did, unlawfully, knowingly, and inhumanly, force and thrust a certain instrument, called a which the said A. B. in his right hand then and there had and held, up and into the womb and body of one C. D. ; she the said C. 1). being then and there pregnant, and quick with child ; with a wicked and unlawful intent to cause and procure the said C. D. to miscarry, and to bring forth the said child, of which she was then and there j)regnant and quick as aforesaid ; and that she the said C. D. afterwards, to wit, on the day of then next ensuing, at B. aforesaid, in the county of S. aforesaid, by means of the forcing and thrusting of said instrument into the womb and body of her the said C. D., in manner aforesaid, did bring forth the said child, (of which she was so pregnant and quick,) dead ; against the peace and dignity of the Commonwealth aforesaid.'' * The word " dignity," at the close of the precedent, may also be omitted as unnecessary. For this see Hawk. b. 2, c. 25, § 94 ; 2 Hale, 188, and other authorities there referred to. But in the following precedents it is generally retained. V. "K. S. e.. H/^ - Z^. « 3 Chitt. 800. ' Commonioealth vs. Bangs, 9 Mass. R. 387. In this case it was decided, that the indictment must contain an allegation that an abortion ensued, and that the woman was quick with child. There is no authority referred to in the case, for the above opinion. And see 3 Chitt. 799, 800, where there is a precedent for procuring abortion, by means both of administering noxious medicines, and of an instrument ; in the three last counts of which there is no averment that the woman was quick with child. ABORTION. 35 3. For administering noxious Potions, Sfc. ivith Intent to procure an Abortion} \I)raw the caption as in precedent JVo. 1.] The jurors for said Coininonwcaltli upon their oath present, that A. B. of in the county of laborer, on tlie day of in the year of our Lord, &:c. with force and arms, at aforesaid, in the county aforesaid, in and upon one C. D., in the peace of said Commonwealth then and 'there being, did make an assault, she the said C. D. being then and there big, pregnant, and (juick with chiki ; and that he the said A. B. then and there knowingly, unlawfully, wilfully, wickedly, maliciously, and injuriously, did give and administer, and did cause and procure to be given and administered to the said C. D., so being big, and pregnant, and quick with child as afore- said, divers deadly, dangerous, and pernicious drugs, potions, and mixtures, with a wicked and unlawful intent to cause and procure the said C. D. to miscarry, and to bring forth the said child, with which she was then and there pregnant and quick as aforesaid, dead ; by reason and means whereof the said C. D. became and was rendered weak, sick, and distempered in her body, for the space of six months ; and the life of the said C. D. thereby greatly endangered ; and other wrongs then and there did, to the great damage of her the said C. D., and against the peace of the Commonwealth aforesaid. ' This precedent is selected from 3 Chitt. C. L. 800. It is drawn at common law, and contains the allcgalion of an assault. It is not alleged that C. D. was quick with child, nor that the abortion was produced ; neither is the name of the medicine given. It may be advisable in all cases, when the name of the medicine or drug is unknown, to allege in the indictment that it was a certain dangerous &c. drug, potion, &c. " the name of which is to the jurors aforesaid unknown." But see 3 Chitt. 798, note (u), where it is said the name of the poison is not material ; cites 3 Campb. 75. There are several other precedents in Chitt. C. L. and in Archibald Cr. PL, drawn upon the late Enghsh statute of 43 Geo. 3, c. 58. But the statute is now repealed, by the recent statute of 9 Geo. 4, c. 31, intitled an act for " con- solidating and amending the statutes of England, relative to offences against the person ; " in which a new provision upon the subject of this offence is intro- duced. 36 ACCESSORY. LARCENY. 4. For administering a Decoction of Savin, to procure an Abortion in a Woman, before the Cluickening.^ That A. B. of &c. on and on divers other days and times, between that day and the day of taking this inquisition, at he, wilfully, maliciously, and unlawfully, did administer, and cause to be administered to, and taken by one C. D., single woman, divers quantities, to wit, six ounces, of the decoction of a certain noxious and destructive shrub, called savin ; the said C. D., on the said day of, kc. and continually from thence, until the day of at aforesaid, being with child, but not quick with child, at the respective times of administering the decoction of the said shrub called savin, as aforesaid ; with intent thereby to cause and procure the mis^ carriage of tlie said C. D. ; against the peace &c. ACCESSORY. Larceny, 5. Indictment against an Accessory to a Larceny before the Fact? [ Caption as in precedent JVo. 1 . Then proceed.'] Tlie jurors for said Commonwealth of Massachusetts upon their oath present, that A. B. of in the county of laborer, on the day of in the year of our Lord one thousand eight hundred and at Boston, in the said county of Suffolk, one silver spoon, of the value of one dollar, of the goods and chattels of one C. D., then and there in the possession of the said C. D. being found, feloniously did steal, take, and carry away, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. late of in the county of laborer, before the committing of the felony and larceny aforesaid, to wit, ^ This precedent is taken from 3 Chitt. 798, and is drawn upon the statute of 43 Geo. 3, c. 58, § 2. But it is inserted here upon the presumption that the facts therein stated would amount to a misdemeanour at common law. 2 The following precedents against accessroies are selected from Tremaine's Pleas of the Crown ; Chitt. Cr. Law ; Cr. Cir. Comp. ; and Starkie Cr. PI. The superfluous matter and obsolete words, in these and most of the other precedents of indictments in the ancient English forms, are not adopted. ACCESSORY. — LARCENY. 37 on the day of in the year last aforesaid, at aforesaid, in the county aforesaid, did knowingly and feloniously incite, move, procure, aid, abet, counsel, hire, and command the said A. B. to do and commit the said falony and larceny, in manner and form aforesaid, against the peace and dignity of said Commonwealth, and contrary to the form of the statute in such case made and provided.^ 6. Against an Accessory, for receiving the principal Felon. {State the offence against the principal felon, as in the next preceding precedent, and then proceed as follows.] And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D. of in the county of laborer, well knowing the said A. B. to have done and committed the felony and larceny aforesaid, in manner and form aforesaid, afterwards, to wit, on the day of in the year of our Lord one thousand eiiiht hundred and at B. aforesaid, in the county aforesaid, "him the said A. B. did then and there knowingly and feloniously receive, harbour, conceal, and maintain, in the larceny and felony aforesaid ; against tlie peace of said Commonwealth, and contrary to the form of the statute in such case made and provided." 7. Against an Accessory, for receiving Stolen Goods. [State the offence against the principal felon, as in precedent JVo. 4, and then proceed as follows.] And the jurors aforesaid,'upon their oath aforesaid, do further present, that C. D. of in the county of laborer, afterwards, to wit, on the day of now last past, at B. aforesaid, in the county aforesaid, the goods and chattels aforesaid, to wit, one gold ring, of the value of two dollars [here state all the articles found upon the accessory, their value, .^c] so as aforesaid feloniously stolen, taken, and carried away, by the said A. B. in manner aforesaid, feloniously did receive and 1 2 Stark. Cr. PI. 456; Cro. C. C. 124. This indictment concludes at com- mon law. The words in tlie statute of Massachusetts of 1804, c. 143, used in the cases of accessory before the fact, are, " any person who shall he accessory thereto before the fact, by counselling, hiring, or otherwise procuring the same to be done." These words are used in most of the statutes of Massachusetts against capital offences, as against accessories before the fact. « 2 Stark. Cr. PI. 456 ; Mass. Laws. Stat. 1804, c. 143, § 10 ; Cro. C. C. 125 (6th Ed.) ; 2 Chitt. C. L. 6. J^, S . c /2.6. 6,. n. ^. ni.-^- '• 38 ACCESSORY. LARCENY. have, and did then and there feloniously aid in concealing the same ; he the said C. D. then and there well knowing the same goods and chattels to have heen feloniously stolen, taken, and carried away as aforesaid ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided.^ Note. — When the principal has been convicted in one county, and the stolen goods received in another, the form will be die same as in this precedent ; the conviction of the principal being alleged conformably to the record in the county where it was had. 8. Indictment for a Misdemeanor, against an Accessory, for re- ceiving stolen Goods, the Principal not having been prosecuted. The jurors for said Commonwealth upon their oath present, that A. B. of in the county of laborer, on the day of in the year of our Lord one thousand eight hun- dred and at B. aforesaid, in the county aforesaid, one silver tankard, of the value of twenty dollars, of the goods and chattels of one C. D., by one E. F.~ then lately before feloni- ously stolen of the said C. D., unlawfully, unjustly, and for the sake of unlawful and wicked gain, did receive and have ; the said A. B. then and there well knowing the same to have been feloniously stolen ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and pro- vided.^ 9. Against an Accessory for a Misdemeanor, in receiving stolen Goods, the principal Felon being unknown. The jurors for said Commonwealth upon their oath present, that A. B. of in the county of laborer, on the day of now last past, at aforesaid in the county aforesaid, one silver tankard, of the value of twenty dollars, of the goods and chattels of one C. D., by an evil disposed person, to the jurors aforesaid yet unknown, then lately before feloniously stolen of the said C. D., unlawfully, unjustly, and for the sake of wicked and unlawful gain, did receiv^e and have ; he the said A. B. then and there well knowing the said goods and chattels 1 2 Strak. Cr. PI. 457 ; Mass. Laws, Stat. 1804, c. 143, § 10 ; Cr. Cir. Comp. 125. £-.»^. ^d^. ^ The name of the principal ought to be stated, if known. East, P. C. 783. ' 2 Mass.-Laws. Stat. 1804, c. 143, s, U. See next precedent, X. 5.^. /T-6 ACCESSORY. ROBBEM. oy to have been feloniously stolen ; against the peace of said Com- monweallli, and contrary to the form of ihe statute in such case made and provided. 10. Against an Accessory, for a second Offence in receiving stolen Goods, the principal Felon being unknown} The jurors for said Commonwealth upon their oath present, that A. B. of in the county of laborer, on the day of now last past, at aforesaid, in the county aforesaid, one silver tankard of the value of twenty dollars, of the goods and chattels of one C. D., by a certain evil disposed person to the jurors aforesaid unknown, then lately before felo- niously stolen o"f him the said C. D., unlawfully, unjustly, and for the sake of unlawful and wicked gain, did receive and have ; he the said A. B. then and there well knowing the said goods and chattels to have been feloniously stolen as aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. And the jurors afore- said, upon their oath aforesaid, do furdicr present, that hereto- fore, to wit, at the Supreme Judicial Court of said Common- wealth, begun and holden at within and for the county of on^he Tuesday of in the year of our I^rd one thousand eight hundred and the said A. B. was duly and legally charged and convicted, for that he the said A. B. on at seventeen yards of linen cloth, of the value of five dollars, of the goods and chattels of one E. F., by a certain ill disposed person to the jurors who found the bill of indictment upon which the said A. B. was then and there convicted as aforesaid, then unknown, then lately before feloniously stolen of him the said E. F., unlawfully, unjustly, and for the sake of wicked and unlawful gain, did have and receive, he the said A. B. then and there well knowing the said seventeen yards of linen cloth to have been feloniously stolen as aforesaid ; agamst the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 11. Accessory before the Fact, to a Robbery. \Frnme the indictment against ihe principal, according to the facts Sn ^ihe case, ajifl the form of indictment against the prin- cipal in Robbery ; and then proceed.'] And the jurors aforesaid, . upon their oath aforesaid, do further present, that A. B. of, &.c. • 2 Ma:j3. Laws, Stat. 1S04, c. 143, § 12. »-* • «^- /t^-^' *^- 40 A^ESSORY.— MURDER. before the said felony and robbery was committed in manner and form aforesaid, to wit, on the day of in the year aforesaid, at aforesaid, in the county of afore- said, wilfully and feloniously did counsel, hire, and procure the said A. B. the felony and robbery aforesaid, in manner and form aforesaid, to do and commit ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided.^ 12. Against an Accessory after the Fact. [Set out the offence against the principal, in the form of the next preceding precedent, and then proceed.^ And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B. of, &ic. after the felony and robbery aforesaid was com- mitted in manner and form aforesaid, by him the said C. D. to wit, on, he. at, &c. he the said A. B. then and there did be- come accessary thereto, after the fact, by knowingly receiving, harboring, comforting, and maintaining, and otherwise unlawfully assisting the said C. D. ; he the said A. B. then and there well knowing the felony and robbery aforesaid to have been done and committed by the said C. D. in manner and form aforesaid ; against the peace, he. and contrary to the form of the statute, &ic. 13. Indictment against an Accessory hefore the Fact, in Mur- der.^ [Frame the indictment against the principal in the usual form, alleging the nature of the murder, and then proceed as foUows.~\ And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B. of in the county of laborer, be- fore the said felony and murder was committed, in form afore- said, to wit, on the day of in the year of our Lord one thousand eight hundred and with force and arms, at in the county aforesaid, was accessory thereto before the fact, and did feloniously and maliciously incite, move, procure, * This indictment is framed upon the Stat, of Mass. 1804, c. 143, § 7. The section does not extend to accessories after the fact. But I see not why it is not an offence at common law, and have added the form of such a charge ; both of which are taken from 1 Trem. P. C. 289, 290. jE- S. c. /S-^.^.f.^. 2 2 Chit. Cr. L. 5 ; Cr. Cir. Comp. 124 (6th Ed.) ; Mass. Laws, Stat. 1804, c. 123, § 1. The words of this statute against the accessory are " shall have been accessory thereto before the fact, by counselling, hiring, or otherwise pro- . curing i\\e same .to be done." An indictment upon this statute ought to use these words only. ACCESSORY. MURDER. 41 aid, counsel, hire, and command the said C. D. to do and com- mit the felony and murder aforesaid, in manner and form afore- said ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 14. Another Precedent against an Accessory before the Fact in Murder} [After alleging the murder against the principal, in the usual form, upon the first section of the statute of Massachusetts, 1804, c. 123, § \,the indictment proceeds. \ And the jurors aforesaid, upon their oath aforesaid, do fiu'ther present, that J. J. Knapp, of &c., and Geo. Crovvinshicld, of &:c., before the said felony and murder was committed, in manner and form aforesaid, to wit, on at were accessory thereto before the fact, and fe- loniously, wilfully, and of their malice aforethought, did counsel, hire, and procure the said J. F. Knapp {the principal) the felony and murder aforesaid, in manner and form aforesaid, to do and commit ; against the peace of said Commonwealth, and contrary to the form of die statute in such case made and provided. 15. Against an Accessory, for harl) or ing a principal Felon in Murder." [Frame the indictment, against the principal felon, according to the facts in the case, and in the usual form ; then go ora.] And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., late of in die county of laborer, well knowing the said C. D. to hav3 done, committed, and perpe- trated the felony and murder in manner and form aforesaid, af- terwards, to wit, on the day of in the year of our Lord, with force and arms, at aforesaid, in the county aforesaid, was accessory thereto, and him the said C. D. did then and there feloniously receive, harbor, comfort, conceal, and maintain ; against the peace of said Commonwealth, and con- * This was the indictment used against the accessories before the fact, in the late case of The Commonwealth vs. /. F. Knapp, as principal, in the horrid and most diabolical murder of Joseph White ; upon which J. J. Knapp was tried, convicted, and executed. The words used in the English precedents are " feloniously and maliciously ' counsel him," &c. not using the allegation in the following precedent, " felo- niously, wilfully, and of their malice aforethought." This indictment was drawn by the Attorney General of Massachusetts. X. i. c. /"ii.S,. /• * Archib. Cr. PI. 397 ; 2 Stark. 4.56. :^.S. <^. /3^.i^. ^. yi.*-j^tLc^ ptU, c.*-»«^ ofc*— 9 *4.fi*«- 'J '^*- — "n.otr itu**. 'V lt^c> k— fi-*^ -r J.. cL.Qt.^' ^*^- /^. 43 ACCESSORY. BURGLARY. trary to the form of tlic statute in such case made and pro- vided.^ 16. Indictment against an Accessory to a Murder after the Fact, upon the Statute of Massachusetts, 1804, c. 123, § 2. [^Frame the indictment against the principal, according to the facts in the case, and then go on.] And the jurors aforesaid, up- on their oath aforesaid, do further present, that A. B., late of in the county of laborer, after the wilful murder was done and committed as aforesaid by him the said C. D., he the said A. B., then and there well knowing the same to have been done and committed by the said C. D. in manner and form aforesaid, afterwards, to wit, on at with force and arms, did become an accessory thereto after the fact, by knowingly receiving, harboring, comforting, concealing, main- taining, and otherwise unlawfully assisting the said C. D. ; against the peace of said Commonwealth, and against the form of the statute in such case made and provided. 17. Indictment against the Principal and Accessories before the Fact, in Burglary." \^Drniv the indictment against the principal according to the jn'ccedents in Burglary, (see Burglary, post,) and then proceed J^ And the jurors aforesaid, upon their oath aforsaid, do further present, that A. B., of in the county of laborer, be- fore the committing of the felony and burglary aforesaid, in man- ner aforesaid, to wit, on the day of in the year of our Lord one thousand eight hundred and at afore- said, in the county aforesaid, was accessory thereto before the fact, and did, feloniously and maliciously, incite, move, counsel, hire, and procure, aid, abet, and command the said C. D.*^ to do and commit the said felony and burglary, in manner and form aforesaid ; against the peace of said Commonweahh, and contrary to the form of the statute in such case made and provided. » 2 Chitt. Cr. L. 6 ; Cro. Cir. Comp. 125, (6th Ed.) ; Mass. Laws, Stat. 1804, c. 123, § 2. 2 3 Chitt. 1101 ; Cro. C. C. 124, (6th Ed.) ; Cro. C. A. 27. 3 The words in the statute of Massachusetts, 1805, c. 101, § 1, constituting the offence of being accessory before the fact, are, " by counselHng, hiring, or procuring such b^iiglary to be committed ; " the same words as are used on a similatr charge in the statute against murder. ACCESSORY. BURGLARY. 43 18. Indictment against an Accessory to a Burglary, after the Fact} [Draw the indictment against the principal according to the precedents in Burglary, (see Burglary, post,) and then proceed^] And the jurors aforesaid, upon their oath aforesaid, do further present, tliat A. B. of in the county of laborer, af- terwards, to wit, on at well knowing die said C. D. to have done and committed die felony and burglary aforesaid, in manner and form aforesaid, him the said C. D. did then and there knowingly harbor, conceal, maintain, and assist ; against the peace of said Commonwealth, and contrary to the form of the Statute in such case made and provided. 19. Indictment against an Accessory to a Burglary before the Fact, u'here the Principal committed Suicide before he was tried.' The jurors for said Commonwealth, upon their oath, present, that Thomas Daniels, lately resident in Boston, in the county of Suffolk, laborer, on the twenty-fifth day of November now last past, about the hour of ten in the night of die same day, with force and arms, at Stoneham, in the said county of Middlesex, the dwelling-house of Jacob Gould, there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of one David Gould, junior, in the said dwelling-house then and there being, feloniously and burglariously to steal, take, and carry away, and that lie the said Thomas Daniels, then and there twenty pieces of silver coin, called dollars, of the value of twenty dollars, and six pieces of gold coin, called half eagles, of the value of diirty dollars, of the goods and chattels of die said Da- vid Gould, junior,'then and there in die dwelling-house aforesaid being found, feloniously and burglariously did steal, take, and » Cro. C. C. 125, (6th Ed.) - The prisoner in this case was acquitted upon the ground, that the principal had never been convicted. The fact was, tliat the principal committed suicide in prison before the commencement of the term at which He was to be tried, and therefore no conviction could ever be had. See 16 Mass. R. 123. The gross" injustice and absurdity of this principle of the common law is now universally acknowledged. It has always been condemned and even • reprobated by many of the wisest and best judges that ever sat upon the EnMish Bench. It is now abrogated in England, by a recent statute of 7 Geo. 4, c. 64, and in Massachusetts by a late statute of IS.39 c ' 49, in which the provisions of 7 Geo. 4, c. 64, arc subslaulially adopted. 44 ACCESSOUV. — UAI'i.. carry away ; the said David Gould, junior, being then and there, at the lime of hl•ellki^^ and enterini:; the dwelling-house aforesaid by the said Thomas Daniels, lawfully therein, anil he the said Thomas Daniels, being then and there at the time of breaking and entering the dwelling-house aforesaid by him the said Thomas Daniels, feloniously and burglariously armed with a cer- tain dangerous weapon called a dagger, airainst the peace of said Commonweallh, and against the form of the statute in such case made and jirovided. And the jurors aforesaid, upon their oatli aforesaid, do further present, that James Phillips, lately resident in Boston, in the said county of Suftblk, laborer, before the com- mitting of said felony and burglary in manner aforesaid, to wit, on the twentieth day of the same montli of November now last past, at Sloncham aforesaid, in the county of .Middlesex afore- said, did jeloniously and maliciously counsel, hire, and procure the said Thomas Daniels to do and commit the said felony and burglary, in manner and form aforesaid, against the peace of said Comnn)nwealth, and against the form of the statute in such case made and provided. And the jtn-ors aforesaid, upon their oath aforesaid, do further present, that since the committing of the felony and burglary aforesaid, in manner aforesaid, by the said Thomas Daniels, to wit, on the twelfth day of December now last past, at Cambridge, in the county of Middlesex aforesaid, the said Thomas Daniels died by the act of suicide, and as a felon of himself, and that no trial or conviction of the said Thomas Daniels for the felony and burglary aforesaid, before the death of him the said 1 homas Daniels, was ever prosecuted or had. 20. Indictment against an Accessory to a Rape, before the Fact? \^Draw (he indictment against the principal, according to the precedents in Rape, (see Rape, post,) and then proceed.] And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., of in the county of laborer, before the committing of the felony and rape aforesaid, in manner aforesaid, * There are no precedents against accessories to a rape, either in Chitty, Tremainc, Starkie, or Cro. Cir. Comp. But as rape is made felony by statute, it must have all the parts and ingredients of felony at common law. 1 Hale 631, G32 ; 3 Chit. C. L. 811. In Massachusetts, and probably in the other United States, accessories are expressly mentioned, and made punishable by statute. See Mass. ^aws, stat. 1S05, c. 97. See also Hawk. b. 1, c. 41, § C ; 4 Burr. 2179; Dall. c. 107; Hutt. 115. ACCESSOUY. ARSON. 45 to wit, on the day of in the year of our Lord one liiousand cij;hl hundred and at in the county afore- said, was accessory to said felony and rape hefore the fact, and then and i.ere did feloniously and maliciously counsel, hire, procure, and conunand the said C. D. (the principal felon) to do and commit the felony and rape aforesaid, in manner and form aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and pro- vided.* 21. Against an .•Icccssonj to a liapc, after the Fact. ^^Frame the indictment against the principal, according to the precedents in Jiajit, (see Rape, post,) and then proceed. And the jurors aforesaid, upon Uieir oaih aforesaid, do turdjer present, that A. B., of in the county of laborer, afterwards, to wit, on the day of now last past, with force and arms, at 15 aforesaid, in the county aforesaid, well know- ing the said C. D. {the principal felon) to have done and com- mitted the felony and rape aforesaid, in manner and form afore- said, him the said C. U. diil then and there knowingly harbor, conceal, maintain, and assist the said C. D. therein ; against the peace of said Commonwealth, and contrary to the lorm of the statute in such case made and provided.- 22. Indictment against an Accessory before the Fact, to an Arson? [Frame the indictment against the principal according to the precedents in Arson, (see Arson, post,) ami then proceed^ And ' The words of the statute of &f assachusetts, creating the offence of accessory to a rape, before the fact, are, " by counselling, procuring, or comnianding." This form, in which the English forms in other similar cases are adopted, includes these words of our statute and many more. It would therefore be good ; but it would be more technical to use the words of the statute only. * By ihc statute of Mass. 1805, c. 97, § 2, the penalty extends to an acces- sory after Ihc fact, bolli as to the principal felon and also to the. accessory before the fact. When, therefore, one is prosecuted as an accessory after the fact, to an accessory before the fact, the indictment must state the oflbnce and con- viction of the latter ; for the form of which see post, " Rape," and then it must go on to allege the oflencc of the accessory after the fact, according to this and otlier precedents of lliis kind. ' There are no precedents against accessories in Arson, in Chitty, Starkie, Cro. Cir. Comp., or Tremaine. But Arson is a felony at common law ; 1 Hawk. 165; 1 Hale, 55G : and therefore there may be accessories in arson as in all 46 ACCESSORY. ARSON. the jurors aforesaid, upon tlicir oath aforesaid, do further pre- sent, tliat A. B., of in tiic county of laborer, before tiie committing of the felony and arson aforesaid, in manner and form aforesaid, to wit, on at in the county afore- said, did feloniously and maliciously counsel, hire, and procure the said C. D. to do and commit the said felony and arson, in man- ner and form aforesaid ; ^ against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 23. Against an Accessory after the Fact for harhoring, ^c. the Principal to an Arson, on the bth Section of the Statute of Massachusetts, 1 804, c. IS I. [Frame the indictment against the principal, accordimg to the precedents in Arson, and then procced.'\ And the jurors afore- said, upon their oatii aforesaid, do further present, that A. 15., of in the county of laborer, on the day of at B. aforesaid, in the county aforesaid, afterwards, to wit, on the day of at B. aforesaid, in the county afore- said, w^ell knowing the said C. D. to have done and committed the felony, arson, and offence aforesaid, did him the said C. D. then and there knowingly harbor, conceal, maintain, assist, and receive, after the felony, arson, and offence aforesaid was done and committed, in manner aforesaid, by him the said C. D. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided." other felonies. The statute of Massachusetts of 1804, c. 131, § 1, extends to accessories before, and § 5 to accessories after the fact. See also Common- wealth vs. Barlow, 4 Mass. R. 431) ; Commonivcalth vs. Macomber, 3 Mass. R. 254 ; Commonwealth vs. A''ewaU et al. 7 Mass. R. 245, as to accessories after the fact. * The words of the statute of Massachusetts are " by counselling, hiring, or procuring the same to be done," § 1. ^ A similar count may be drawn against an accessory after the fact, upon the same section of the statute, for harboring, concealing, &c. an accessory before the fact. In which case the conviction of the accessory must be tech- nically alleged, and then you proceed, as above, against the accessory after the fact. ACCESSORY. MAYHEM. 47 24. Indictment against an Accessory to a Mayhem before the Fact.^ [Frame the charge against the principal, according to the precedents in Mayhem (see Maim, post,) and then proceed.'] And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., of in the county of laborer, be- fore the said maim was committed, in manner and form afore- said, to wit, on tlie day of now last past, at m the county aforesaid, wilfully, maliciously, and unlawfully did counsel, hire, and procure the said C. D., {the principal,) the niaim aforesaid, in manner and form aforesaid, to do and com- mit ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.* Accessory in Pir.vcy before and after the fact. — Sec " V\- racy," post. V 'Mass. Laws statute isn4, c. 123, §4; Commonwealth vs. JVewall el al 7 Mass. K. 2i5, —jwsl. Maim. - In drawing an indictment against an accessory to this offence, the particular species of maim, (of whicli there are a great variety,) of which the principal has been convicted, or is cliarged, must be minutely stated in tlic indictment against the accessory. Tlie statute of Massachusetts, above quoted, is sUent as to accessories after the fact. See post. Maim. • Since the preceding precedents against accessories in felonies were written, the legislature of Massachusetts has followed the example of the English gorem- mcnt, and abolished one of the most unjust and odious principles ofihe common law rclaUvc to the trial of accessories before and after the fact. By the statute of Massachusetts of 1830, c. 4'.\ it is enacted, that an accessory " shall be deemed -uilty of felony, and may be in 3 Chitt. C. L. 824. 58 ASSAULTS. and E. F. were severally grievously hurt, bruised, and wounded, and put in f^reat danger of losing their lives ; and other wrongs the said A. B. then and there unlavvfiilly, wilfully, and nialicions- ly did and conimittcd, to the great damage of them the said C. D. and E. F., and against the peace and dignity of tliB Com- monwealth aforesaid. 47. For an Assault, and drlvini^ a Cart arraimt a Chaise, and throwing the Driver thcrcj'rojii.^ The jurors for said Commonwealth, upon their oaUi present, that A. B., of in the county of laborer, on with force and arms, at in the county aforesaid, in and upon one C. D. in the public highway there did make an assault, and then and there did wilfully, unlawfully, wantonly, and violently drive and force a certain horse and cart, under the care and guidance of him the said A. B., to, at, and against a certain chaise drawn by two horses, under the care of the said C. D., and in which the said C. D. then was, in the highway aforesaid. By means whereof the said C. D. was then and there dirown from and out of the said chaise, to and against the ground, and was thereby greatly injured and bruised, and put in great peril and danger of his life ; and other wrongs dien and diere did and committed, to the great damage of him the said C. D., and against the peace and dignity of the Commonwealth aforesaid. 48. For an Assault and encouraging a Dog to bite.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county aforesaid, laborer, on the day of now last past, at B. aforesaid, in the county afore- said, in and upon one C. 1). an assault did make, and him the said C. D. did then and there beat, wound, and abuse, and that he the said A. B. did then and there unlawfully incite, provoke, and encourage a certain dog, belonging to him the said A. B., him the said C. D. then and there to beset and bite ; by means whereof die same dog did then and there grievously bite the rigl'.t leg of him the said C. D., whereby the said leg of him the said C. D. was grievously hurt and wounded, and his life greatly en- 1 3 Chitt. C. L. 825, said to be a recent form, settled by counsel, (but there is no assault alleged, and no other personal injury to (he prosecutor stated, ex- cept his fears &.c.) A second count for a common assault may be added, as ante, precedent No. 40. 2 A Chitt. Cr. L. 823 ; Cro. C. C. 145 (6th Ed.) ; Stark. 389 ; 1 Trcm. 240, 241. ASSAULTS. 59 dangcred ; and other wrongs to the said C. D. then and there did and committed, to the great damage of him the said C. D., and against the peace and dignity of the Commonwealth aforesaid. 49. For assaulting a Woman pregnant with a quick Child} The jurors for said Commonwealth, upon their oath present, that A. 13. , of in the county of laborer, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon one C. D., the wife of one E. F., did make an assault ; she the said C. D. being then and there pregnant with a (luick child ; and her the said C. D. did then and there heat, wound, and abuse, so that her life was there- by greatly endangered ; by reason whereof she the said C. D. afterwards, to vvil, on the day of in the same month of at B. aforesaid, did bring forth the said child, dead ; and odicr wrongs to the said C. D. then and there did and com- mitted, to the great damage of her the said C. D., and against the peace and dignity of the Commonwealth aforesaid. 50. For riding over a Person with a Ilorse.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on the day of at B. aforesaid, in the county aforesaid, in and upon the body of one C. D. an assault did make, and him the said C. D. did then and there beat, wound, and abuse ; and that the said A. B. did then and there, unlawfully, maliciously, and with great force and violence, ride and drive a certain horse, then and there under the guidance and command of him the said A. i>., against, upon, and over the body of the said C. D., whereby the said C. D. was then and there grievously wounded and bruised, and his life thereby greatly endangered ; and other wrongs then and there did and committed, to the great damage of him the said C. D., and against the peace and dignity of the Commonwealth aforesaid. » 3 Chitt. Cr. L. 831 ; Cro. C. C. 138 ; Stark. 366. * 3 Chitt. Cr. L. 823; Davis's Just. 275 (1st Ed.) from which this precedent is in substance taken. GO ASSAULTS. 61. Fo7- an Assault, and presenting a loaded Gun, and threat- ening to fire it} The jurors for said Commonwealth, upon their oath present, that A. 13., of in the county of laborer, on the day of now last past, at B. aforesaid, in the county afore- said, in and upon one C. D. an assault did make, [and him the said C. D. did then and there beat and abuse,] and that he the said A. 13. did then and there level and point at the body of him the said C. D. a certain gun, which he the said A. B. in both his hands then and there had and held, loaded with gunpow- der and leaden balls ; and did then and there, with the gun aforesaid so loaded, levelled, and pointed at the body of the said C. D., threaten to shoot the said C. D., and did thereby greatly terrify and frighten the said C. D. and endanger his life ; and other wrongs dien and there did and committed, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 52. For an Assault, and forcibly taking away a Receipt for a Deht.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on the day of now last past, with ibrce and arms, at B. aforesaid, in the county aforesaid, in and upon the body of one C. D. an assault did make, and him the said C. D. did beat and ill treat ; and that he the said A. B. then and there unlawfully, violently, and injuriously did seize and take from and out of the custody of him the said C. D., and against his will and consent, a certain receipt, [fiere describe the receipt as accurately as possible,'] and the same receipt the said A. B. then and there unlawfully and wilfully did withhold from the said C. D., and keep in his the said A. B's possession ; and other wrongs then and there did, to the great damage of him the said C. D., and against the peace and dignity of the Commonwealth aforesaid.^ 1 There is a similar precedent in 3 Chitt. C. L. 826. It is therein alleged, that defendant " beat and wounded prosecutor so that his life was greatly de- spaired of." The offence, as described in the close of Chitty's precedent, is nothing more than an assault with a loaded gun. See a similar precedent in 4 Went. 70. * 3 Chitt. Cr. L. 827, refers (o a similar precedent in Went. 437. 3 If the receipt had been taken by the consent of the owner, but had been fraudulently obtained, with a design, existing at the time, of withholding and detaining it, it would have amounted to a larceny. ASSAULTS. 61 53. For a violent Assault and wounding Prosecutor, with a Bayonet.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on the day of now last past, with force and arms, at aforesaid, in the countv aforesaid, in and upon one C. D. violently, wickedly, and maliciously did make an assault, and him the said C. D. did then and there beat, wound, and ill treat, so that his life was then and there greatly endangered, and that the said A. B., with a certain drawn weapon called a bayonet, which was then and there affixed to a certain musket, which he the said A. B. in both his hands then and there had and held, in and upon the said C. D. did make an assault, and did give to him the said C. D. one dangerous and grievous stroke and wound, in and upon the left side of the head of him the said C. D., of the length of one inch, and of the depth of two inches ; by means whereof the said C. D. was then and there put in great danger and peril of his life, and did dien and there labor under great pain and anguish for the space of days ; and other wrongs then and there did and committed, to die great damage of him the said C. D., and against the peace and dignity of the Com- monwealth aforesaid. 54. For an Assault and False Imprisonment.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon one C. 1). did make an assault, and him the said C. D. did then and there beat, abuse, and ill treat ; and him the said C. D. then and there unlawfully and injuriously, against the will and without the consent of him the said C. D., and without any legal warrant, authority, or jus- tifiable cause whatever, did imprison, detain, and hold in duress for die space of hours then next following ; and other wrongs and injuries then and tiiere did and committed, to the great damage of him the said C. D., and against the peace and dignity of the Commonwealth aforesaid. 1 3 Cliitt. Cr. L. S2G. This precedent is said to have been taken from Mr. J. Asher's paper book, vol. 24, p. 103. I have rejected what I consider the superfluous matter m this precedent. 2 Stark. Cr. PI. 3ri5, 3i)9 ; Cro. C. C. 135 (6th Ed.) The allegation in both these precedents, " that his life was greatly despaired of," is omitted. / / C'2 ASSAULTS. 55. For the same Offence, and obtaining Money for discharging the Prosecutor.^ The jurors Sec. [the same as in the next preceding precedent ; then add] and until he the said C. D. had paid him the said A. B. the snm of dollars, of the monies of him the said C. D., for his enlargement ; and other wrongs &ie. 56. For the same, and for obtaining a Note for discharging the Prosecutor. The jurors Sec. [as in precedent J\''o. 54; then add] and until he the said C. D., for his delivery from said imjjrisonment, had signed and given to the said A. B. a note under the hand of the said C. D., wherehy he the said C. D. promised to pay to the said A. B. the sum of twenty dollars ; and other wrongs &ic.^ 57. For entering a public House, making a JVoise therein, (as- saulting.) and threatening the Owner ivithbodily harm.^ The jurors for said Commonwealth, upon their oath present, that A. B.J of in the county of laborer, on the day of now last past, at B. aforesaid, in the county afore- said, unlawfully did enter into the dwelling-house of one C. D. there situate, (the same being licensed according to law as a tavern, and in which divers citizens of the said Commonwealth were then and there peaceably met and assembled,) with inten- tion to disturb the peace of the said Commonwealth ; and that the said A. B., so being in the said dwelling-house, did then and there, unlawfully, wilfully, injuriously, and obstinately, remain there for the space of one hour and more, without the license and against the will of the said C. D., and did then and there unlawfully, obstinately, and injuriously refuse to depart and go out of the said dwelling-house, upon the reasonable request of the said C. D., then and there made to him for that purpose ; and that the said A. B. did then and there unlawfully, vehe- mently, and turbulently menace and threaten great bodily harm to the said C. D., then and there being in his said dwelling- house, and did then and there make a great noise, in disturbance of the peace of said Commonwealth, and greatly misbehave himself in the same dwelling-house ; against the peace and dignity of said Commonwealth. [Md a count for a common as- sault.] ' Stark. 385. » Ibid. 386. ^ stark. Cr. PI. 396. ASSAULTS UPON OFFICERS. 63 ASSAULTS UPON OFFICERS. 58. For an Assault upon a Constable, in the execution of his Office."- The jurors of said Commoinvcalth, upon their oath present, that A. 13., of in the county of yeoman, on the day of now last past, with force and arms, at afore- said, in the county aforesaid, in and upon the body of one C. D., he the said C. D. being then and there a constable of the said town of legally authorized and duly qualified to discharge and |)erform the duties of said ofllce, and being then and there in the due and lawful exercise of the same, did make an assault, and him the said C. D. did then and there beat, abuse, and ill treat ; and in the due and lawful execution of his said office, did then and there unlawfully and knowingly obstruct, hinder, and oppose ; and other wrongs then and there did and commit- ted, to the great damage of him the said C. D., and against the peace and dignity of the Commonwealth aforesaid. 59. For an Assault vpon a Collector of a Turnpike Corpora- tion in the execution of his Office.^ The jurors for said Connnonwealth of Massachusetts, upon their oalh present, that A. 15., of B., in the county of yeoman, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon one C. D., he the said C. D. being then and there one of the collectors and receivers of the monies and toll payable 'by virtue of a certain act or law of this Commonwcalih, made and passed in the year of our Lord one thousand eight hundred and intiiled " an act," [Aere iujert the title of the act of incorporation correctly,~\ and being then and tl)ere in the due and lawful exe- cution of the said office of collector and receiver of such mon- ies and toll, did make an assault, and him the said C. D. did then and there beat, wound, and abuse ; and other wrongs then and there did and committed, to the great damage of him the said C. D., and against the peace and dignity of the Common- wealth aforesaid. » See similar precedents, do. C. C. 134, (Gth Ed.) ; Sta/k. 385; 3 Chitt. 832. This piecedent is more full than those above referred to. A second count for a common assault may be added. See note to precedent No. G\, post, * See similar precedents in 3 Chitt. 832; Stark. 387; Cro. C. C. 139, (6th Ed.) C4 ASSAULTS UPON OFFICERS. GO. For an Assault on a Dcptify Gaoler, in the execution of his Office.^ The jurors for said Commonwealth, upon their oath present, that A. B., of ill the county of laborer, on with force and arms, at aforesaid, in the county aforesaid, in and upon one C. D., he the said C. D. then and there being a deputy keeper of the Comnionwealtli's gaol in the said town of and county aforesaid, and then and there having the custody of divers persons lawfully confined as prisoners in said gaol, and being then and there in the lawful execution of his said office and duty of deputy keeper of said gaol, did make an assaidt, and him the said C. D. did then and there beat, wound, and abuse ; and other wrongs to the said C. D. then and there did and committed ; against the peace and dignity of the Com- monwealth aforesaid. (Add a count for a common assault.) Gl. For an Assault upon a Minister of the Gospel, ivherehy he tvas rendered incapable of discharging his Duty.^ The jurors for said Commonwealth, upon their oath present, that A.B., of in the county of yeoman, on at in the county aforesaid, with force and arms, in and upon one C. D., being then and there a settled and ordained minister of the gospel, in the said town of B., an assault did make, and him the said C. D. did then and there beat, wound, and ill treat ; and that he the said A B., with both his fists, did strike divers grievous and dangerous blows upon the head, face, and other parts of the body of him the said C. D., whereby he was giievotisly and dangerously wounded and bruised ; by means whereof the said C. D. became sick and debilitated for the space of days next ensuing,* and during all that time suffered great bodily pain and anguish ; and was also thereby prevented from, and rendered incapable, during all the time last mentioned, of officiating in, and performing the duties of his office and function, as a settled minister of the gospel in the 1 Stark. 398. 2 3 Chitt. Cr. L. 827, 828 ; Cro. C. A. 266, 407, These forms may be adopted, mutatis mutandis, for assaults upon all other officers, as sheriffs, coroners, &c. Upon all indictments for assaults upon offi- cers, the party may be found not guilty of assaulting the officer in the execution of his office, but guilty of a common assault, according to the nature of the evidence. ASSAULTS, WITH A FELONIOUS INTENT. C5 said town of and other wrongs then and there did and committed, to the great damage of him the said C. D., and agn.nst the peace and dignity of the Commonwealth aforesaid. (Ml a second count, leaving out the allegation thai he was pre^ vented from ojhcmtmg, ^-c, and a third count for a common assault and battery.) '' ^"""'""t ASSAULTS, WITH A FELONIOUS INTENT. C2. For an Assault, with intent to maim} The jijrors for said Commonwealth, upon their oath present, tliat A. B., ol m the county of yeoman, on the Clay o now last past, with force and arms, at B. aforesaid, ,n the county aforesaid, in and upon the body of one C. U., did make an assault, he the said A. B. being then and here armed w.th a dangerous weapon, called a knifef which he the said A. B. m ns nglu hand then and there had and held, vvwth an n.tention Inm the said C. D. with set purposes and afore bought mal.ce unlawfully to maim and disfigure, by un- awfully cutting off the left ear of him the said C. D., against he peace of said Commonweahh, and contrary to the fonn of the statute in such case made and provided. 63. For a felonious Assault, with a drawn Sword, with intent to murder? The jurors for said Commonwealth, upon their oath present, that A. B, of ,n the county of laborer, on Thjs precedent., drawn upon the fourth and fifth sections of the statute of Massachusetts of 1804. c. 123. See also Com>nnnu:ealth v. mu^ell et al., 7Mass. R. 245 m ^h.ch it is decided that Mnyhem is no felony, either at com- mon law or by the above menUoned statute. It is not, therefore, by that stat- ute, a felonious assault. This precedent n,ay be used for all the dilTerent species of Maiming, making tbt?: ^^: " ''' '-' - " --=^ -' - ^-.>. .< euttSg otr o? The party may be acquitted upon thi, indictment of the felonious intent, and found guilty of a common assault. This form will, of course, answer in all 9 G6 ASSAULTS, WITH A FELONIOUS INTENT. with rorce and arms, at in the county aforesaid, in and upon one C. D., with a dangerous weapon, to wit, with a drawn sword, with which he the said A. 13. was then and there armed, and which lie the said A. B. in his right liand then and there had and held, did make an assault, with an intention him the said C. D., with the drawn sword aforesaid, then and there feloniously, wilfully, and of his malice aforethought, to kill and murder ; ngaiust the peace of said Comtnouweallh, and contra- ry to the form of the statute in such case made and provided. 64. For a felonious Assault^ and casting into a Pond, with in- tent to suffocate and drown} The jurors for said Commonwealth, upon their oath present, that A. 13., of in the county of lahorcr, on with force and arms, at in the county aforesaid, in and upon the body of one C. D., with a dangerous weapon, to wit, with a large stick, which he the said A. B. in both his hands then and there had and held, did make an assault, and him the said C. D. did then and there beat, wound, and abuse ; and that he the said A. B., with both his hands, did then and there un- lawfully, violently, and maliciously cast, push, and throw the said C. D. ipto a certain pond there situate and being, wherein there Vv'as a large quantity of water, and did then and there keep, press down, and confine the said C D. in and under the said water, for the space of five minutes, with intention him the said C. D. then and there feloniously, wilfully, and of his mal- ice aforethought, to suffocate and drown in the said water ; and him the said C. D , by means thereof, w'ilfully, feloniously, and of his malice aforethought, to kill and murder; and other wrongs to the said C. D. then and there did, to the great dam- age of him the said C. D. ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 65. For a felonious Assault, with intent to commit a Rape.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on other cases of felonious assault vpith dangerous weapons, varying the de- scription of the weapon, according to the fact ; as, " with a certain dange- rous weapon called a pistol, loaded with gun-powder and leaden bullets." 1 See other precedents, 3 Chitt. Cr. L. 829 ; Stark. 392. * See similar precedent, Cro. C. C. 136, (6th Ed.) ASSAULTS, WITH A FELONIOUS INTENT. 67 with force and arms, at in the county aforesaitl, in and upon the body of one C. D. did make an assault, and her the said C. D. did then and there beat, wound, and abuse, with in- tent iicr the said C. D. then and there feloniously to ravish and carnally krlow, bij forcc,^ and against her will ; against the peace of said CominonuxMlih, and contrary to the form of the statute in such case made and provided. CO. For a felonious Assault, ivith latent cnrnalhj to know and abuse a Female Child under the Age of ten Years. The jurors for said Commonwealth, upon their oath present, that A. ii., of in the county of laborer, on the day of now last past, with force and arms, at afore- said, in the county aforesaid, in and upon one C. D., a woman child under the age of ten years, to wit, of the age of eight years, did make an assault, and her the said C. D. did then and there beat, abuse, and ill treat, with intent her the said C. D. wickedly and feloniously to carnally know and abuse ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. C7. For a feloniom Assault upon a Woman, hy tico Persons, with intent that one of them should ravish herr The jurors for said Commonwealth, upon their oath present, that A. B. and C. D., both of in the county aforesaid, la- borers, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon the body of one E. F. did make an assault, and her the said E. F. did then and there beat, wound, and abuse, with an intent that he the said C. D. should then and there feloniously ravish and carnally know her the said E. F. by force and against her will ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' The words " htj force" are not used in the English precedents, but they are a part of the definition of the crime. Hawkins's definition is " an ofTcnce in having carnal knowledge of a woman, by force and against her will." Hawk. B. l,c. 41, § I. The statute of Massachusetts 1805,. c. %7, adopts the same definition. « Cro. C. C. 137, (6th Ed.) 68 ASSAULTS, WITH A FELONIOUS INTENT. 68. For on Assault u'ith intent to roh} The jurors for said Commonwealth, upon their oath present, that A. 13., of in the county of laborer, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon one C. D., with a certain dangerous weapon called a pistol, then and there loaded wiih gunpowder and leaden bullets, with which he the said A. B. was then and there armed, and which he the said A. B. in his right hand then and there had and held, and also with other actual violence, did make an assault, with intent the monies, goods, and chattels of him the said C. D., from the person and against the will of him the said C. D., feloniously and by force and violence, and by assault and putting him in bodily fear and danger of his life, to steal, take, and rob ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 69. For an Assault upon a Boy, with Intent to commit the Crime against JVature.~ The jin-ors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on the day of now last past, with force and arras, at B. aforesaid, in the county aforesaid, in and upon the body of one C. D., a male child, of the age of eight years, did make an assault, and him the said C. D. did then and there beat, wound, and abuse, with an intent tlie horrid, detestable, and sodomitical crime against the order of nature, with him the said C. D. then and there feloniously to do and commit, by having a venerial affair with the said C. D., and by then and there having carnal know- ledge of the body of him the said C D. ; against the peace of said Commonwealth, and against the form of the statute in such case made and provided. 70. For an Assault, with Intent to steal from the Person.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on the day of June now last past, with force and arms, at B. aforesaid, * 1 Mass. Laws, stat. 1804, c. 143, § 9. There is a precedent in Starkie, and another in Cro. C. C. for this offence, each of which has been decided to be defective. See Stark. 404, and Cro. C. C. 152, 153, note (a.) » Altered from Stark. 387, 409. 3 Mass. Stat. 1804, c. 143, § 8, 9.' BARRATRY. (JQ in the county aforesaid, in and upon the body of one C. D. wilh a dangerous weapon, to wit, with a pistol, did make an as- sault, and hiui the said C. D. did then and there beat, wound and abuse w-^ith intent the monies, goods, and chattels of him the' said C. D., from the person of him the said C. D., openly and violently [o; pnoihj and fraudulently, as the case may be] to stea , take, and carry away ; against the peace of said Common- wca ih, and contrary to the form of the statute in such case made and provided. BARRATRY. 7 1 . Indictment for being a common Barrator.^ The jurors for said Commonwealth, upon their oath present, that A. R., of in the county aforesaid, yeoman, on the f^y o^ in t^'c year of our Lord one thousand eight hundred and twenty, and on divers other days and times, as well before as afterwards, was, and yet is, a common barrator,^ and that he the said A. B., on the said day of and on divers other days and times, as well before as afterwards, at aforesaid, in the county aforesaid, divers quarrels, strifes, suits, and controversies, «imong the honest and quiet citizens of the said Commonwealth, then and there did move, procure, stir up, and excite ; against the peace and dignity of the Common- wealth aforesaid. 72. Against an Attorney, for suing a Person in the JVame of one who was ignorant of and had no Interest in the Suit.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county aforesaid, gentleman, on the day of in the year of at B., in the county aforesaid, being then an attorney of the Court of Conmion Fleas ior the said county of duly admitted, sworn, and authorized to practise as an attorney of said court, had in his 1 2 Chitt. 113 ; Trem. P. C. 224; Cro. C. C. 178, (6th Ed) ^ These words are absolutely necessary, and cannot be supplied by others of (he same signification. 3 Chitt. C. L. 234, note (q) ; 6 Mod. 311 ; 2 Saunders, 308, note (1) ; 1 Sid. 282. ' See 4 Black. Com. 134. Blackstone refers to no authority for the law laid " down in the passage here quoted. 70 BARRF.TnV. custody and possession a certain promissory note of hand, bear- in"- date he. [here insert n copy, or the substance of the note,'] an^d that he the said A. B. did then and there, unlawfully and fratuhilently, and with a design to injure and oppress one C. D., commence an action at law upon the aforesaid promissory note of hand, to the Court of Common Pleas then next to be holden at within and for the said county of on the Tuesday of in the year of our Lord one thousand eight hundred and against the said C. D., as the maker of said note, in the name of one E. F., of he. whhout the know- ledge, privity, or consent of him the said E. F., and without any power or authority from him therefor ; he the said E. F. then and there having no interest, property, or concern in the said note, either as endorser thereof, or in any other way or manner whatever ; and he the said A. B. the aforesaid action, so as aforesaid unlawfully and fraudulently commenced, did un- lawfully, frandulently, and vexationsly prosecute to final judg- ment and execution, with intent iiim the said CD. to injure, harass, and oppress, and also with intent unlawfully and op- pressively to inhance and augment the cost to be taxed for the benefit of him the said A. B. in the suit and action aforesaid, in violation of his duly as an attorney of the said Court of Com- mon Pleas, to die great injury and oi)pression of the said C. D., and against the peace and dignity of the Commonwealth afore- said.^ 73. Against an Attorney for advancing Monetj to procure him- self to he retained, in the Collection of a Note.- The iurors for said Commonwealth, upon their oath present, that A. B., of he, on he, at &c., being then an attorney of the Court of Common Pleas for the said county of duly admitted, sworn, and authorized to practise as as attorney of said court, did then and there loan and advance to one C. D. the sum of dollars, with intent thereby to procure himself 1 Judgment was rendered at nisi prius upon an indictment, from which this precedent is taken, in the Supreme Judicial Court of Massachusetts, in the county of Suffolk. 2 On the statute of Massachusetts of 1811, c. 62, prohibiting attornies and other officers of the government, magistrates, sheriffs, &c. from purchasing notes and other demands, for the purpose of making gains in the collection thereof. This statute consists of but one section ; but it creates (as it is said) more than twenty distinct offences ! The penalties are to be recovered by in- dictment, " or by action." BASTARD. 71 to be retained as an attorney in the collection of a certain note of hand hereafter mentioned, and widi intent therebv to procure and obtain of him the said C. D. a certain promissory note for the payment of money, made and given by one E. F. to [here set forth the note in substance and to the purport of the same,'] for the intent and purpose of making to himself gain and profit, from the writs and fees arising in the collecting thereof, by a suit at law ; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and provided. BASTARD. 74. Indictment against a Woman for concealing Iter Pregnancy. ^ The jurors for said Commonwealth, upoii their oath present, that A. B., of in the county of spinster, on the day of now last past, at aforesaid, in the county aforesaid, being then and there pregnant with a male^ child, did then and there conceal her pregnancy, and was then and Uiere willingly delivered in secret by herself of the said m,ak child, the issue of her body ; which child, by the laws of this Commonwealth, was a bastard ; against the peace of said Commonweahh, and contrary to the form of the statute in such case made and provided. 75. .^gainst a Woman for concealing the Death of a Bastard Child. The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of spinster, on the day of now last past, at B., in the county afore- said, being then and there pregnant with a male bastard child, did bring forth the said child, of the body of her the said A. B., and was then and there willingly dehvered thereof, alone,^ and ' This and the following precedent are drawn upon the statute of Massachu- setts of 17S4, c. 42, § 1. They are precisely the same as have been adopted and used in the Supreme Court of Massachusetts since the passing of the statute. * The sex is material to be averred ; Stark. 38.3, note (f ) 2 This word i? not necessaiy ; Stark. 383, note (h.) But the words "Id secret by herself" are made necessary by the first section of the statute last before referred to. 72 BLASPHEMY. in secret by herself; which said child, so bcinj^ born, and so bein^ the issue of the body of the said A. B., if it were born alive, was, by the laws of this Commonwealth, a bastard ; and that she the said A. B. did then and there endeavour, privately by herself, [or- by the procurement of one C. D., if such tvere the fact,] to conceal the death of said bastard child, the said issue of her body, so that it might not come to light, whether it were born alive or not, or whether it were murdered or not ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. Bawdy-House. — See " Nuisance." Bestiality. — See " Sodomy." Bigamy. — See " Polygamy." MuRDEji OF Bastakd CHILDREN. — See " Murdcr," JJOSt. BLASPHEMY. 76. For Blasphemi/, by blaspheming the holy JVame of God} The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of yeoman, on the day of now last past, at B. aforesaid, in the coun- ty aforesaid, being a person of an immoral and irreligious mind and disposition, and intending the holy name of God to dishonor and blaspheme, did then and there wilfully commit the heinous crime of blasphemy, and did wilfully blaspheme the holy name of God, by denying, cursing, and contumeliously reproaching God, his creation, government, and final judging of the world ; that is to say, the said A. B., then and there, in the presence and hear- ing of divers good and worthy citizens of the said Common- wealth, did wilfully and blasphemously speak, pronounce, utter, and publish, these profane and blasphemous words following,^ to 1 This and the three following precedents are original by the author, and are drawn upon the statute of Massachusetts of 1782, c. 8, and are in the form of the indictments used in the Supreme Court of Massachusetts, See prece- dents for blasphemy at common law, and the note to the same, Post. * The blasphemous words must be set forth, that the Court may judge whether they are blasphemous or not. 1 Stark. 114 ; Str. 686. RLASPHEsnr. 73 wit, [here insert the words spoken and published, verbatim, and with proper inuendoes, if the tvords require tV;] in manifest con- tempt of religion, good government, good morals, and good man- ners ; against the peace of said Conmionwealtli, and contrary to the form of the statute in such case made and provided. 77. For Blasphemy, by cursing and reproaching Jesv^ Christ. The jurors for said Commonwealth, upon their oath present, that A. B., of in the county aforesaid, laborer, being a person of an immoral and irreligious mind and disposition, and intending the Christian religion to dishonor, defame, and vilify, on at in the county aforesaid, did wilfully commit the heinous crime of blasphemy, by wilfully cursing and re- proaching Jesus Christ ; that is to say, the said A. B. then and there, in the presence and Ircaring of divers good and worthy citizens of said Coinmonwcahh, did wilfully and blasphemously speak, pronounce, utter, and publish these profane and blasphe- mous words following, to wit, [here insert the words spoken, ver- batim, ivith proper inuendoes, if the words require it ;^ to the great dishonor of our Lord and Saviour Jesus Christ and of his holy religion, in manifest contempt of good government, good morals, and good manners ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 78. For Blasphemy, by cursing and reproaching the Holy Ghost. The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, being a person of an immoral and irreligious mind and disposition, and intending the Christian religion to revile and bring into contempt, on the day of at B. aforesaid, in the county afore- said, did wilfully commit the heinous crime of blasphemy, by wilfully cursing and reproaching the Holy Ghost ; that is to say, the said A. B. then and there, in the presence and hearing of divers good and worthy citizens of said Commonwealth, did wilfully, profanely, and blasphemously speak, utter, publish, and pronounce, these prcfane and blasphemous words following, to wit, [here insert the words spoken, verbatim, with proper inuen- does, if the words require it ;'\ to the great dishonor of religion, good morals, and good manners ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 10 74 ulasphemy. 79. For Blasphcjtii/, by cursing mid contumdioushj reproaching the Holy Scrijjtures. The jurors &c., upon their oath jjresent, that A. B., of iti tlie county of yeoman, on the clay of at B. aforesaid, in the county aforesaid, being a person of an immoral and irreligious mind and disposition, and intending the holy Word of God to bring into contempt, reproach, and ridicule, did commit the heinous crime of blasphemy, by wilfully cursing, and contumeliously reproaching the holy Word of God ; that is to say, the canonical scri|)tures contained in the books of the Old and New Testaments, and by exposing them to contempt and ridicule, which books are as follows, to wit, [here insert the names of the books from Genesis to Revelations ; ] that is to say, the said A. B. then and there, in the presence and hearing of divers good and worthy citizens of said Commonwcalih, did wilfully, profane- ly, and b asphemously, speak, pronounce, utter, and publish, these profane and blaspliemous words following, to wit, \Jiere in- sert the ivords spoken, verbatim, with proper imiendoes, if the words require it ;] to the great dishonor and manifest injury of religion, good morals, and good manners; against the peace of said Commonwealth, and contrary to the form of the statute in case made and provided. 80. For Blasphemy ; at Common Law} The jurors &c., upon their oath present, that A. B., of B., in ' This precedent is taken from Chitt. C. L. 14, and is, in substance, the same as the precedent in Trem. P. C. 225,'22G. There are no similar precedents io Starkie or the Cro. C. C. There are some variances in this precedent from that in Treraaine, from which it was probably copied. In Tremaine's precedent it is alleged, that defendant's intent was to blaspheme " God, and our Lord Jesus Christ, the Saviour of the world, and the Holy Ghost." In Chitty's precedent, the " Holy Ghost " is left out. In the former, the words true Christian religion are used. In the latter, the word true is omitted. Blasphemy against God and religion is indictable at common law. 1 East, P. C. 3 ; 2 Chit. C. L. 14, note (a) ; and Hawk. b. 1, c. 5, § 1, 2. In the case of The People v. Muggles, 7 Johns. R. 290, the general form of the indictment corresponds with those in Chitty and Treraaine. The prefatory averments and conclusion are the same. But the precedent itself is not here inserted. The horrid and disgusting character and terms of the blasphemy in that case, are too revolting to be placed upon record oftener than necessity requires. There is also another precedent in another ancient book, entitled " OlBcium Clerici Pacis," p. 192, 193, which is not here inserted for the reason last given. BRIBERY, 75 the county of yeomnn, devisinj^ and intendins; to scanda- lize and yilily the true Christian religion, as received and pub- licly prolessed widiin this (Commonwealth) ; and to blaspheme God and our Lord Jesus Christ, the Saviour of the world, on at in the county aforesaid, bavins; and holding in his hands, a certain cup of wine, unlawfully, wickedly, and blas- phemously, in the presence and hearing of divers good and wor- thy citizens of the said Commonwealth, spoke, pronounced, and with a lo-id voice published, these profane and blasphemous words following, that to say, « Here 's a health to Father, Son, and Holy Ghost," (meaning Almighty God, Jesus Christ the Saviour of the world, and the Holy Spirit;) and immediately thereupon, then and tbere drank the wine from ihe said cup ; to the great dishonor of Almighty God, in contempt and dis- grace of the Holy Trinity, to the great scandal of the profession ot the Chrisuan religion, and against the peace and dignity of tlie Commonwealth aforesaid. BRIBERY. 81. Against a Justice of the Court of Common Pleas, for accept- ing a Bribed The jurors S:c., upon their oath present, that A. B., of in the county aforesaid, Esquire, on at in the coun- ty aforesaid, was one of the justices of the Court of Common Pleas, k.c. [here state the style of the Court,'] duly and le'^ally appointed, qualified, and sworn to discharge and jJerforirTthe duties of that office ; the same being an office of importance and trust, concerning the administration of justice within this Com- monwealth. And that the said A. B., being then and there such justice of said Court of Common Pleas as aforesaid, conrrivin*' and intending the duties of his said office, and the trust and confidence thereby reposed in him, to prostitute and betray, did then and there unlawfully and corruptly accept and receive of one C. D. the sum of dollars, as a bribe and pecuniary re- ' This offence is punishable at common law. See 4 Bl, Com. 139 • 3 Ins( 147; Rexv. FaugAa?i, 4 Burr. 2500 ; 2 Chit. C. L. G81, and authorities there - quoted. 76 BRIBERY. ward, to influence and induce him the said A. B. to [Acre state the facts relative to the subject-matters of the biibe ;^ and that he the said A. B. did thereby unlawfully, wilfully, and corrnpdy, prostitute, violate, and betray, for the bribe and pecuniary reward aforesaid, so as aforesaid, by iiim the said A. B., in his said office, taken, accepted, and received, the duties of liis oHice, and the trust and confidence in him therein and thereby reposed ; to the great scandal, dishonor, and prostitution of the public justice of said Commonwealth, and against the peace and dignity of the same Commonwealth. 82. For attempting to bribe a Justice of the Court of Common Fleas."- The jurors he, upon their oath present, that A. B., of in the county of Esquire, on the day of at B. aforesaid, in the county aforesaid, was one of the justices of the Court of Common Pleas, [here state the style of the Court,'] duly and legally appointed, qualified, and sworn to dis- charge and perform the duties of said office ; the same being an ofiice of trust and imporlance in the administration of public justice within the said Commonweallh ; and that C. D., of 'in the county aforesaid, yeoman, on the same day of in the year aforesaid, at B., in the county aforesaid, \tell knowing the premises, but unlawfully and corruptly devising and intending the said A 1>. to seduce and corrupt, and to tempt him to vio- late, prostitute, and betray the duties of his said office, and the trust and confidence thereby reposed in him, did then and there unlawfully and corruptly propose and offer to pay to the said A. B., being then and there such justice as aforesaid, the sum of dollars, as a bribe and pecuniary reward, to induce and influence him the said A. B. to violate, betray, and prosfitute the duties of his said office, by [here insert the facts concerning which the bribe was offered ; ] to the great injury and dishonor of him the said A. B., and against the peace and dignity of the Commonwealth aforesaid. » Attempt to bribe, though it does not succeed, is indictable. 2 East, 5 ; 1 East's Rep. 183 ; Rex v. Vaughan, 4 Burr. 2491.. BRIBERY. 77 83. For bribing a Person to 'procure an Office of Trust : On the Provincial iStatvte of Massachusetts o/J75S.^ The jurors &tc., upon their oath present, that A. B., of in the county of yeoman, on the day of at B. aforesaid, in the county aforesaid, did unlawfully and cor- ruptly give and engage to pay to one C. D. the sum of dollars as a consideration and pecuniary reward in order to in- duce liim the said C. D., by his interest and influence, to pro- cure and obtain for him the said C. D. the office of \Jiere state the name and description of the offce^, which said office was then and there a place of trust within the said Commonwealth ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 84. For accepting a Bribe to procure an Office of Trust : On the Provincial Statute of Massachusetts o/*1758. Tiie jurors &ic., upon their oath present, that A. B. &;c., on he, at &ic., did unlawfully and corruptly accept, take, and re- ceive of one C. D. the sum of dollars, as a consideration and pecuniary reward for procuring for him the said A. B. the office of [/tere insert the name and description of the office^y which office was then and there a place of trust within this Commonwealth ; against the peace, and contrary to the form of tlie statute in such case made and provided. 85. For offering to bribe a Commissioner of the Revenue of the United States.^ The jurors Sec, upon their oath present, that A. B., of in the district of yeoman, on at and within the jurisdiction of this court, wickedly, advisedly, and corruptly did solicit, urge, and endeavour to procure one C. D., he the said C. D. then and there being a commissioner of the revenue of the said United States, and then and there interested and employed in the execution of the duties of the said office, to receive proposals for contracting to build a light-house on Cape Hatteras, and a beacon on Shell Castle Island, for contracting with and giving a preference to him the said A. B., for the ' Mass. Laws, vol. ii. Appendix, 1039, (Ed. of 1801.) This'statute has never been revised, and is the only existing statute in Massachusetts upon the subject of bribery. 2 2 Dall. 386. 78 RniREUY. buikling of the said li2;lit-honsc and beacon ; and in order to pre- vail uj)on him the said C. D. to ac^rec to give him die said A. IJ. the preference in, and the bcneht of such contract, he the said A. B. then and there did wickedly, advisedly, and corruptly offer to give the said C. D., then and there being commissioner of die revenue of the United States as aloresaid, the sum of dollars ; in contcm|)t of the laws and constitution of the said United States, and against die peace and dignity of the said United States. SG. For endeavouring to bribe a Constable.^ The jurors &c., upon their oath present, that heretofore, to wit, on at one A. B. Esquire, then and yet being one of the justices of die peace in and for die county of duly qualified, appointed, and sworn to discharge and perform the dunes of said office, did then and diere make and issue a certain warrant under his hand and seal, in due form of law, bearing date the day and year aforesaid, directed to any of die consta- bles of the town of in the county aforesaid, thereby com- manding them, upon sight thereof, to take and bring before him the said A. B., so being such justice as aforesaid, [or some other justice of the peace for the said county, if such be the ivarrant,] the body of one C. D., late of in the county aforesaid, to an- swer [as in the warrant,] and which said warrant afterwards, to wit, on the day of and year aforesaid, at afore- said, in the county aforesaid, was delivered to E. F. of in the county aforesaid, yeoman, he the said E. F. then being one of the constables of the said town of aforesaid, duly appoint- ed and qualified to discharge the dudes of said oflice of constable, to be executed in due form of law. And the jurors aforesaid; upon their oath aforesaid, do further present, that G. H., late #f in the county aforesaid, laborer, well knowing the premises, but contriving and unliwfully intending to pervert the due course of law and justice, and to prevent the said C D. from being arrest- ed and taken under and by virtue of the warrant aforesaid, after- wards, to wit, on the day and year aforesaid, at aforesaid in the county aforesaid, unlawfully, wickedly, and corruptly, did offer unto the said E. F., so being constable as aforesaid, and having in his custody and possession the said warrant, so deliv- ered to him to be executed as aforesaid, the sum of dol- lars, if he the said E. F. would refrain from executing the said warrant, and from taking and arresting the said C. D. under I Archb. Cr.Pl. 322. BRIBERY. 79 and by virtue of the same warrant, for and during fourteen days irom that time, that is to say, from the time he the said G. H so ofFered the said sum of to the said E. F. as aforesaid; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said G. If., in manner and form aforesaid, did attempt and endeavour to bribe tlie said E. F., so being constable as afore- said, to neglect and omit to do his duty as such constable, and to relrain h-om taking and arresting the said C. D. under and by virtue ol the warrant aforesaid ; against the peace and dignity of said Commonwealth. 87. For Bribery of a Judge of the United States : On the act of .Ipril 30, 1790, ^21} The jurors &:c., upon their oath present, that A. B., of m the district of on at within the district afore- said, did give to one C. D. of &:c., he die said C. D. being then and there a judge of [litre insert the style of the Court} duly and legally apj)ointed and qualified to discharge the duties of that olhce, the sum of dollars, as a bribe, present, and re- ward, to obtain and procure the opinion, judgment, and decree ol him the said C. D., in a certain suit [controversy or causel then and there depending before him the said C. D., asjudtjeas aloiesaid, of the said court: to wit [Acre state the nature c^' the suit ; ] the said ollice of judge of die said court being then and there an office and trust concerning the administration of justice within the said United States ; against the peace of said United States, and contrary to the form of the statute thereof in such case made and provided. 88. For giving a Bribe to the President or Directors of the Bank of the United States: On the act of March 3, IS 19 § 4.2 J ^ ■, The jurors &c., upon their oath present, that A. B. of &c., in the district aforesaid, genUeman, on at did ""ive the sum of dollars to one C. D. of &cc. [or if any other bribe mentioned in the statute, state it,] he the said C. D. being then and there the president of the bank of the United States, [or one of the directors of the bank of the United States or presi- dent or director of one of the branch banks of the United States, established at as the case may be,] as a bribe, present, and re- ward, to obtain and procure the opinion, vote, and interest of the ' Gord. Digest, p. 713, art. 3635. 2 Gord. Digest, art. 3642. 60 BRIBERY. said C. D., the said president of the said bank of the United States, [or director thereof, as the fact may be,] in a certain elec- tion [^hcrc state the matter or thins; which was the question before the president and directors i^t'.] which came hclbre tiie said president and directors for decision, in relation to the interest and mana;i;einent of the business of the said bank ; against the peace of said United States, and against the form of the statute thereof in such case made and provided.^ 89. Against an Officer of the Customs for receiving a Bribe for a false Entry of a Vessel, Goods, Sfc. : O/i the Act of the United States of March 2, 1719, ^ 88.~ The jurors Stc, upon their oath present, that A. B., of&:c.,on &;c., at &.C., he the said A. B. being then and there an oflicer of the customs, to wit, ^lere state the name of the officer, and the place where he discharged his duty, and where the custom-house was established,^ did directly and corruptly take and receive of one C. D., of ^c, the sum of dollars, as a bribe, reward, and recompense for permitting him the said C. D. to make a false entry of a certain vessel, called the [here state the name of the vessel,^ and of the goods and cargo on board the same, to wit, [here state the facts relative to the false entry, how it was done, and the fraud relative to the false entry of the cargo or goods ; ] against the peace of the said United States, and against the form of the statute thereof in such case made and provided. Burying Places. — See " Sepulchres of the Dead." Burning. — See " Arson." Bridges. — See " Nuisance." ' The statute inflicts the same penalties upon the oflficer of the bank who accepts the bribe. 2 Gord. Digest, art. 2014. BURGLARY, &C. 81 BURGLARY : AND OTHER BREAKING AND ENTKKING OF BUILDINGS. 90. Indictment for Burglary at Common Law} The jurors Sec, upon their oath present, that A. B., late of in the county of laborer, on about the hour of one in the night of the same day, with forc6 and arms, at in the county aforesaid, the d well ing- house of one C. D. there situate, feloniously and burglariously did break and enter, uidi intent the goods and chattels of the said C. D., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away ; and one gold watch of the value of fifty dollars [descriht the property and value of each article according to the fict^ of the goods and chattels of the said C. D. in the dweilinq-house aforesaid then and there being found, then and there (eloniously and burglari- ously, did steal, take and carry away ; against the peace and dig- nity of the Commonwenlih aforesaid. 91. For a Burglary icith intent to steal. '^ The jurors Sic, upon their oath present, that A. B., of in the county of laborer, on about the hour of one in the night of the same day, with force and arms, at aforesaid, in the courity aforesaid, the dwelling-house of one C. D. there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said C I)., in the dwelling-house aforesaid then and there being found, then and there feloniously and burglariously to steal, take, and carry away j against the peace of said Commonwealth, [^if there he a statute punishing the offence,] and contrary to the form of the statute in such case made and provided. ' Stark. Cr PI. 414 , 3 Chitt. C. L. 1100. See the notes both in Starkie and Chitty, as to the different alie£;ations in the indictment. They are nearly the same in both. See also a precedent in Cro. C. C. 203, (6th Ed.) in which the words " with intent the good* and chattels of the said C. D. &c., in the said dwelling-house then and there being, feloniously and burglariously to steal &c." are omitted. * 3 Chitt. C. L. 1101 ; 2 Leach, 712; Vandercourt and Abbot's case. 11 83 BURGLARY, hc. 92. For a Burglary, Defendant being armed with a dangerous IVenpun} The jurors for said Commonwealth, upon iheir oath present, that A. B., of in the couniy of lahorer, on the day of about the hour of eleven in the night of the same day, with force and arms, at aforesaid, in the county aforesaid, the dwellln^-housc of one C. D. diere situate, feloni- ously and burglariously did break and enter, with intent the goods and chattels of the said C. I), in the dwelling-house afore- said then and there being found, feloniously and burglaricAisly to steal, take, and carry away ; he the said C. D. and divers others of his family being then and there lawfully in the said dwelling-house; and he the said A. B. being then and there, at the time of breaking and entering said dwelling-house as afore- said, armed with a certain dangerous weapon called a pistol, which was then and there loaded with gunpowder and leaden bullets; and one silver tankard of the value of fdiy dollars, ol the goods and chattels of the said C D. in the dwelling-house afore- said then and there being found, then and there feloniously and burglariously did steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 93. For a Burglary by breaking out of a Dive.lling-house," The jurors &;c., upon their oath present, that A. B., of in the county of laborer, on the day of about the hour of two in the night of the same day, at B. aforesaid, in the county aforesaid, having entered, and then and there being in the dwelling-house of one C. D. there situate, with intent the goods and chattels ol him the said C. D. in the dwelling-house aforesaid then and there being, feloniously and burglariously to steal, take, and carry away ; one pocket-book of the value of one dollar, and sundry bank notes, amounting together to the sum of fifty dollars, and of the value of fifty dollars, of the goods and chattels of him the said C. D., in the said dwelling-house of him the said C. D. then and there being found, then and there, with force and arms, feloniously did steal, take, and carry away ; and that he the said A. B. being so as aforesaid entered, and in the said dwelhng-house, with the said felonious intent, and having com- 1 On the first section of the statute of Massachusetts, 1805, ch. 101. 2 Ibid. BURGLARY, &,C. 83 mitted the felony and larceny aforesaid, and being then and there armed with a certain dangerous weapon called a cutlass, on the same day of aforesaid, in the year aforesaid, about the hour of two in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, the same dwelling- house then and there feloniously and burglariously did break to get out of the same, and then and there did break and get out of the same, he the said C. D. and divers others of his family being then and there lawfully in his dwelling-house ; against the peace of said Commonwe;dth, and contrary lo the form of the statute in such case made and provided. 94. For Jhirfrlary, icherc the Prisoner armed himself with a dangerous Weapon in the Dwelling-house.^ The jurors &.C., upon their oath present, that A. B., of &ic., on the day of now last past, about the hour of two in the night of the same day, wiili force and arms, at B. afore- said, in the county aforesaid, the dwelling-house of one C. D. there situate, feloniously and burglariously did break and enter, with intent the goods, chattels, and money of the said C. D., in the dwelling-house aforesaid then and there being, feloniously and burglariously to steal, take, and carry away ; he the said C. D., and divers others of his family, being then and there lawfully in said dwelling-house ; and that he the said A. B. having then and there, in the dwelling-house aforesaid, armed himself with a certain dangerous weapon called a fire-shovel, ten linen shirts of the value of twenty dollars, and sundry pieces of silver coin called Spanish milled dollars, amounting together to the sum of ten dollars, and of the value of ten dollars, of the monies, goods, and chattels of him the said C. D., then and tliere in the dwelling-house aforesaid being found, then and there feloniously and burglariously did steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 95. For Burglary, where the Prisoner committed an Assault upon a Person lawfully in the House? The jurors &:c., upon their oath present, that A. B,, of B., in the county aforesaid, laborer, on the day of now last past, about the hour of eleven in the night of the same day, ' On the first section of the statute of Massachusetts, 1805, ch. 101. « Ibid. 84 BURGLARY, &C. with force and arms, at B. aforesaid, in the county aforesaid, the dwellin2;-house ofone C. D. there situate, feloniously and bur- glariously did break and enter, with intent the goods and chattels of the said C. D., in the dwelling-house aforesaid then and there being, feloniously and burglariously to steal, take, and carry away ; he the said C. D., and divers others of his family, being then and there lawfully in the said dwelling-house, and that he the said A. B. then and there, in and upon one E. F., who was then and there lawfully in the said dwelling-house, feloniously and burglariously an actual assault did make, and him the said E. F. did then and there beat, wound, and abuse, and ten pieces of gold coin, called eagles, of the value of one hundred dollars, of the monies' of him the; said CD., then and there in the dwelling-house aforesaid being found, feloniously and burglari- ously did steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 96. Burglary against the Principal, and others present, aiding, assisting, ^'C.^ The jurors &:c., upon their oath present, that [draw the in- dictment against the principal, conformable to the foregoing pre- cedents, as the case may be, and then proceed as follows.] And the jurors aforesaid, upon their oath aforesaid, do further j)re- sent, that A. B., of in the county of laborer, at the time said felony and burglary was committed, in manner and form aforesaid, to wit, on the said day of in the year aforesaid, with force and arms, at B. aforesaid, in the coun- ty aforesaid, was feloniously and burglariously present, aiding, assisting, and consenting to the felony and burglary aforesaid, and aiding and assisting the said A. B. the felony and burglary aforesaid, in manner and form aforesaid, to do and commit ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.^ 1 This word ought to be used, when the property stolen is cash or money. 3 Chitt. C. L. 947. 2 On the first section of the Statute of Massachusetts, 1805, c. 101. 5 See " Accessory," for precedents against accessories in burglary before and after the fact. BURGLARY, &CC. 85 97. For entering a Dwelling-house, in the Mght Time, without breaking, with Intent ^c.^ _ The jurors fee, upon their oath present, that A. B., of in the county aforesaid, lahorer, on the day of now last past at B aforesaid, in the county aforesaid, the dwelling- house of one C. D. there situate, in the night ti.ne, to wit, aboSt the hour of two .n the night of the same day, did enter without breaking, with nitent the goods and chattels of hini the said ^. U.,\n the dwelling-house aforesaid then and there being fe- loniously to steal take, and carry away ; against the peace of said Commonwealth, and contrary to the form" of the statute in such case made and provided. 98. For breaking and entering a Ship or Vessel, in the Day Tune, with Intent ^-c.^ ^ The jurors he, upon their oath present, that A. B., of in the county aforesaid, laborer, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, a certain ship,^ belonging to, and the property of one C. D. called the then and there lying and being within the body of the said county of in the day time, did break and enter, wah intent the goods, chattels, and monies of the said ^. U., m the ship aforesaid then and there being, feloniously to stea , take, and carry away ; against the peace of^ said Common- wealth, and contrary to the form of the statute in such case made and provided.^ > On the fourth section of the Statute of Massachusetts, 1805, c. 101. • On the same section of the statute. The kuid of vessel, whether ship, sloop, &c., should be truly inserted. If any one, but not all the owners are known, the name of the one known may be stated ; the names of the others may be alleged to be unknown to the grand jury. * The two preceding precedents may be adopted in all the other cases men- tioned m the fourth section of the statute, by varying the allegation as to the description of the building, or vessel broken, according to the fact, and in the identical words of the statute. 86 CHALLENGING TO FIGHT. CHALLENGING TO FIGHT. 99. For sending a written Challenge} The jurors &,c., (ipon their oath present, that A. R., of B., in the county aforesaitl, gentlenrui, heing an evil disjiosed person, and intending to do great bodily harm and inischielto one C. D., and to j)rovoke and excite hini the said C. D. unlawlully to fight a duel with and against the said A. B., on at did iinlawTully, wickedly, and maliciously, write, send, and deliver, and did raiise to he written, sent, and delivered to the said C. D. a certain paper writing, in the form and manner of a letter from the said A. B. to the said C. D., containing therein as follows, \or to the purport and effect Jolloiving,'] that is to say> [Acre set forth the letter, with proper iniiendoes to explain it ;] meaning and intending, by the said paper writing, a challenge to the said C. D. to fight a duel with and against him the said A. B. ; against the peace and dignity of the Commonwealth aforesaid. 100. For sending a Challenge in a Letter.^ The jurors Sic, upon their oath present, that A. B., of in the county aforesaid, gentleman, being a person of a turbulent, wicked, and nialiclous disposition, and wickedly and maliciously designing and intending, not only to disquiet and terrify one C D., but also the said C. D. maliciously and violently to kill and murder ; and he the said A. B. his said malicious designs and intentions the sooner to complete and put in practice, on at in the county aforesaid, did unlawfully and wickedly provoke and excite the said C. D. to fight a duel against him the said A. B. with [Ae?'e name the instrument, 1 and that he the said A. B., a certain challenge, in the name of the said A. B.. in the form of a letter to the said C. D. directed, did then and there wickedly and maliciously write and cause to * This precedent is taken from 3 Chitt. C. L. 848, and is therein said to have been " settled in 1809 by an eminent crown lawyer now on the bench.'' Some of the prefatory averments, and the " great terror " of the parties challenged, in the conclusion, are omitted, as not necessary to the validity of the indictment. See note (w) to this precedent in Chitty, and the authorities there referred to explaining this offence. 2 Taken from 3 Chitt. C. L. 852. A similar precedent is there referred to in Cro. C. C. (154, 6th Ed.) ; in which the purport of the letter is not set forth, nor any intimation that it ought to be. In the above and other precedents in Chitty the letter or writing is, or is supposed to be, set forth. CHALLENGING TO FIGHT. 87 be written, which said letter was to the purport and effect fol- lowing/ that is to say, [here set forth the letter, icilh proper inu- cndoes to explain /<,] which said challenge, so as aforesaid writ- ten and directed, he the said A. B., afterwards, to wit, on the day of at aforesaid, in the county aforesaid, to the said C. D. wickedly and maliciously did send and de- liver, and cause to be sent and delivered to the said C. D. ; against the peace and dignity of the Couinionwealih aibresaid. 101. Another Precedent for challenging by Letter.^ The jurors Sec, upon their oath present, [^here set forth the introductory and prefatory matter, as in the next preceding pre- cedents, and then proceed.^ And the said A. B , in pursuance of, and for the conipleiing his said intent and liesign, did inilaw- lully, wickedly, and inalicimisly, by a leltor and writing, provoke, excite, and challenge the said C. D. unlawlnlly to figlit a duel with and against the said C. D. ; against the peace and dignity of said Commonwealth. 102. For a verbal Challenge.^ Tlie jurors &,c., upon their oath present, that A. B., of in the county aforesaid, gentleman, being an evil disposed per- son, and intending to do great bodily harm and mischief to one C. D., and to provoke and incite him the said C. D. unlawfully to fight a duel with him the said A. B., on at in pursuance of, and for the completing of his said intent and de- sign, did unlawtully, wickedly, and maliciously, by opprobrious words and threatening language, provoke, excite, and challenge the said C. D. unlawfully to fight a duel with and against him the said A. B. ; against the peace and dignity of said Common- wealth. 103. Another Precedent for a verbal Challenge.^ The jurors &;c., upon their oath present, that A. B., of B., in the county aforesaid, gentleman, being a person of a wicked and malicious mind and disposition, and wickedly, unlawfully, and ' 3 Chitt. C. L. 850. In these precedents the letter is not copied nor intended to be set forth, either in the " tenor " or the " purport and effect." But it is ad- visable that the challensje, whether verbal or in writing, should be set out in the indictment. See 6 Wentw. 385. » 3 Chitt. C. L. 850. ' 3 Chitt. a^g, 860. 88 CHALLENGING TO FIGHT. maliciously devising and intending to move, incite, instigate, and provoke one C. D. to fight a duel with him the said A. B., and therehy to kill and murder him the said C. D., on at did vvii-kedly, unlawfully, openly, and maliciously challenge, and endeavour to move, incite, instigate, and jjiovoke the said C. D. to fight a duel with him the said A. B., by then an there unlaw- fully, maliciously, and openly, and in the presence and hearing of him the said C. D., and without any just cause or provoca- tion whatever, speaking and uttering these hostile, threatening, and challenging words following, that is to say, [^here set forth the words spoken,^ by means whereof the said C. D. was put in great fe;ir and iipprehension of his life; against the peace and dignity of the Counnonwealth aforesaid. 104. For carrying a Challenge to the Prosecutor.^ The jurors &,c., upon their o;ith present, that A. B., of in the county of yeoman, being a person of dissolute char- acter and malicious disposition, and unlawfully and maliciously intending to procure great bodily harm and mischief to be done to C. D., of gentleman, and to incite and provoke the said C. D. unlawfully to fight a duel with and against one E. F., of the same place, Esquire, on at did unlawfully, wick- edly, and maliciously deliver and cause to be delivered a certain vvriilen challenge, of and from the said C. D. to the said E. F., unlawfully to fight a duel with and against the said C. D., which written challenge is as follows ; that is to say, [here set out the ivrit I en challenge ;] against the peace and dignity of the Com- monwealth aforesaid. 105. For provoking and inciting Prosecutor to fight. The jurors Stc, upon their oath present, t at A. B., of in the county aforesaid, gentleman, being a person of dissolute character and malicious disposition, and unlawfully and malicious- ly intending to incite and provoke one C. D. to fight a duel with and against one E. F., on at did unlawfully, wick- edly, and maliciously incite and provoke the i^aid C. D. unlaw- fully to fight a due: with the said E F. ; against the peace and dignity of the Commonwealth aforesaid. » 3 Chitt. C. L. 854. See Hawk, b, 1, c. 63, § 3, for the authority for this and the following precedents. See also 3 Chitt. C. L. 854—858, &c. for a prece- dent for writing and delivering a challenge and other precedents, the substance of which is similar to those here inserted. CHALLENGING TO FIGHT. 89 106. For engaging in a Duel, tchere no Homicide ensued} The jurors &ic., upon their oaih present, that A. B., of B., in tlie county of S., gentleman, being a person regardless of the life of man, and holding in contempt the authority and govern- ment of the supremo Giver and Disposer of human life, on with force and arms, at in the county aforesaid, did volun- tarily engage in a duel with one C D., with dangerous weapons, to wit, with pistols, then and there loaded with gunpowder and leaden bullets, to the great hazard of the lives of them the said A. B. and C. D. ; in whirh duel, engaged in as aforesaid by the said A. B. and C. D., no homicide did ensue thereon; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 107. For challenging, by written Message, to fight a Duel, The jurors &:c., upon their oath present, that A. B., of B., in the county aforesaid, gentleman, being a person of a malicious and revengeful disposition, and intending and designing one C. D. wilfully and maliciously, and of his malice aforethought, to kill and murder, on the day of now last past, at B. aforesaid, in the county aforesaid, did unlawfully and ma- liciously, by written message, provoke, excite, and challenge him the said C. D. to fight a duel with him the said A. B., with dangerous weapons, to wit, with pistols; and that he the said A. B. a certain challenge, in the name of him the said A. B., and in the form of a written message to hiio the said C. D. di- rected, exciting and provoking him the said C. D. to fight a duel with the said A. B., did then and there wilfully and maliciously write and direct, and cause to be written and directed, which said challenge and written message is as follows," to wit, \liere insert a copy of the message icith p'oper inuendocs, if required f\ and that he the said A. B. the said written message did then and there wilfully and maliciously send and deliver, and cause and procure to be sent and delivered to the said C. D., no duel be- ing or having been fought thereon ; against the peace of said ' This and the four following precedents are original by the author, and are drawn upon the sixth and seventh sections of the Statute of Massachusetts of 1804, c. 123, § 6, and are such as have been used and sanctioned in and by the Supreme Judicial Court of that state. ■^ If the message or a copy of it cannot be procured, then say, " which said challenge and written message was then and there concealfed and destroyed by the said A. B. or some other person, to the jurors aforesaid unknown, so that jhey cannot set foith the tenor or the substance thereof." 12 90 CHALLENGING TO FIGHT. Commonwcnitli, and contrary to the form of ilic statute in such case made and provided. J 08. For being a Second in a Duel. The jurors he, upon their oath present, that A. B., of B., in the county aforesaid, gentleman, on vviih force and arms, at B. aforesaid, in the county aforesaid, did voluntarily en- gage in a duel with one C. D., with dangerous weapons, to wit, with pistols, then and there loaded wiiii gunpowder and leaden bullets, to the great hazard of the lives of the said A. B. and C. D., in which duel, engaged in as aforesaid, no homicide did ensue thereon ; and the jurors aforesaid, upon their oath afore- said, do further present, that E. F., of B., in the county afore- said, gentleman, being a person regardless of the life of inan, and holding in contempt the authority and government of the su- preme Giver and Dis])oser of hmnan life, on the said day of in the year aforesaid, wiili force and arms, at B. afore- said, in the county aforesaid, did knowingly and voluntarily be- come, and then and there knowingly and voluntarily was, the second of the said C. D., and was then and there knowingly and volimtarlly an agent and abetter of him the said C D. in the duel and challenge aforesaid ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 109. For being a Second to a Person giving a Challenge, when no Duel is fought. \^Draw the indictment for sending the challenge according to the precedent, Ao. 103, and then go on.] And the jurors afore- said, upon their oath aforesaid, do further present, tliat E. F., of B., in the county aforesaid, gentleman, on the said day of in the year aforesaid, at B., in the county aforesaid, did become, and then and there voluntarily and knowingly was a second, agent, and abetter of him the said A. B., in the giving, sending, and delivering of the challenge and message aforesaid, from him the said A. B. to the said C. D. ; against the peace he., and contrary to the form of the statute Sic. 110. For accepting a Challenge when no Duel ensued. The jurors &tc., upon their oath present, that A. B., of in the county aforesaid, gentleman, on at in the county aforesaid, did accept a challenge to fight a duel with one C. D., and did ilien and there consent to fight therein with the CHEATS. 91 said C. D., with dangerous weapons, to wit, with pistols, loaded with gunpowder and leaden hullets, to the hazard of the lives of them the said A. 13. and C. D., which challenge the said C. D. had, before that time, sent, given, and delivered, and caused and procured to he sent, given, and delivered to the said A. B. to light said duel, hy message for that purpose, upon which chal- lenge no duel did ensue ; against the peace he, and contrary to the form of liie statute, he. 111. For Icing a Second to a Person accepting a Challenge, ivhen no Duel i^ fought. [^Draiv the indictment for accepting the challenge, according to the next preceding precedent, jVo. 1 lU, and then proceed.^ And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F.. of IJ., in the county aforesaid, gentleman, on the said day of in the year aforesaid, at M. aforesaid, in die county aforesaid, did become and was a second, agent, and abetter of him the said C. D., in such acceptance of the challenge aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. Champerty. — See " Maintenance." CHEATS. 1 12. Indictment at Common Law for selling by false Scales.* The jurors &tc., upon their oath present, that A. B., of in the county aforesaid, trader, on the day of and from thence until the day of the taking of this inquisition, at B., in the county aforesaid, did use and exercise the trade and busi- ness of a shopkeeper, and during that time did deal in the buy- ing and selling by weight of divers goods, wares, and merchan- dises. And the said A. B., contriving and fraudulently intending the citizens of the said Commonwealth to cheat and defraud during the time he exercised the said trade and business, to wit, on at did knowingly, wilfully, and publicly keep, in • Stark. 467, 408; 3 Chitt. 1000 ; Trem. P. C. 103, 106 ; Cro. C. C. 282 (7th . ed.) ; Id. 283, selling brass chain for gold. 92 CHEATS. a certain shop ilicrc, wlicrcin he carried on his snid trade and business, a certain pair of false scales for the weighing of goods, wares, and merchandises, hy him sold in the way of his trade ; which said scales were then and there, by artfnl and deceillul means, so made and constrncted as to cause the goods, wares, and merchandises, weighed therein and sold thereby, to appear of greater weight than the real and true weight, by one eighth part of such apparent weight ; and that the said A. 13., well knowing the said scales to be false, and so constructed and made, on at did knowingly and fraudulently sell to one C. D. certain goods in the way of his trade, to wit, a large quantity of flour, weighed in and by the said false scales, as and lor one hundred pounds of flour, whereas, in truth and in fact, the weight of said flour, so weighed and sold as aforesaid, was short and deficient of the said weight of one hundred pounds by one eiglilh part of the weight of one hundred pounds ; against the peace and dignity of the Commonwealth aforesaid. 1 13. Fo7- defrauding a Person by means of a counterfeit Letter and other false Tokens: On the Statute of '32 II. 8. c. 1.^ The jurors he, upon their oath present, that A. B., of in the county aforesaid, yeoman, devising how he might unlaw- fully and fraudulently obtain the monies of the honest citizens of said CommonweaUh, on at did falsely and deceit- fully pretend and affirm to one C. D., that his the said A. B.'s name was E. F., and that he was the son of one G. H., and that the said A. B. a certain false and counterfeit letter, in the name of him the said G. H., as a true and genuine letter of him the said G. H., falsely, deceilfidly, and fraudulently, to him the said C. D. then and there did deliver, the said G. H. being then and long before the friend and intimate acquaintance of him the said C. D. ; by which said false and counterfeit letter it was stated and nienlioned, [Afre insert the letter, or the material part of it, with proper inuendoes, if the letter requires it ;] and that the said C. D., then and there believing the said false and counter- feit letter to be the proper hand-writing of him the said G. H., did then and there [Acre iyisert what ivas obtained and done by means of the countejfeit letter ;] whereas, in truth and in fact, the said G. H. never did write or send, or cause to be written or sent, any such letter to him the said C. D., desiring him [here 1 See similar precedents in Stark. 469 ; Cro. C. C. 278 (6th ed.) ; 3 Chitt. 1004. The prefatory averments in these precedents, " evil disposed person, &c." are omitted as superfluous. CHEATS. 93 repeat the substance of the letter {] by means whereof, and of all which, the said A. B., by means of the said counieiTeit letter, and by the said false tokens and pretences, milawfully, falsely, fraudulently, and deceitfully, did obtain and get into his hands and possession, of and from the said C. D., the said [jicre de- scribe the property obtained,^ in n)anner and form aforesaid ; and the said C. D, of the said [^the property obtained,^ in man- ner and form aforesaid, then and there fraudulently and deceit- fully did deceive, cheat, and defraud ; against the peace and dignity of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.^ 114. For obtaining Goods of a Shopkeeper, "under Pretence of being Servant to a Customer.^ , T'l'c ju/Oi's &Q., uj)on their, cath ^)u;sci\t, that A. B., of B., in the county alcresaid, laborci, contrising and intending one CD., ofB. aforesaid,- sho;^3keeper^ 'j:i!a.wf;illy, fraudulently, and de- ceitliiJiy, oy fa,ls(. prji'.ei'CS^,, i.0 cl,et;t,aud delraud of his goods, wares, and mercliandises, on at aforesaid, unlawful- ly, knowingly, .and dfs'fgocdly, did falsely pretend to the said C. D., that he- tiij& said/A; B. then was the servant of one E. F., of tailor, (the said E. F. then, and long before, being well known to him the said C. D., and a customer of him the said C. D., in his said business and way of trade ;) and that he the said A. B. was sent by the said E. F. to the said C. D. for five yards of superfine woollen cloth ; by which said false pretences the said A. B. did then and there unlawfully, knowingly, and de- signedly obtain from the said C. D. five yards of superfine wool- len cloth, of the value of fifty dollars, of the goods, wares, and merchandises of him the said C. D., with intent him the said C. D. then and there to cheat and defraud of the same ; where- as, in truth and in fact, the said A. B. was not then the servant of the said E. F., and was not then, or ever had been, sent by the said E. F. to the said C. D. for the said cloth, or for any cloth whatever ; to the great damage and deception of the said * See the case of Commonwealth vs. Warren, G Mass. R. 72, where it is decided that the statute of 33 11. 8, c. 1, has been adopted in Massachusetts " as a part of the common law." There seems to be no doubt, that a forged letter, similar to that set forth in this precedent, might be considered ami treated as a forged order " for the payment of money or the deliveiy of goods," and proceeded upon as a forgery. * See similar precedents in 3 Chitt. 1005; Stark. 474,; Cro. C. C. 305, (6th ed.) 94 CHEATS. C. D., ngainst the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.^ 115. For ohtaining Goods under pj'ctence of being jyierchants of Property and Credit.'^ The jurors Sec, upon their oatli present, that A. B. and C. D., both of in the county aforesaid, laborers, contriving and intending unlawfully, fraudulently, designedly, deceitfully, and by false pretences, to cheat and defraud one E. F. of his goods and merchandises, on at in the county aforesaid, did falsely, knowingly, and designedly pretend to the said E. F. that the said C. D. then was a merchant of great property, who wanted to purchase horses in order to export and send them abroad, and that he then was a boi)sel^ee[)er _at P., in thecounty of whereas in truth and i,n lviGt,;tne'sviid C D. was no.t Jl(en„a rnt^i- chant of great property who'wanied io purchase herscs fn'order to send them abroad; no-- wcs he then a housekeeper atP afore- said, as the said A. B. {iMd,p. D. ihan-ano Uie.rQ tajseivf .pre- tended to the said E. F. ; and the jurors aforesaid, upon their oath aforesaid, do further present, that tlie siid A . B. and C. D., by the false pretences aforesaid, did'then^ &nd- d'ere unlawfully, knowingly, and designedly obtain from the said E. F. one mare of the value of fifty dollars, and six geldings of the value of three hundred dollars, with intent then and there to cheat and de- fraud the said E. F. of the same ; against the peace of said Commonwealth, and coiitrary to the form of the statute in such case made and provided. ' This precedent concludes contra formam statuti. The statute of 30 Geo. 2, c. 24, has never been adopted in Massachusetts ; but the statute of that state of 1815, c. 136, " For the Suppression and Punishment of Cheats," is substan- tially in the same language as the above mentioned statute of 30 Geo. 2. ^ 3 Chitt. 1006, in which precedent there is a second count, omitting the words that defendant " wanted horses to send them abroad," and a third count omitting the false pretence of residence. The facts set forth in this precedent would amount to a fraudulent conspiracy at common law. See similar precedents in Cro. C. C. 303, (6th Ed.) ; Stark. 473, in which the false pretences are negatived in the conclusion of the indictment, as is most usual. CHEATS. 95 116. Fo7' obtaining Money by draiving upon a Person whom the Defendant pretended ivas indebted to him and was a Per- son of Property.^ The jurors he, upon their oath present, that A. B., of yeoman, contriving and intending unlawfully, fraudulently, know- ingly, and designedly, and by false pretences, to cheat and defraud one C. D. of his money, on at in the county aforesaid, unlawfully, fraudulently, knowingly, and de- signedly, did falsely pretend to the said C. D., that one E. F. was a person of property and credit, residing at in the county of and that divers large sums of money were due and owing to him the said A. B. from the said E. F., and that the said E. F. would accept and pay a certain bill of exchange according to the tenor thereof, then and there drawn by the said A. B. upon the said E. F., and dated the day and year last aforesaid, and whereby the said A. B. required the said E. F. to pay to him the said C. D. or order, the sum of one hundred dollars, in six days after date thereof, and to place the same to account of him the said A. B., and then and there delivered the same to the said C. D. ; which said bill of exchange is of the purport and effect following, to wit, [here set forth the bill ;'\ by which said false pretence, the said A. B. did afterwards, to wit, on the same day and year aforesaid, at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly, obtain from the said C. D. the said sum of one hundred dollars, of the monies of him the said C. D., with intent then and there to cheat and defraud him of the same ; whereas in truth and in iact the said E. F. was not then a person of property residing at said and whereas in truth and in foct there were not then divers large sums of money due from said E. F. to said A. B., and the said E. F. would not and could not pay the said bill of exchange, or any part of the money therein men- tioned, but was then wholly insolvent and unable to pay the same, all which the said A. B. then and there well knew ; against the dignity of the Commonwealth, and contrary the form of the statute in such case m^de and provided. ' Stark. 471 ; the words " to support his profligate way of life," are omitted as unnecessary. Id. note (/.) 96 CHEATS. 117. For obtaining a Note under pretence of inspecting it, and then cancelling and destroying it.^ The jurors 8cc., upon their oath present, that A. B , of in the county of laborer, contriving and intending fraudu- lently, knowingly, and designedly, and by false pretences, one C. D. to cheat and defraud of a certain promissory note of hand for the payment of money, and of the money lawfully due thereon, and to obtain and get into his hands and possession from the said C. D. the said promissory note, with the intent and purpose knowingly and designedly to cancel, obliterate, and de- stroy the same, on at did falsdy, knowingly, and designedly prctentl to the said C. D., that if he the said C. D. would permit him the s:iid A. 15. to examine and inspect a cer- tain promissory note for the payment of money, signed with the proper hand-writing of him the said A. B., bearing date the day of then before, by which note the said A. B. promised to pay the said C D., or his order, the sum of dollars, in one month after the date of the same, for value re- ceived of him, [ilescribe the note truly, according to the fact, or insert a copy of it in the indictment, if a copy had been 7-etained,^ that he the said A. B. would then and there examine and inspect said note, and then and there immediately redeliver the same note to the said C. D. ; and that he the said A. B. afterwards, to wit, on the said day of in the year aforesaid, at B. aforesaid, by means of the false pretences aforesaid, did ac- quire and obtain the said note from the said C. D., and did then and there in the county aforesaid, fraudulently, knowingly, and designedly cancel, tear, obliterate, and destroy the same, (the said sum of dollars, in the said note expressed, being Uien and there due and unpaid, and the said C. D. being then and there the owner and propi'ietor thereof,) with intent, him the said C. D. then and there knowingly, designedly, and fraudulent- ly, to cheat and defraud of the monies due on the same ; where- as, in truth and in fact, the said A. B. did not intend to redeliver ' Cro. C. C. 288 (6th Ed.) I find no precedent similar to this either in Tre- maine, Chitty, or Starkle. I have changed the manner of alleging the facts, as they are stated in the precedent in Cro. C. C. It is there drawn at common law. The object being to bring the offence within the statutes for the sup- pression of cheats ; but this indictment would be also good at common law. There probably is no doubt, that if it were the intention of the defendant to destroy the note at the time he obtained it, by the false pretences, it would amount to larceny. COMPOUNDING A FELONY. 97 the said note to the said C. D. after he had examined and in- spected the same ; but then and there obtained the possession of the same note in manner and form aforesaid, with intent fraudu- lently, knowingly, and designedly to cancel, tear, obliterate, and destroy the same ; against the peace of said Commonw'caith, and contrary to the form of the statute in such case made and provided.^ Coin. — See " Forgerv and Counterfeiting." COMPOUNDING A FELONY. 1 18. For compouncUiig a Felony.^ The jurors &ic., upon their oath present, that A. B., of B., in the county aforesaid, yeoman, on tiie day of now last past, at aforesaid, in the county aforesaid, catne before C. D., Esquire, then and yet being one of the justices of the peace in and for the said county of duly and legally authorized and qualified to execute and perform the duties of that ofiice ; and then and there, upon his oath, did charge, ac- cuse, and complain against one E. F. for feloniously stealing [here set forth the complaint to the justice ; ] upon which accu- sation and complaint, the said C. D., Esquire, issued his warrant under his hand and seal, in due form of law, for the apprehend- ing and taking the said E. F. to answer to, and be examined and dealt with touching and concerning the felony aforesaid, so as aforesaid charged upon him the said E. F., as to law and justice might appertain. And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the day of in the year aforesaid, at B. aforesaid, in the county aforesaid, the said E. F. was duly arrested and taken by virtue • There are a great variety of other precedents in the English books of pre- cedents of indictments, for cheats, frauds, &.c. Those in Trem. P. C. were all drawn before the statute of 30 Geo. 2, c. 24, was enacted, and do not conform to the terras of that statute. 2 See other precedents, 2 Chitt. 220; Cro. C. C. 223 (Gth Ed.); 4 Wentw. 327 ; Stark. 679. The form in the last edition of Cro. d. C. is more concise than that in prior editions, and the other precedents above referred to, 2 Chitt. 220, note {k.) 13 98 COMPOUNDING A FELONY. of the said warrant, for the felony aforesaid ; and was then and there carried before the said C. D., Esquire, the justice afore- said, and was then and there examined by him the said justice of and concerning the felony aforesaid ; and the subject-matter of said complaint was examined into and heard by the said jus- tice. Upon which said examination and hearing, the said C. D., Esquire, did then and there make a certain warrant, under his hand and seal, in due form of law, directed to the keeper of the Commonwealth's gaol in said B., or his under keeper or deputy ; thereby commanding the aforesaid keeper or his deputy to re- ceive into his custody the body of the said E. F., so charged with such felony as aforesaid, and him in custody safely to keep, until he should be discharged by due course of law. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., well knowing die premises, but contriving and intending unlawfully and unjustly to pervert the due course of law in this behalf, and to cause and procure the said E. F. for the felony aforesaid to escape with impunity, afterwards, to wit, on at &lc., unlawfully and for the sake of private gain, did take upon himself to compound the said felony on be- half of the said E. F., and then and there did exact, receive, and have of the said E. F. the sum of dollars, for and as a reward for compounding the said felony, and for desisting from all further prosecution against the said E. F. for the same ; against the peace and dignity of the Commonwealth aforesaid. 119. For compounding an Offence against a penal Statute} The jurors Stc, upon their oath present, that A. B., of in the county aforesaid, yeoman, heretofore, to wit, on the day of prosecuted out of the court of Common Pleas, &z;c., {here state the style of the court, and for ivhat countij it loas to he holden,'] a certain writ against one C. D., directed to the sheriff of [here recite the ivrit.^ And the jurors aforesaid, upon their oath aforesaid, do further present, that the said writ, so sued out as aforesaid by the said A. B., was by him sued out with intent to declare against the said C. D. in the same court, in a plea of debt for a certain penalty supposed to have been incurred by the said C. D., by reason of his the said C. D's having before that time, \_here insert the facts upon which the penalty is supposed to have accrued, ichich may be taken from the declaration in the writ before recited ; ] against the form of the statute in such case made and provided. And the jurors afore- » See similar precedents in 2 Chitt. 227 ; 4 Wentw. 399. C0N6PIRACT. 99 said upon their oath aforesaid, do further present, that the said A. li., not regarding the statute in that case made and provided r^r .1^^ , /foresaid, in the county aforesaid, unlawfully,' and for the sake of pnvate gain, did take upon himself to coni- pound and agree w.th the said C. D. for the snid offence, without he order or consent ol snid court, out of wliich the said writ was issued as aforesa.d ; and then and there unlawfully did exact, receive, and have of and from the said C. D. the sum of dollars, as and for a reward for compounding with the said C. U., for the said offence, and desisting from further pros- ecutmg his said suit; against the peace and dignity of the Com- monwealth aforesaid.^ CONSPIRACY. 120. For a Conspiracy to charge a Man with a Rape, with Intent to obtain Money from him.^ .u^\^ j"'-«rs for said Commonwealth, upon their oath present, tnat A. J3., ol in the county of yeoman, and C. D., the vvne of the said A. B., and E. F., of said yeoman devismg and intending, unjustly and maliciously, to deprive one' I r'°Tj ^, "''"'^ ^""^ character, and to subject him the said Lr H, without any just cause, to the punishment by law inflicted for the crime of rape, on at in the county aforesaid, falsely, unlawfully, wickedly, and maliciously, did combine, conspire, confederate, and agree toaeiher, falsely to charge and accuse, and then and there in pursuance of said conspiracy, combination, and agreement, did falsely charge and ' This offence is created by statute 16 Eliz. ; but it is presumed to be also an ollence at common law. ' There are precedents for this offence in 3 Chitt. 1183; Stark. 690; and Cro. C. C. 240, (Gth Ed.), which are merely copies of each other. Those parts of them which consist of averments of overt acts, matters of inducement &c., seem to render them unnecessarily prolix ; and are, therefore, not re- tamed m the following precedents. The authorities for rejecting this superflu- ous matter were collected, stated, and relied upon in the case of The Com- monwealth v. Judd et al, 2 Mass. R. 329, and are as follows ; 9 Rep. 56, 3d , . w' r« iff'' ''^''^-''^-^ 3 Burr. 1330 ; 1 Lev. 125 ;lKeb. 203 ;l Vent. -^- 304 ; 1 Str. 193 ; 1 Salk. 174 ; 8 Mod. 11 ; 1 Leach C. CUt 100 CONSPIRACY. accuse hlin the said G. H., that he had then lately before felo- niously ravished and carnally known the said C. D. by force and against her will ; with intent unjustly to obtain and acquire of and from him the said G. 11., to tliem the said A. B., C. D., and E. F. divers sums of money for compounding the said pre- tended felony and rape, so as aforesaid falsely, wickedly, and maliciously charged upon him ; against the peace and dignity of the Commonwealth aforesaid. 121. For a Conspiracy to charge, a Man ivith receiving stolen Goods, knowing them to be stolen, and obtaining Money for compounding the same} The jurors &c., upon their oath present, that A. B. and C. D., both of in the county of laborers, wickedly and maliciously devising and intending one E. F. unjustly to deprive of his good name and character, and also Iraudulently to oblain and acquire to themselves, of and from the said E. F., divers sums oi" money, on the day of at ^ in the county aforesaid, did wickedly, fraudulently, and maliciously conspire, combine, confederate, and agree among themselves, falsely to charge and accuse, and in pursuance of said conspira- cy, combination, confederacy, and agreement, did then and there falsely charge and accuse the said E. F., that he had then lately before received certain stolen goods, which had then lately before been feloniously stolen, taken, and carried away, knowing them to be stolen ; and that they the said A. B. and C. D., by divers threats and menaces of them the said A. B. and C. D. made and uttered in pursuance of the said conspiracy, combination, confederacy, and agreement aforesaid, so as aforesaid had between them the said A. B. and C. D., that the said E. F. should be prosecuted and punished as a receiver of stolen goods, knowing them to be stolen, afterwards, to wit, on the said day of in the year aforesaid, at B. aforesaid, in the county aforesaid, did demand, receive, and take the sum of fifty dollars of him the said E. F., for and as a composition of, and agreement not to prosecute the said pretended offence, and to discharge him the said E. F. from all further prosecution for the same ; against the peace and dignity of the Commonwealth aforesaid. J See similar precedents in 8 Chitt. 1181 ; Stark. 692; Cro. C. C. 243, (6th Ed.) These precedents are also transcripts of each other; the superfluous matter in which, is not retained in this precedent for the reasons and upon the authorities stated and referred to in note (2) to the preceding precedent. CONSPIRACY. 101 122. For a Conspiracy among Workmen to raise their Wages arid lessen the Time of Labor} The jurors &:c., upon their oath present, that A. B., C. D., and E. F , all of in the county of laborers, on the day of now last past, at B. aforesaid, in the county aforesaid, being all workmen and journeymen in the art and manual occupation of a wheelwright, not being content to work and labor in that art and occupation by the usual number of hours in each day, and at the usual rates and prices, for which they and other journeymen and workmen, in the said art and occupation, were accustomed to work and labor, but falsely and fraudulendy conspiring and combining unjustly and oppressively to increase and augment the wages of themselves and other jour- neymen and workmen in the said art, and unjustly to exact and extort great sums of money for their labor and hire in their said art, mystery, and manual occupation, from their employers who employ them therein, on the same day and year aforesaid, at B. aforesaid, in the county aforesaid, together with divers other workmen and journeymen in the same art and manual occu- pation, (whose names are to the jurors aforesaid unknown,) un- lawfully did assemble and meet together, and so being assem- bled and met, did then and there unlawfully and corruptly conspire, combine, confederate, and agree together and among themselves, that none of Uie said conspirators, after the same day of would work at any lower or less rate than one dollar for the hewing of every hundred sj)okes for wheels, and two dollars for making every pair of hinder wheels, for or on account of any person or employer whatsoever in the said art and occupation ; and also that none of the said conspirators would work day work or labor any longer, than from the hour of sis in the morning till the hour of seven in the evening in each day from thenceforth ; against the peace and dignity of the Commonwealth aforesaid. 123. For a Conspiracy to charge a JS'lan with being the Father of a Bastard Child.^ The jurors &;c., upon their oath present, that A. B., C. D., and E. F., all of in the county of laborers, on the » See similar precedents in Stark. 694; 3 Chitt. 1163; Cro. C. C. 249, (6th Ed.) These are precedents at common law ; but it is sai^ they would be good upon the statute of 2 & 3 Edw. 6, if concluded contra formam statufi. ' See a long precedent for a conspiracy of this description in Stark. 698, and the authorities referred to in note (a.) 102 CONSPIRACY. day of at B. aforesaid, in the county aforesaid, did unlawfully conspire, combine, confederate, and agree among themselves, falsely and mnliciously, and without any just cause, and for the sake of unlawful and unjust gain, to charge one G. H. with the crime of adultery ; and also to obtain and extort from the said G. H. divers large sums of money by unlawful ways and means ; and that they the said A. B., C. D., and E. F., in pursuance of, and according to the conspiracy, combination, confederacy, and agreement aforesaid, so as aforesaid had among themselves, afterwards, to wit, on the same day of in the year aforesaid, at B. aforesaid, in the county aforesaid, unlawfully, falsely, and maliciously, and for the sake of unlawful and unjust gain, did charge and accuse the said G. H., that he the said G. H. then lately before, had carnal knowledge of the body of one 1. J., and was the reputed father of a certain ille- gitimate child, born of the body of her the said I. J., he the said G. H. being then and there a married man, and having a lawful wife alive ; against the peace and dignity of the Commonwealth aforesaid. 124. For a Conspiracy to cheat a Man of his Goods, under Pre- tence of buying them} The jurors «fec., upon their oath present, that A. B., C. D., and E. F., all of B., in the county of laborers, on at did falsely conspire, confederate, and agree among themselves, unlawfully and fraudulently to acquire and get into ti^'eir hands and possession the goods, wares, and merchandises of one G. H., under color and pretence of buying the same of and from the said G. H., and that, in pursuance of, and accord- ing to the conspiracy, combination, confederacy, and agreement aforesaid, they the said A. B., C. D., and E. F., then and there falsely, unlawfully, and deceitfully did obtain and acquire of the said G. H. twenty yards of broadcloth, of the value of one hun- dred dollars, under pretence of buying the same, and did then and there, in pursuance of the conspiracy &c. aforesaid, cheat and defraud him thereof; against the peace &c. ' See the substance of this precedent in Tiem. P. C. 91, The Eing vs. Wil- cox, in which case it was prosecuted as a cheat. CONSPIRACY. 103 125. For a Conspiracy to make an iinhntfid and oppressive Tax} The jurors &c., upon their oath present, that A. B., C. D., and E. F., all of in the county of B., yeomen, they the said A. B., C. D., and E. F. having lately before been legally chosen assessors of the said town of B., for the year aforesaid, and having each of them accepted the said office, and having each of them severally qualified themselves according to law, to dischari£;e and perform the duties of said office, on at did unlawfully, falsely, and corruptly conspire, combine, con- federate, and agree among themselves, by virtue and color of their said offices, to make an unlawful, unequal, and oppressive tax and assesstnent upon the inhabitants of the said town of B., and upon their polls and estates; and that they the said A. B., C. D., and E. F., in pursuance of, and according to the con- spiracy, combination, confederacy, and agreement aforesaid, so as aforesaid had by and between them, did then and there false- ly, unlawfully, and corrui)tly, by virtue and color of their said offices, proceed to make and publish a certain unlawful, unequal, and oppressive tax and assessment upon the polls and estates of the inhabitants of said town of B., called the ministerial tax, and signed the same with their hands in their capacity of assessors, as aforesaid, of the said town of B., with the intent certain of the inhabitants of the said town, whose names are to the jurors aforesaid as yet unknown, to injure, defraud, and oppress ; against the peace and dignity of the Commonwealth aforesaid. 126. For a Conspiracy to defraud an illiterate Person, hy falsely reading to him a Deed of Bargain and Sale, as and for a Bond of Indemnity. ~ The jurors &,c., upon their oath present, that A. B., C. D., and E. F., all of in the county aforesaid, yeomen, un- lawfully devising and intending one G. H. to injure, deceive, and defraud, and him the said G. H. fraudulently to deprive of his property and estate, on at did unlawfully conspire, * An indictment, from which this precedent is copied, was drawn and pre- sented to the grand jury in one of the counties of Massachusetts, but " not found." The original is in the possession of the person by whom it was drawn. " This precedent contains the substance of an indictment tried in the Su- preme Court of Massachusetts for the county of Kennebeck. The original in- dictment stated the manner in which this fraud was carried into effect ; but it is not retained in this precedent, it being unnecessary. 104 CONSriRACY. combine, confederate, and agree among themselves, falsely and fraudulently to obtain from the said G. H. a deed of bargain and sale of a certain lot of land in said town of B., called lot No. 20, in said town of B., and that, in pursuance of, and accord- ing to the conspiracy, combination, confederacy, and agreement aforesaid, so as aforesaid had, they the said A. B., C. D., and E. F., did falsely and fraudulently prepare, make out, and fabri- cate a deed of bargain and sale of the said lot of land, to be signed and executed by him the said G. H., and did then and there falsely and fraudulently present the same to him the said G. H., and did then and there, falsely and fraudulendy, and in pursuance of the conspiracy, combination, confederacy, and agreement aforesaid, read the same to him the said G. H. as a bond and obligation for the sum of seventy dollars, to be given by him the said G. H. to one I. J. as a consideration, that he the said G. H. should indemnify the said I. J. against the pay- ment of certain notes of hand which he the said G. H. had, be- fore the day aforesaid, made and given to one K. L. ; he the said G. H. being then and there an illiterate person, and by reason thereof, wholly unable to read the deed, so as aforesaid falsely and fraudulently made out and presented to him ; against the peace and dignity of the Commonwealth aforesaid. 127. For a Conspiracy to obtain Goods upon Credit, and then to abscond, and defraud the Vendor thereof} The jurors &c., upon their oath present, that A. B., C. D., and E. F., all of in the county aforesaid, traders, wick- edly and unjustly devising and intending one G. H. to defraud and cheat of his goods, property, and merchandises, on at did falsely and fraudulently conspire, combine, confede- rate, and agree among themselves, to obtain and get into their hands and possession, of and from the said G. H., his goods, property, and merchandises, upon trust and credit, and then to abscond out of the said Commonwealth, and defraud him there- of; and that the said A. B., C. D., and E. F., in pursuance of, and according to the conspiracy, combination, confederacy, and agreement aforesaid, so as aforesaid had, did then and there falsely and fraudulently obtain and get into their hands and pos- session, of and from the said G. H., goods, wares, and merchan- ' See the report of this case, Commonwealth vs. Ward et al., 1 Mass. R. 473, in which the original indictment is stated. The superfluous matter in the indictment, viz. the averment of the several overt acts, is not retained in this precedent, being unnecessary. See precedent, No. 120, note (2.) ante. CONSPIRACY. 105 dises, of the value of five hundred dollars, upon trust and credit ; and in further pursuance of the conspiracy, combination, and confederacy aforesaid, so as aforesaid had among themselves, dicy the said A. B., C. D., and E. F., before the time of pay- ment for the said goods, property, and merchandises had ar- rived, did abscond and go out of the said Commonwealth, and did then and there, in manner aforesaid, cheat and defraud the said G. H. of his goods, property, and merchandise aforesaid ; against die peace and dignity of the Commonwealth aforesaid. 128. For a Conspiracy to manvfocivre spurioiis Indigo, with Intent to sell the same as genuine Indigo of the best Quality} The jurors &ic., upon their oaUi present, that A. B., C. D., and E. F., all of B., in the county of S., laborers, devising and fraudulently intending to acquire and get into their hands and possession the monies, goods, and property of the citizens of this Commonwealth, by fraudulent and dishonest means, on at did falsely, fraudulently, and unlawfully conspire, com- bine, confederate, and agree among themselves, to mix, com- pound, and manufacture certain articles and materials hereafter mentioned, into the form and color and to the resemblance of good and genuine indigo of the best f|unlity, and of foreign growth and manufacture, with the fraudulent intent and design, that the base material, to be mixed, compounded, and manufactured as aforesaid, should be exposed to sale, and that the same should in fact be sold to the citizens of this Commonwealth and others as and for good and genuine indigo of the best quality and of foreign growth and manufacture. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., C. D., and E. F., in pursuance of, and according to the con- spiracy, combination, confederacy, and agreement aforesaid, so as aforesaid had among themselves, on the day and year last ' Sec a full report of this case. Commonwealth vs. Judd et al. 2 Mass. R. 329, io which the law relative to the form and substance of an indictment for a con- spiracy is most clearly and satisfactorily settled. See precedent, No. 120, note (2.), ante. The latter part of the indictment in this case, alleging the actual sale of the spurious indigo, is left out of this precedent, which is conformable to the decision of the court. The Cmfef Justice and defendants' counsel speak of the different counts in the indictment. There was but one count in the indict- ment, and when the second and third counts are referred to, it can apply only to the different allegations in the body of the indictment, introduced as usual, by the words, " And the jurors aforesaid, upon their oaths aforesaid, do further present." 14 106 CONSPIRACY. aforesaid, at B. aforesaid, in the county aforesaid, did fraudu- lently mix and compound, with a certain quantity of genuine in- digo of foreign growtli and manufacun-e, certain other articles and materials, to wit, starch, hlue vitriol, nutgalls, alum, and a decoction of logwood, in such quantities and proportions, as thereby to increase the quantity of the aforesaid genuine indigo, when mixed and compounded as aforesaid, to three times the quantity and number of pounds' wciglit thereof, and having so mixed and compounded the same, did then and there so manu- facture and work up the same and the base materials and com- position aforesaid, as to give the same the false appearance and resemblance of good and genuine indigo of the best quality and of foreign growth and manufacture, and with the fraudulent in- tent and purpose, that the purchaser or purchasers thereof should be cheated and defrauded ; against the peace and dignity of the Commonwealth aforesaid. 129. For a Conspiracy hij Persons confined in Prison, to effect their own Escape, and that of others} The jurors &;c., upon their oath present, that A. B., C. D., and E. F., all of said B., laborers, on at were per- sons lawfully confined in the Commonwealth's prison, situated in B., in the county aforesaid, and tlieu and there lawfully detained in the custody of the keeper of said prison, by divers legal pro- cesses then and there in force against them the said A. B., C. D., and E. F., [state the cause of the detention of each of the defendants,'] and that said A. B., C. D., and E. F., unlawfully contriving and intending to effect the escape of themselves and divers other persons, to the said jurors iniknown, who were then and there prisoners lawfully confined in the said prison, and in the custody of the keeper thereof, from out of said prison, did then and there conspire, combine, confederate, and agree to- gether, unlawfully to effect the escape of themselves the said A. B., C. D., and E. F., and the said other prisoners, then so lawfully confined in said prison, from and out of the same ; against the peace and dignity of the Commonwealth aforesaid. [The same form may he used when the design of the conspirators is to effect their oivn escape only, and not that of others, by omit- — • — — — — — — 1 '' 2 C'lit'- C. L. 1149, where it is said that this precedent is from 4 "Wentw. 117. " It neither states an overt act, nor that any thhig was done in pursuance of the conspiracy; which has been holden sufficient." 1 Salk. 174, 2 Lord Raym. 11G7. See precedent, 120, note (2), ante; Commonwealth vs. Judd et al. 2 Mass. R. 329. CONSPIRACY. 107 t{n 3 Chitt. C. L. 1150. This precedent is said to be abridged from Cro. 0. C 422. * 3 Chitt. C. L. 1151. The same form may be adopted, omitting to statQ, that the defendants were prisoners. 108 CONSPIRACY. custody of the keeper of said prisoners, by virtue of divers legal processes then in legal force against them ; and that the said A. B., C. D., and E. F., contriving and intending to break down, blow uj), demolish, prostrate, and destroy a certain part of the wall of said prison belonging to and enclosing the same, and thereby to effect the escape of themselves and of divers other prisoners, then lawfully confined in said prison, and in the lawful custody of the keeper thereof, from and out of the said prison, on the day of now last past, at in the county aforesaid, did unlawfully and wickedly conspire, combine, confederate, and agree among themselves for the purpose afore- said ; and that in pursuance of, and according to the conspiracy, combination, confederacy, and agreement aforesaid, so as afore- said had among themselves, they the said A. B., C. D., and E. F. did then and there make and cause and procure to be made a certain large hole and breach in the said wall of the said prison, of the length of six feet, and of the width of six feet ; and then and there unlawfully and wickedly put, placed, and laid a large quantity of gunpowxler, to wit, ten pounds of gunpowder, into the said hole and breach, so as aforesaid made in the wall aforesaid, with intent to set fire to the said gunpowder, and thereby to break down, blow up, demolish, prostrate, and destroy part of the said wall, and by the means last mentioned to effect the escape of themselves and the said other prisoners so con- fined in die said prison, and in the lawful custody of the keeper thereof, from and out of the same; against the peace and dig- nity of the Commonwealth aforesaid. 132. For a Conspiracy to persuade a Man not to give Evi- dence against One committed for Trial} The jurors &;c., upon their oath present, that at the time of the conspiracy, combination, confederacy, and agreement hereafter mentioned, one A. B. was a prisoner in the Commonwealth's gaol, situated in B., in the county aforesaid, lawfully committed and charged with a certain felony, before that time by him commit- ted, and a certain indictment was about to be preferred against him the said A. B. for the said felony, and diat one C. D. was a material witness in support of such bill of indictment ; and that E. F. and G. H., both of in the county aforesaid, laborers, well knowing the premises, and contriving and intending to pre- ^ 3 Chitt. 1155, 1156. See other counts in the indictment in Chitty. The 4th, without alleging any overt act, was held good. See the two next prece- dents, No. 132, and 133, and the authorities there quoted. CONSPIRACY. 109 vent the due course of law and justice, and to prevent the said C. D. from attending as a witness in support of said bill of in- dictment about to be preferred as aforesaid, on at and while the said A. B. was a prisoner in the said prison as last aforesaid for the said felony, wilfully and corruptly did con- spire, combine, confederate, and agree among themselves to in- duce the said C. D. to suppress the evidence he knew concern- ing said felony, and to prevent the said C. D. from attending to give evidence as a witness in support of said bill of indictment against the said A. B., so about to be preferred against him as aforesaid ; against the peace and dignity of the Commonwealth aforesaid. 133. Another Form for the same Conspiracy, without averring any Overt Act} The jurors Stc, upon their oath present, that A. B., C. D., and E. F., all of in the county of laborers, being evil disposed persons and well knowiug that a certain bill of in- dictment for felony was intended, and about to be preferred against one G. H., and that one I. J. was a material witness in support of such bill of indictment, on at in the county aforesaid, did unlawfully and wickedly conspire, com- bine, confederate, and agree together, to induce the said I. J. to suppress the evidence he knew, and which was within his know- ledge touching the said felony, and to withdraw and conceal himself, in order to prevent his being examined as a witness in support of said bill of indictment, so as aforesaid intended to be preferred ; against the peace and dignity of the Commonwealth aforesaid. 134.. For a Conspiracy to cheat Another, without alleging any Overt Act.^ The jurors &c., upon their oath present, that A. B. and C. D., both ol B., in the county aforesaid, yeomen, being evil disposed persons, and devising and intending one E. F. to injure and de- fraud, on the day of at in the county aforesaid, did unlawfully conspire, combine, confederate, and agree together, the said E. F. to injure, cheat, and defraud of his monies, goods, * See 3 Chitt. 1156, who says this count is good, and cites 1 Salk. 174; 2 Ld Raym. 1167. See also ante, precedent No. 120, note (2). * This form, concise as it is, will be sufficient and valid upon the authorities referred to in precedent No. 120, note (2). See also 3 Chitt, 1186, a count for a general conspiracy, stating no overt act whatever. 110 ELECTIONS. and chattels ; against the peace and dignity of the Commonwealth aforesaid. CoiiRECTioN, House of. — See " Nuisance." Counterfeiting. — See " Forgery." Deceit. — See " Cheats." Duelling. — See " Challenges to Fight." ELECTIONS. 135. Indictment for fraudulently voting at an Election of Gov- ernor, SfC.^ The jurors &:c., upon their oath present, that on the first Monday of April now last past, (it heing the sixth day of said month) the male inhabitants of the town of in the county of were convened according to the constitution and laws of this Commonwealth, in legal town meeting, for the choice and elaction of governor, lieutenant governor, counsellors, and sena- tors for this Commonwealth, for the year then next ensuing, and now current ; at which meeting of said inhabitants, A. B., of B., in the county aforesaid, yeoman, appeared to give in his vote and list of persons to be voted for, at the choice and elec- tion aforesaid ; he the said A. B. being then and there one of the male inhabitants of said town of and legally qualified to give in his vole and list at the choice and election aforesaid ; and that he the said A. B., being a person regardless of the rights of the people, and of the freedom and purity of elections in this Commonwealth, and of the several laws thereof made to regulate and preserve the same, on the said sixth day of April, 1 This precedent is founded upon the 3d section of the statute of Massachusetts of 1800, c. 74, § 3, and is in the same form of those that have heen used and sanc- tioned in the Suprume Judicial Court of Massachusetts. Indictments at common law have also been maintained in that court against officers of towns, for abuse of their powers in conducting the public elections, upon the principle of the com- mon law, that there is an implied engagement in the acceptance of all offices, that they shall be faithfully executed. ELECTIONS. Ill in the year aforesaid, at B. aforesaid, in the county aforesaid, did knowingly and designedly, give in more than one vote and list of persons to be elected and chosen into die said offices, at one lime of balloting, at the choice and election aforesaid ; against the peace of said Commonwealth, and contrary to the form of the several statutes in such case made and provided.^ 13G. Jlsrainst the Selectmen of a Town, for fraudulently ad- mitting Persons not qiudified to vote at an Election.- The jurors he, upon their oath present, that on the first Monday of April now last past, (it being die sixth day of said month,) the male inhabitants of the town of Northfield in the county of Franklin, were duly and legally convened in public town meeting, according to the constitution and laws of this Com- monwealth, for the purpose of giving in their votes and lists at the choice and election of governor, lieutenant governor, coun- sellors, and senators of this Commonwealth for the year then ensuing and now current, at which said town meeting A. B., C. D., and E. F., all of whom were the selectmen of the said town of Northfield for the year aforesaid, having been legally chosen and sworn into that office, appeared to preside at and to regulate said town meeting, and did then and there undertake to preside at and regulate said meeting, according to their oath and duty in that behalf; and that the said A. B., C. D., and E. F., selectmen as aforesaid, being persons regardless of the rights of the people, and of the freedom and purity of elections, and of the constitution and laws of this Commonwealth regulating the same, on die said sixth day of April aforesaid, at Northfield aforesaid, in the county aforesaid, did knowingly and corruptly neglect and refuse to comply with and perform their several du- ties respectively required of them by law, as pointed out in and by the cojis'itution and laws of this Commonwealth ; that is to say, the said A. B., C. D., and E. F., when presiding at said * In the case of this offence of fraudulent voting, there are several statutes in force, creating the offence and increasing the penalty. This precedent therefore concludes " against the form of the several statutes " &.c. * This was the indictment against the selectmen of Northfield, tried in the Supreme Court in the county of Hampshire. It might be condensed consist- ently with its validity. As the offence is not expressly created by statute, it is advisable to conclude the indictment both at common law and upon the " sev- eral statutes." See statute 1S!)6, c. 2;), § 4, as to the oaih of selectmen. The words in italics in the body of this precedent, coataio the susbtance and words of this oath. 112 ELECTIONS. town meeting and regulating the same in their said office and capacity of selectmen as aforesaid, did then and there knowingly and corruptly admit one Lewis Field, one Robert Trip, and one James Robinson, to give in their several votes and lists, at the town meeting and choice aforesaid ; and did then and there knowingly and corruptly receive the votes and lists of persons to be then and there voted for, elected, and chosen into the offices aforesaid, of them the said Lewis Field, Robert Trip, and James Robinson, when in truth and in fact, they had no right to vote and give in their lists of persons to be voted for, elected, and chosen into the offices aforesaid, at said meeting and choice, and had not the qualifications required by the constitution and laws of this Commonwealth to vote and give in their lists of persons to be voted for, elected, and chosen into the offices aforesaid, at the meeting and choice aforesaid ; that is to say, the said Lewis Field was not an inhabitant of the said town of Northfield, on the said sixth day of April aforesaid, and did not dwell and had not his home therein ; and that the said Robert Trip and James Robinson, on the said sixth day of April aforesaid, or at any other time, had not, nor had either of them, a freehold estate within the said Commonwealth, of the annual income of ten dollars, or any estate of the value of two hundred dollars ; of all which the said A. B., C. D., and E. F. were then and there well knowing. And the jurors aforesaid, upon their oath afore- said, do further present, that the same votes and lists of the said Lewis Field, Robert Trip, and James Robinson, so as aforesaid knowingly and corrupdy admitted and received by them the said A. B., C. D., and E. F., they the said A. B., C. D., and E. F. did knowingly and corruptly cause to be recorded and returned upon the lists of persons voted for as governor, lieuten- ant governor, counsellors, and senators for the year aforesaid, at the meeting and choice aforesaid ; which list, containing the votes of said Field, Trip, and Robinson, thsy the said A. B., C. D., and E. F. did knowingly and corruptly transmit, and cause to be transmitted to the office of the secretary of this Common- wealth, according to the direction of the law and constitution of this Commonweahh ; they the said A. B., C. D., and E. F., well knowing that the said Field, Trip, and Robinson w^ere not qualified according to the constitution and laws of this Common- weath to vote and give in theii lists of persons to be voted for, elected, and chosen into the offices aforesaid ; in violation of the oath and duty of them the said A. B., C. D., and E. F. in their said offices of selectment of said town of Northfield ; against the EMBRACERY. 113 peace and dignity of said Commonwealth, and contrary to the form of the several statutes in such case made and provided.^ EMBRACERY. 137. For Einhrncery, hy pcrsumUiis; a Juror to give his Verdict in Favor of the Defcndani, and for soliciting the other Jurors to do the likc.^ The jurors «i:c., upon their oath present, that A. B., of in the count) aforesaid, yeouian, on at in said county of B., knowing that a certain jury of the said county of B. was then didy returned, iinpannelled, and sworn, to try a certain issue joined in the Supreme Judicial Court, then held and in session according to law, at B. aforesaid, in and for the said county of B., between C. 1)., plainiifF, and E. F., defendant, in a plea of the case ; and then also knowing that a trial was to be had upon the said issue, on the day of in the year aforesaid, before the said Supreme Judicial Court then and there held for the said county of B., the said A. B., wickedly and unlawfully intending and devising to hinder a just and law- ful trial of the said issue by the jurors aforesaid, returned, im- pannelled, and sworn as aforesaid, to try the said issue, on at in the county aforesaid, unlawfully, wickedly, and un- justly, on behalf of the said E. F., die defendant in the said cause, did solicit and persuade one G. H., one of the jurors of the said jury, returned, impannelled, and sworn according to law for the trial of said issue, to appear and attend in lavor of the said E. F., the said defendant in the said cause, and then and there did utter to the said G. H., one of die jurors as aforesaid, * This indictment was tried as stated in the preceding note. No objection was made to it. It may be a question, however, whether the several defend- ants could be joined. The offences are several and different ; the deficien- cies in the qualifications of the voters are alleged to be different, would require different proof, and admit of distinct defences, depending upon facts indepen- dent and different in their nature. - This precedent is taken, in substance, from a similar precedent in Trem. P. C. 176, and is the ov\y one to be met with, either in that collection, or in Coke's Entries, Chitt. C. L., Stark. C. P., Cro. C. C, or Cro. C. A. There are two other precedents in an ancient book, containing precedents of indictments, informations, &c., entitled " Officium Clerici Pads." 15 114 ESCAPE. divers words and discourses, by way of commendation, on be- half of him the said E. F., the said defendant, and in disparage- ment of the said C. D., the plaintiff; and that he the said A. B. did then and Uiere unlawfully and corrii|)tly move and desire the said G. II. to solicit and persuacle the olher jurors, letuined, impannelled, and sworn to try the said issue, to give a verdict for the said E. F., the defendant in the said cause, he ilie said A. B. then and there well knowing, that the said G. H. was one of the jurors returned, impannelled, and sworn to try the said issue ; and that the jurors of said jury, by reason of speaking and uttering the words and discoiu'ses aforesaid, did give their verdict for the said E. F., the said defendant in the cause afore- said ; against the peace and dignity of the Commonwealth aforesaid.^ ESCAPE. 138. Indictment at Common Law for escaping from a Con- stable, being in Custody under a Warrant for Larceny.^ The jurors &c., upon their oath present, that A. B., of B., in the county aforesaid, gentleman, he the said A. B. being a constable of the said town of B., duly and legally authorized to execute and perform the duties of that office, on at 'in the county aforesaid, did take and arrest one C. D., by virtue of a warrant from E. F., Esquire, one of the justices of the peace in and for the county aforesaid, on suspicion of having committed a certain felony, in feloniously stealing, taking, and carrying away one gelding, of the value of dollars, of the property of one G. H. ; and that thereupon he the said C. D., under the custody of him the said A. B., the constable as afore- said, was then and there brought before the said E. F., Esquire, one of the justices of the peace in and for the county aforesaid, duly authorized to discharge and perform the duties of that of- fice. Whereupon such proceedings were had, that the said E. F., Esquire, by his warrant of commitment, directed to him 1 The last allegation in this precedent, viz. that the jury gave their verdict for defendant by reason of the solicitations, &c. is not necessary. The crime is complete by the attempt, whether it succeed or not. Hawk. b. 1, c, 85, § 1 & 2, and authorities there quoted. - 2 Chitt. C. L. 159 : Stark. 602, 608 ; Cro. C. C. 188. ESCAPE. 115 the said A. B., did then and there command the said A. B. to convey the said C. D. to the gaol of said Commonweahh, at B. aforesaid, in the county aforesaid, there to be safely kept until he should be lawfully delivered thence by due course of law ; by virtue of which warrant the said C. D. was then and there taken and detained by l^r* the said A. B. ; and that, as he the said A. B. was conveying and carrying him the said C. D. to the gaol aforesaid afterwards, to wit, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, he the said C. D. did forcibly break away and escape from and out of the custody of him the said A. B., constable as aforesaid, against the will of him the said A. B., and against the peace and dignity of the Commonwealth afore- said. 139. Against a Prisoner in Custody, for breaking out of Gaol. ^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of laborer, on the day of now last past, at B., in the county aforesaid, was arrested, detained, and imprisoned in the Commonwealth's gaol, situated in B. aforesaid, in the county aforesaid, for a certain felony by him committed, that is to say, for feloniously stealing, taking, and carrying away one gelding, of the value of one hun- dred dollars, of the goods, chattels, and property of one C. D., and that he the said A. B., on at with force and arms, the aforesaid gaol of the said Commonwealth did forcibly break, and thereby did then and there escape from and out of the said gaol ; against the peace and dignity of the Common- wealth aforesaid. 140. Against a Constable for a negligent Escape.^ The jurors &:c., upon their oath present, that on the day of now last past, at B. aforesaid, in the county afore- 1 2 Chitt. C. L. 160, where it is said this precedent is taken from Burn J., Prison-breaking ; Williams J., Escape, iii. It is remarkable that there is no similar precedent in Stark., Cro. C. C, Cro. C. A., or Trem. P. C. I think it would be more safe and correct, that the warrant or precept, whatever it may be, should be set out at large in the indictment ; but that is not the case in the precedent from which this form is taken. 2 See similar precedents in 2 Chitt. 181 ; Cro. C. C. 318, (6th Ed.) ; 2 Stark. 605. The same form may be used in case of a voluntary escape, by substituting the word " voluntary," for the word " negligently," at the close of the indict' raent. IIG ESCAPE. said, one A. B. cnme before C. D., Esquire, then one of the justices of the peace in and for the county aforesaid, duly and legally qualilicd and empowered to discharge and perlorm the duties of ilint office, and that the said A. 1). did tiicn and there, on his oath hefore said justice, charge, accuse, and complain, that one E. F., of B. aforesaid^lahorer, [here set forth the com- plaint.'] Whereupon such proceedings were had, that the said justice did then and there make a certain warrant under his hand and seal, in due form of law, directed to the sheriff' of the said county of or his deputy, or to any of the constables of the town of in the county aforesaid, thereby requiring them and each of them to take the body of the said E. F., and bring him before the said C D., the justice aforesaid, to be dealt with, touching said complaint, as to law and justice might appertain ; which said warrant afterwards, on the day and year aforesaid, at B. aforesaid, was delivered to I. J., of said B., in the county aforesaid, yeoman, (he being then and there one of the constables of the said town of B., duly appointed, quali- fied, and sworn to discharge and perform the duties of said of- fice,) in due form of law to be by him served and executed ; by- virtue of which warrant the said I. J. afterwards, to wit, on the day of at B. aforesaid, in the county aforesaid, did take and arrest the body of him the said E. F., and him in his custody for the cause aforesaid then and there had. Neverthe- less the said I. J. afterwards, to wit, on the day of in the year aforesaid, at B. aforesaid, in the county aforesaid, the duties of his office in that respect not regarding, unlawfully and negligently did permit the said E. F. to escape and go at large wheresoever he would, out of the custody of him the said I. J., whereby the said E. F. did then and there escape and go at large, out of the custody of the said I. J. ; against the peace and dignity of the Commonwealth aforesaid. 141. Against a Gaoler, for a voluntary Escape of a Priaoner convicted of Felony.^ The jurors &z;c., upon their oath present, that at the Supreme Judicial Court of said Commonwealth, begun and holden at \heje set forth the time and place of holding the Court,] one A. B. was duly and legally convicted of the crime of larceny, in felo- niously stealing, taking, and carrying away fifty pounds' weight of ' This precedent is drawn upon the third section of the Statute of Massachu- setts of 1784, c. 41, but it would doubtless be good at common law, and the precedent so concludes. ESCAPE. 117 tea, of the value of thirty dollars, of the goods and chattels of one C. D., whereupon it was considered, ordered, and adjudged by the said court, ihat [here set forth the sentence of the court,'] as by the record thereof and proceedings remaining among the records of said court more fully appears. And the jurors afore- said, upon their oath aforesaid, do further present, that after- wards, to wit, at the Supreme Judicial Court abovementioned, the said A. B., by order of said court, was committed to the keeping and custody of E. F., of in the county of gentleman, then and still the gaoler and prison-keeper of the Commonwealth's gaol, situated at B., in the county aforesaid, there to be kept and imprisoned in the said gaol and prison, ac- cording to, and in pursuance of the order and sentence aforesaid ; and the said E. F. him the said A. B. in his custody then and there had for the cause aforesaid, he the said A. B. having stood charged and been convicted as iiforesaid of the aforesaid felony and larceny, and thereupon committed as a prisoner as aforesaid to him the said E. F. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. F., of B., in the county aforesaid, gentleman, afterwards and before the ex- piration of the term for which the said A. B. so as aforesaid was ordered to be imprisoned, to wit, on the day of at B. aforesaid, in the county aforesaid, unlawfully, voluntarily, and contemptuously, did permit and suffer the said A. B. to escape and go at large out of the said gaol and prison ; against the peace and dignity of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.^ 142. For conveying Instruments into a Prison, with Intent to facilitate the Escape of a Prisoner.^ The jurors &.C., upon their oath present, that heretofore, to wit, on the day of now last past, at B. aforesaid, in the county aforesaid, A. B., Esquire, then being one of the justices of the peace in and for the said county of duly and legally authorized and qualified to discharge and perform the duties of that office, did make out his warrant of commit- ' The same form may be used in the case of a negligent escape, by substi- tuting the word " negligently," for the word " voluntarily," at the close of the indictment. ^ This precedent is drawn upon the second section of the statute of Massa- chusetts of 1784, c. 41. it also concludes at common law. See a similar pre- cedent in Stark. 612, drawn upon the statute of 16 Geo. 2, c. 31, § 1 ; also another in Cro. C. A. 328. ft 118 ESCAPE. iiient, in due form of law, bearing date the day and year afore- said, directed to the keeper of the Commonwealth's gaol in aforesaid, his under-keeper, or deputy ; by which said warrant of commitment, the said justice did require the keeper of said gaol, his under-keeper, or deputy, to receive into their custody the body of one C. D., who was therewith sent to them the said keeper, his under-keeper, or deputy, (the said C. D. having been brought before him the said justice, and charged, upon the oath of E. F., with having feloniously taken, stolen, and carried away a certain gelding, of the value of dollars, the proper- ty of him the said E. F.,) and him the said C. D. safely to keep until he should be discharged by due course of law ; which said warrant of commitment is as follows, [here set forth the war- rant of commitment.'] By virtue of which said warrant, the said C. D. afterwards, to wit, on the same day and year aforesaid, at B. aforesaid, was conveyed, committed, and delivered to the Commonwealth's said gaol, situated in said B., and to the keep- er thereof, for the cause aforesaid, to wit, for the felony and larceny aforesaid ; and the said C. D. was then and there law- fully detained and kept a prisoner in the aforesaid gaol, under the custody of I. J., Esquire, then the keeper of said gaol, for the felony aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that K. L., of in the county aforesaid, laborer, on the day of at B. aforesaid, in the county aforesaid, did unlawfully convey, and did cause and procure to be unlawfully conveyed into the said gaol and prison, two steel files, being instruirients proper to facilitate the escape of prisoners out of the gaol and prison aforesaid, and the same files did then and there deliver, and cause and procure to be delivered to the said C. D., (he being then and there a prisoner in said gaol and prison, and then and there lawfully detained therein (or the felony and larceny aforesaid,) without the know- ledge and privity of said keeper of said gaol and prison, or of any under-keeper of the same, which said files, being such in- struments as aforesaid, were then and there so conveyed into the said gaol and prison, and delivered to the said C. D. as afore- said, by him the said K. L., with an intent that he the said C. D. might thereby and therewith break the said gaol and prison, and unlawfully work himself out of the same, and with intent to aid and assist the said C. D. to escape and attempt to escape from and out of the said gaol and prison ; against the peace and dignity of the said Commonwealth, and contrary to the form of the statute in such case made and provided.^ ' This form will answer when the prisoner actually escapes, by inserting the EXTORTION. 119 143. Against a Prisoner- confined in Gaol, for attempting to break the Gaol in order to make his Escape.^ The jnrors he, upon their oath present, that A. B., of in the county of laborer, on the day of now last past, at B., in the comity aforesaid, was arrested, detained, and imprisoned in the Commonwealth's gaol, situated in B. afc^resaid, for [here set forth the warrant or precept vpon which the prisoner was committed,^ and that he the iraid A. B., being a prisoner lawfully detained in the gaol aforesaid, and in the cus- tody of the keeper thereof, for the cause aforesaid, on at B. aforesaid, in the county aforesaid, with force and arms, unlaw- fully and wilfully did attempt to brJkk the aforesaid gaol, and to escape and go at large from and out of the same gaol, by then and there cutting and sawing asunder two iron bars of the said gaol, and also by then and there breaking, cutting, and removing a great quantity of stone, parcel of the wall of said gaol ; against the peace and dignity of the Commonwealth aforesaid.^ EXTORTION. 144. Indictment against a Justice of the Peace for Extortion : On the sixth Section of the Statute of Massachusetts. '^ The jurors he, upon their oath present, that A. B., of &,c.. Esquire, on the day of &c , then being one of the justices words in the latter clause of the section, viz, " that if any prisoner shall make his escape by means of any instrument," &c. ' Stark. 608, (a similar precedent, but a defective one ; see note (a.) to the precedent;) 2 Chitt. 164, 165; Cro. C. A. 219. These precedents are all alike ; but they may be safely abridged. '^ There is a precedent in Stark. 602, and another in Chitt. 162, against a per- son for aiding a prisoner to escape by assisting him to break th? prison. It would be more correct to proceed against them both as principals, as in misde- meanors all are principals. The same remark is applicable to the precedents in Stark. 606; 2 Chitt. 176 ; Cro. C A. 216, against a turnkey of a prison, for aiding and assisting a prisoner to escape by breaking the gaol. 3 Stat. 1795, c. 41, § 6. By this section the prosecution is limited to one year from the time when the offence is committed. This form may be adopted, mutatis mutandis, for extortions by all other officers and persons mentioned in the aforesaid statute. 120 EXTORTION. of the peace in and for the county of duly and legally ap- pointed and qualified to perform the duties of that ofiice, not regarding; tlie duties of said office, but contriving and intending one C. D. to injure and oppress, on the said day of in the year aforesaid, at in the county aforesaid, by color of his said office, did wilfully, corruptly, and extorsively de- mand, take, and receive of him the said C. D. a greater fee than is allowed and provided by law for the trial of a certain issue, then and there in due form of law joined and pending before him the said A. B., as a justice of the peace for the said county of between the aforesaid C. D. and one E. F., in a cer- tain civil action coMiincnc%d and entered by the said C. D. against the said E. F. before him the said A. B., justice of the peace as afores;iicl, at a Justice's Court duly appointed, and then and there held by him the said A. B., to wit, the sum of for the trial of the said issue, which sum is more than the fee allowed and provided by law for the service aforesaid ; con- trary to the duty of him the said A. B. in his office aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 145. Against a Constable, for tafci7ig Money under Rretence of getting the Party discharged without any Proceedings to be had before a Justice of the Peace} The jurors Sic, upon their oath present, that A. B., of &ic., on the day of &,c., at &.C., being then and still one of the con- stables of the town of in the county aforesaid, did arrest and take into his custody one C. D., by virtue of a warrant duly issued by one E. F., Esquire, then and still being one of the justices of the peace in and for the county aforesaid, duly and legally appointed, authorized, and empowered to discharge and perform the duties of said office, directed to [here insert the war- rant ;] and the said C D., so being in custody as aforesaid, for the purpose aforesaid, to answer the complaint aforesaid, he the said A. B. did then and there fraudulently, unlawfully, and inju- riously demand, have, receive, and obtain of and from him the said C. D. the sum of upon pretence and color, that he the said A. B. would procure and obtain a discharge of said war- rant, without any proceedings being had thereon ; whereas in truth and in fact the said A. B. did not procure and obtain a » This precedent is altered from one in 2 Chitt. C. L. 293, where other pre- cedents are quoted from 4 Wentw. 146, 147 ; Burns J. Extortion ; Williams J. Extortion; Cro. C. C. 327-330, (6th Ed.) EXTORTION. 121 discharge of said warrant ; against the peace and dignity of the Conimonvvealih aforesaid. 146. Afrainst a Constable for extorting Money of n Person ap- prehended by him upon a Warrant, to let him go at large.^ The jurors &;c., upon their oath present, that A. B., of &.c., on at in the county aforesaid, then and there being one of the constables of the town of in the county afore- said, did take and arrest one C. D. by virtue of a warrant duly made and issued, which he tho said A. 13. then and there had, directed. Sec. \here insert the icrtrnnit ;'\ and that the said A. B. him the said C. D. then and there had in his custody by virtue of the said warrant, and Uiat the said A. B. afterwards, to wit, on at in the county aforesaid, unlawfully, corruptly, and extorsively, for the sake of gain, and contrary to the duty of his said oOicn, did extort, receive-, and take of and from the said C. D. the sum of for discliarging the said C. D. out of the custody of him the said A. B , constable as aforesaid, with- out conveying the said C. D. before any justice of the peace in and for said county, or before any other lawful authority, to answer to the charges, matters, and things, whereof i)e stood accused and charged as aforesaid ; against the peace and digni- ty of the Commonwealth aforesaid. 147. Against a Justice of the Peace for extorting Fees for dis- charging a Recoi^nisance, and for not returning the same to the Court for u'hich it was taken.- The jurors &;c., upon their oath present, N. J., of &z;c., on Sic, and continually afterwards, until the day of the taking of this inquisition, was, and yet is, one of the justices of the peace within and for the said county of &.C., duly and legally appointed and authorized to discharge the duties of that oflice. Neverthe- less the said N. J., not regarding the duties of his said office, but perverting the trust reposed in him, and contriving and in- tending the citizens of this Commonwealth, for the private gain ' 2 Cliiu. 295, 296 ; Cro. C. C. 327, (6th Ed.) ; 2 Stark. 585. See other precedents for extortion in 2 Chitt. 296, 297 ; Cro. C. C. 327 ; 1 Tretn. P. C. 111-115 ; 2 Chitt. 300, against a collector for extorting money by color of bis office. * This precedent is substantially taken from a precedent in 1 Trem. P. 119, 120. No authority or other precedent is referred to. I think this precedent would be more correct if the indictment alleged the particular nature and con- dition of the recognisance, and also that the magistrate was authorized to take it. 16 122 rORCIBLE ENTKY AND DETAINER. of him the said N. J., to oppress and impoverish, and the due execution of justice, as much as in liim hiy, to hinder, ohstruct, and destroy, on the dny of and between that day and the day of the finding of this bill, at aforesaid, in the county aforesaid, under color of his said office of justice of the peace for the said county of a certain sum of money, to wit, the sum of for not returning a certain recognisance before him, within the time aforesaid, taken for the appearance of one G. J. at a certain term of the [Acre describe the court to which the recognisance was made returnable,^ to be holden next after the taking of the recognisance aforesaid from the said G. J., unlawfully, unjustly, and extorsively did exact, receive, and liave ; and ahliough the said next court of \_hcrc describe the court,'] for the county aforesaid, after the taking of the recognisance afore- said, and to which the said recognisance ought to have been re- turned, was held at in the county aforesaid, on the Tuesday of in the year aforesaid, in the due course of law, the said N. J. the said recognisance, to the court aforesaid, as of right, and according to his duty and the laws of said Com- monwealth he ought to have done, did not return, but suppressed the same, against the duties of his said oflice, to the great hin- drance of justice, and against the peace and dignity of the Com- monwealth aforesaid. FORCIBLE ENTRY AND DETAINER. 148. Indictment for a Forcible Entry and Detainer, at Common Law} The jurors Sic, upon their oalli present, that A. B., of &c., and C. D., of Sec, together with divers other evil disposed per- sons, whose names to the jurors aforesaid are as yet unknown, on at with force and arms, and ivith a strong hand^ unlawfully, forcibly, and injuriously, did enter into [here describe the premises according to the fact, and as accurately as is required in a declaration in ejectment,] then and there being in the peace- able possession of one E. F., and situate and being in the said town of in the county aforesaid ; and that the said A. B. 1 SChitt. 1124. See similar precedents, in Stark. 422; Cro. C. C. 331; 8 T. R. 3.57 ; 1 Russ. P. 407, note 1, (Davis's Ed.) * This allegation is essential. 8 T. R. 357. FORESTALLING, ENGROSSING, AND UECriATING. 123 and C. D., tou;etlier with llie said evil disposed persons, then and there will) force as aforesaid, and with a strong iiand, lui- lavvfully, violently, forcibly, and injurionsly did expel, amove, and put out the said E. F. from the pessession of the said prem- ises with the appurtenances, and the said E. F., so as aforesaid expelled,. amoved, and put out from the possession of the sa(ne, with force and arms and widi a stron;;; hand, unlawfully, violent- ly, forcibly, and injuriously have kept out, from the day and year aforesaid, innil the taking of this inciuisilion, and still do keep out, and other wrongs to the said E. F. then and there did, to the great damage of him the said E. F., and against the peace and dignity of the Commonwealih aforesaid.^ The proceedings, in cases of Forcible Entry and Detainer are regulated by statute in the several States. The proceeding by indictment at common law is unknown in Massachusetts. FORESTALLING, ENGROSSING, AND REGRATING. 149. For forestalling Lambs in their Way to a public Market.^ The jurors kc, upon their oath present, that A. B., of in the county aforesaid, yeoman, on at did buy and cause to be bought of one C. D. tliirty lambs, then and tliere coming and being driven towards a certain market in the city of Boston and county of Suffolk, for the sale of all kinds of provi- sions, called Fanned Hall Market, for the purpose of being ex- posed to sale and sold in the said market, and before the same were brought into the said market where the same should have been sold ; against the peace and dignity of the Commonwealth aforesaid. ' There are two other precedents in Chitty similar to the foregoing, excepting that they conclude upon the ancient English statutes. The last precedent (p. 1126) is nothing more than the form of an indictment for a riot at common law. ' 2 Chitt. 533. If the name of tlie person of whom the article was purchased be unknown, it may be alleged in the indictment, that it was " bought and caused to be bought of a person whose name is to the said jurors unknown." 124 FORGEUV AND COUNTEUFEITING. 1 50. For Engrossing} The jurors &c., upon ilicir oaili present, iliat A. B., of &,c., on " at aloresaiil, did unhiwfully engross and get into his hands, by buying of and from divers persons, to the jurors aforesaid unknown, a large quantity, to wit, one thousand bush- els" of wlieut, with intent to sell the same again for lucre, gain, and at an unreasonable profit ; against the peace and dignity of ihe Commonwealth albresaid. 151. For Rcgrating? The jurors Sec., upon their oath present, that A. B., of &tc., on at in a certain market there, called the market, unlawfully did buy, obtain, and get into his hands and possession, of and from one C. 1)., a large quantity of to wit, one hundred |)ounds' weight of al and for the price of for each and every poinul of the said and that af- terwards, to wit, o\\ the said day of he the said A. B., al aforesaid, in the county albresaid, in the same market there, unlawfully did regrate the said one hundred pounds' weight of and did then and there sell the same again to one E. F., at and for the price of for each and every pound weight of the said with a deduction of on the whole price of the said one hundred pounds' weight of being al- lowed and thrown back by the said A. B. to the said E. F. ; against the peace and dignity of the Commonwealth aforesaid. FORGERY AND COUNTERFEITING. 152. For forging a Promissory JVotefor the Payment of Money : On the first Section of the Statute of Massachusetts o/"1804, c. UO} The jurors &c., upon their oath present, that A. B., of k,c., on the day of at in the county aforesaid, did » 2 Chitt. 534. » The quantity must be stated. 1 East, 538 ; 2 Stark. 654. ' 2 Chitt. 535, 536, note (g), where a case is stated in which a motion in arrest of judgment was submitted, upon the ground that the act of regrating is not an offence at common law ; no decision was had, the Court being equally- divided. See other precedents, Cro. C. C. ; 2 Stark. 654. * This and the fifteen following precedents are original, and are drawn upt ' FORGERY AND COUNTERFEITING. 125^. falsely make, forge, and counterfeit, and did cause and procure to be falsely made, forged, and counterfeited, a certain promisso- ry note lor the payment of money, purporting to be made mid signed by one C D., for t!>e su.n of "dollars, whici, said lalse, forged, and counterfeit promissory note is of the purport and effect ollovvmg,^ to wit, [here insert a true copy of the note m the words and figures of it,] with intent the said C. D. to in- jure and delraud ; against the peace of said Commonwealth, and contrary to the lorm of the statute in such case made and pro- vided.* I 153. For forging a Certificate of a Justice of the Peace : On the first Section of the Statute. The jurors &:c., upon their oath present, that A. 13., of &;c ?" ,^^ .'" '''^' <^""U"ty aforesaid, did falsely make! lorgc, and counterleit, and did cause and procure to be falsely made iorged, and counterfeited, a certain certificate and attesta- tion ol one C. D., Esqune, one of the justices of the peace in and lor the county of which said false, forged, and coun- terleit certihcate and attestation is of the purport and effect fol- lowing, to w.t, [here insert an exact copy of the certificate in words aud figures,] which said false, forged, and counte/feit cer- tificate and attestation, then and there purported to be the cer- tfficate and attestation of a justice of the peace, in a matter wherein the said certificate and attestation was receivable, and might be taken as legal proof; widi intent one E. F. to injure and defraud ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and pro- vided. ' 1 54. For uttering and publishing a forged Instrument : On the last Clause of the first Section of the Statute. The jurors Sic, upon their oath present, that A. B of &c on the day of now last past, at in the county the several sections of the statute of Massachusetts against forgery and counter feUing. of 1804. c. 120. They are in the same forms which have been adopted ever since the statute was enacted. • This is the most proper allegation, as to the mode of describing the for-ed instrument It .s neither necessary nor advisable to allege it in the " tenor fol- lowing." See 2 East, P. C. 957, § 53, 54. Mf the note forged purports to be given for specific articles, then allege it to be a certain promissory note for the dehvery of goods," as in the words of the statute. 126 FORfiEHY AND COUNTEUFEITINR. aforesaid, had in his custody and possession a certain false, forged, and couiitcrfcit promissory note for the payment of money, purporiinfi; to he made and signed hy one C. D., for the sum of dollars; which said false, forged, and counterfeit promissory note is of the following purport and effect, to wit, [/lere irmtrt a correct copy of the. forircd instrument, in ivords and figures ;'\ and that he the said A. B. the aforesaid false, forged, and counterfeit promissory note did then and there utter and puhlish as true, with intent one E. F. to injure and defraud, he the said A. B. then and there well knowing the aforesaid note to he false, forged, and counterfeit; against the peace of said Commonwealth, and contrary to the form of tlie statute in such case made and provided.^ Precedents upon the Second Section of the Statute. 155. For forging a Certificate of a public Debt. The jurors &ic., upon their oath present, that A. B., of &ic., on at did falsely make, forge, and counterfeit, and did cause and procin-e to ho falsely made, forged, and counter- feited, and did willingly aid and assist in falsely making, forging, and counterfeiting a certain note, [or certificate or other bill of credit, as the case may 6e,] purporting to he a note which had been duly issued hy the treasurer of the said Commonwealth, thereto duly authorized for a debt of this Commonwealth ; which said false, forged, and counterfeit note is of the purport and ef- fect following, to wit, [Acre insert an exact copy of the note or instrument in loords and figures ;'\ with intent the said Common- wealth to injure and defraud ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided.^ ' The same form may be adopted for the forgery of all the different instru- ments mentioned in this section of the statute, making use of the precise words used in the statute to describe the instrument. 2 If (he note or certificate was issued by a commissioner or commissioners, it is to be so alleged, instead of alleging them to be issued by the treasurer. See the words of the section. This form may be used and adapted to all the cases of uttering and publishing forged instruments which may be prosecuted upon this section of the statute. FORGERY AND COUNTERFEITING. 127 15G. For forging a Bank Bill of a Bank incorported vrithin ' this State. The jurors kc, upon their oath present, that A. B., of &tc fn"r<.P anf 'r-^''^ T"^^' aforesaid, did falsely make' foSi i ^°"";^'-/^.'S^"d did procure to he falsely made S; tn ,. h ''"^''f '' \''''''''' °'^"'^ bill, purporting to be ni^dL "■'' '\''''^' ''''^ '" ^^^ "^'^'^ "^ behalf 'of the p.c Kitnt, dn-ectors, and company of the (Boston) bank, the same wi hh/^h 7°''"°'' '^>' '-^^^ J'^^'"^ed and authorized as a bank TnernHt ^'"/^^^ ' '- °'^'-^ --' Boston bank TnC ' 'T'^';- "^""'^ ^'"-^ P^^accof said Commonwealth, provided '^' ^ "" °' ''^' '^"'"'^ '" ^"^'^ ^^^^^ '"^^^ ^"d 157. For being possessed often counterfeit Bank Bills at the same time, with intent to pass the same} The jurors &:c., upon their oath present, that A. B., of Stc at had m his custody and possession ten false, forged, and /;of the dcfnmatory and malicious libel herein af- terwards nienlioned, to wit, on &ic., one A. B. preferred to and hefore C. D., Esquire, then and still one of the justices of the peace within and for the county of duly and legally au- thorized, appointed, and qualified to discharge and perforin the duties of said office, a certain complaint and charge, in due form of law, against one E. F., for that he the said E. F., on at with force a»id arms, in and upon the body of her the said A. B did make an assault, with intent her the said A. B. to ravish and carnally know, by force, and against her will ; against the peace he, and the forui of the statute iLc.~ And the jurors aforesaid, upon iheir oath aforesaid, do further present, that G. IL, of &c., printer, well knowing the premises, but devising and intending to traduce and defame the said E. F., and to in- jure and jirejudice him in the minds of the good people of said Commonwealth, and to cause it to be believed, that he was guilty of the said felonious assault, and thereby to prevent the due ad- ministration of justice, and to deprive the said E. F. of the bene- fit of an impartial trial for and concerning the matter of the said charge, on at he, did wilfully and maliciously print and publish, and did cause and procure to be printed and published, a certain scandalous, malicious, and defamatory libel, of and concerning the said charge and the matter thereof, and of and concerning the said E. F. ; which said scandalous and malicious libel is of the following purport and effect, that is to say, [Acre insert the publication correctly and with proper innendoes ;] to the great damage &c. of him the said E. F., and against the peace and dignity of tlie Commonwealth aforesaid. 215. For a Libel on a Person who was dead? The jurors he, upon their oath present, that A. B., of &;c., yeoman, being a person of a revengeful and malicious disposi- 1 Altered from a precedent in 3 Cliitt. 911. See 2 Camp. Rep. 563, where this was held libellous. * The process, whether pending hefore a magistrate, or any other court or tribunal, ought to be correctly set forth. » See a similar precedent, 3 Chitt. 914, note (/c), where it is said that the averment of the intent to vilify the family, is essential to the vaUdity of the in- dictment. See also 4 T. R. 126. LIBEL. i5d tlon, and maliciously intending to injure, defanfie, vilify, and dis- grace the memory, character, and reputation of one C. D., then deceased, and to bring the family, relations, and descendants of the said C. D. into disgrace, contempt, and infamy, and to cause it to be believed, that the said C. D., in his life tjmc, was a person of a vicious, immoral, and depraved mind and disposition, and destitute of filial duty and affection, and that the said C. D. led an immoral and profligate life, on at &ic., in said county, unlawfully and maliciously did print and publish, and did cause and procure to be printed and published, in a certain newspaper called " The JVorld,^'' a certain false, scandalous, and malicious libel, of and concerning die said C. D., which said false, scandalous, and malicious libel is of the pinport and effect following, to wit, [//ere set fjrth the Ubd, ivith proper inucnclocs,'] to the great scandal and disgrace of the memory, reputation, and character of the said C. D., and against the peace and dignity of the Commonwealih aforesaid. 21G. For publishing an obscene Print} The jurors &c., upon their oath present, that A. B., of &c., being an evil disposed person, and devising and intending the morals as well of the youth as of other citizens of this Com- monwealth to corrupt and debauch, on the day ot at in the county aforesaid, unlawfully, wantonly, and ma- liciously did utter and publish to one C. D., a citizen of said Commonweahh, a certain lewd, scandalous, and obscene print on paper, representing a man in an indecent and obscene pos- ture with a woman, that is to say, in the act and posture of car- nal copulation with each other, which said lewd, scandalous, and obscene print was contained and published in a certain printed book, entitled " Memoirs of a Woman of Pleasure," lo the manifest corruption and subversion of the morals and man- ners of the youth of this Commonwealth and of tlie citizens thereof, to the evil and pernicious example of all others in like case to offend, and against the peace and dignity of the Com- monwealth aforesaid. ' This is the case of Commonwealth vs. Holmes, 17 Mass. R. 336. This indictment did not allege what the obscene posture was, and it was decided ia that case not to be necessary ; perhaps, however, strict technical accuiacy may require it. See another precedent in 2 Stark. C. P. G36, against a bookseller, for uttering and selling a pamphlet containing an obscene print. 160 LIBEL. 217. For publishing a seditions Libel} The jurors &;c., upon their oath present, that A. B., of See, beins; a malicious, seditious, and ill-disposed person, and greatly disaffected to the government of the United States [or the gov- ernment of the state of one of the United Slates of America, as the case may ie,] and to the administration thereof, and ma- liciously and seditiously devising and intending to stir Jip and ex- cite discontents and seditions among the citizens of the said United States, [or the said state of as the case may be,'] and to alienate and withdraw the fidelity and al'egiance of the said citizens from the said government and the administration thereof, on at &c., maliciously and seditiously did write and publish, and cause and procure to be written and published, a certain false, malicious, and seditious libel of and concerning the said government and the administration thereof, which said libel is of the following purport and effect, that is to say, [here insert the libel, vcrbatitn, with proper inucndoes,] in contempt of the government aforesaid, its constitution and laws, and the ad- ministration of the same ; to the evil and pernicious example of all others in like case to offend, and against the peace and dig- nity of the Commonwealth aforesaid.^ 218. For writhw a libellous Letter to the Prosecutor? O The jurors &.c., upon their oath present, that A. B., of &;c., maliciously and unlawfully intending one C. D. to injure, op- press, and vilify, and bring into contempt and ridicule, on at in said county, unlawfully and maliciously did write and cause to be written a certain false, malicious, and defamato- tory libel of and concerning the said C. D., which said false, malicious, and defamatory libel is of the following purport and effect, that is to say, \Jiere insert the libel, loith proper inuen- does,'\ which said false, malicious, and defamatory libel he the said A. B. afterwards, to wit, on the same day and year afore- 1 Cro. C. A. 73. This was the indictment against Dr. John Home, for a libel upon the British government, for their proceedings against the American colo- nies, at the commencement of the American revolution. See also 2 Stark. C. P. 625. ^ If the libel is printed, state it as follows ; " did maliciously and seditiously print and publish, and cause and procure to be printed and published, in a cer- tain newspaper, called and entitled [/lere insert the title of the neivspaper,"] a certain false, malicious, and seditious libel," [as stated in the /oregoing prece- dent.} 3 Cro. C. A. 70, 71. LIBKL. 161 said, at aforesaid, in the county aforesaid, maliciously and unlawfully did send and deliver, and cause to be sent and de- livered to the said C. D., in the form of a letter, directed to the said C. D., by the name of [here insert the svperscription to the letter;] to the great injury, damage, and scandal of the said C. D., and against the j)eace and dignity of the Conimonwcalih aforesaid.^ 219. For a blasphemous Libel.^ The jurors &i.c., upon their oath present, that A. B., of disregarding the laws and religion of liiis Coinnionweallh, and profanely devising and intending to bring the Holy Scriptures and the Christian religion into disbelief and contempt among the people of this Comnionweahh, on at unlawfully and wickedly did compose, print, and pn[)lish, and did cause and pro- cure to be composed, printed, and publishetl, a certain scanda- lous, impious, blasphemous, and profane libel, of anrl concerning the Holy Scriptures and of and concerning the Christian re- ligion ; in one part of which said libel, among other things, there were and are contained certain scandalous, impious, and blasphe- mous matters and things of and concerning the Holy Scriptures and the Christian religiot), according to the pm-port and effect following, to wit, [here, set out the libellous passage ;] to the great scandal and reproach of the Christian religion, and against the peace and dignity of the Commonwealth aforesaid. 220. For a Libel upon a Senator of the United States.^ The jmors &:c., upon their oath present, thnt T. L., of being a person regardless of the integrity and patriotism, which the ciiizens of this Commonwealih and of the United States, when elected to and entrusted with offices of honor, trust, and responsibility, in the adniinistration of the government of this Commonwealth and of the United States, ought to possess and sustain, and unlawfully and maliciously devising and intending to ' A second count may be added, leaving out what relates to the sending of the libel, and alleging, instead thereof, " did write and publish, and cause to be written and published," &c. * This precedent is taken from Archb. C. P. 294. 3 This is the substance of the indictment against T. L. Esq., for a libel upon D. W. It was taken from an English precedent, which was remarkable for its prolix prefatory averments, all cf which are here left out, excepting those which h.id a direct and true application to the public character and official situ- ation of the prosecutor. 21 162 LOTTERY. traduce, vilify, and brinj; into nontPmpt and detestation one I). W., of he, who was, on the day liereaftcr mentioned, nnd still is, one of the senators in the Congress of the United States of Atneiica for the state of Massachuselts, duly and constitution- ally elected and appointed to that office, and also urdawfully and maliciously intending to insinuate and cause it to be believed, that the said D. W. and divers other distinguished and [);Uiiotic citizens of this Commonweal'h had been engaged in an atrocious and treasonable plot to dissolve the union of the sisid United States, then and still consliiuiing the government of the s;.id United Slates under the present consiitiition thereof, and furlber maliciously intending to make it to be believed, that J. Q. A., then the president of the United States, had denounced the said D. VV. as a traitor to his country, on at unlawfully, deliberately, and maliciously did compose, print, and publish, and did cause and procure to be compostd, printed, and published, in a certain newspaper railed the "Jackson Republican," of and concerning him the said D. VV., an unlawful and malicious libel, according to the purport and effect, and in substance as follows, that is to say, \^here insert the libellous publicittion, with all neces- sary inuendoes and averments ;\ to the great injury, scandal, and disgrace of tlie said D. W., and against the peace and dignity of the Commonuealth afuresaid. LOTTERY. Forms of Indictment upon the Statutes prohibiting the Sale &c. ov Lottery Tickets. 221. For selling a Lottery Ticket : On the Statute of Massa- chusetts 0/ 1825, c. 184, § 1. The jurors &c., upon their oath present, that A. B., of &z,c., on at did unlawfully offer for sale, and did unlaw- fully sell to one C. D. a lottery ticket in a certain lottery not authorized by the laws of this Commonwealth, called the lottery ; which said lottery ticket was then and there taken and kept by the said C. D., so that the jurors aforesaid cannot set forth the tenor or substance thereof; against the peace of said LOTTERY. 163 Commonwealth, and contrary to the form of the statute in sucli case made and provided.^ 222. For exhibiting a Sign or other emhlemniicnl Representa- tion of a Lottery, Hfc. : On the IStatute of Massachuselts of Jrt28, c. 134, § 1.2 The jurors he, upon their oath present, that A. B., of Sec, on at did unlawfully exhibit a sign, symbol, and emblematical representation of a lottery, and of the drawing thereof, called the lottery, which said lottery was not au- thorized by the laws of this Connuonwealth, by [here describe the manner in which the sign, symbol, 4'C. was exhibited,'] and did thereby indicate where lottery tickets in said lottery might be purchased and received, and did thereby invite and intice the good citizens of this Commonvvealtli unlawfully to purchase and receive the said tickets in the aforesaid lottery ; against the peace of said Commonwealth, and contrary to tlie form of the statute in such case made and provided. * The same form may be adopted for all the other breaches of the statute, using the identical words of the statute in which each ofTence is described, as follows ; " did advertise, ami cause to be advertised for sale," certain lottery tickets in a certain lottery, called the lottery, which lottery was not au- thorized by the laws of this Coinmouwealth ; and the same form is to be adopt- ed for advertising '• parts of tickets." Also, for drawing a lottery, as follows, " did then and there draw, and aid and assist in drawing a certain loUciy, called &c., not authorized," &c. Also, for being " concerned in the management and conducting of said lotte- ry within this Commjtyi wealth." The penalties in this section of the statute may be recovered by indictment or information in the Supreme Judicial Court, by the attorney or solicitor gene- ral ; and by the county attorney in the Court of Common Pleas, or Municipal Court in the city of Boston. * By this section of the statute, its penalties may be recovered for the use of the Commonwealth, if prosecuted for by the attorney or solicitoi general. They may also be recovered by any other person ; in which latter case, half the penalty is given to the pioccies of Mayhem men- tioned in the section of the statute on which this precedent is drawn. All per- sons present aiding and abetiin may be charged as principals. M not present, but accessories bffore the (iict, they may be charged as such. See ante, p. 47, Accessory, Mayhem, and the authorities there cited, viz., 3 Chitt. 787; Com- monwealth v. JS'ewall et al. 7 Mass. R. 245. * Not necessary. See note (4) to precedent 233, post. i68 MISPRISION OF FELONr. MISPRISION OF FELONY. 230. Indictment for M'sprlsion or Concealment of Felony} The jurors &:c., upon their oalh present, tliat A. B., [here set out the offence Inj the original offender, in the vsual form, whether it be murder, larceny, or any other felony, and then pro- ceed as follows: ] and the jurors aloresaitl, upon their oath alore- said, do further present, that C. D., late of fcc, being a person of evil and unprincipled mind and disposition, and well knowing the premises, and also well knowing; the name and person and usual place of resort of the said A. B., but devising and intend- ing, as iiuirh as in him lav, to hinder and obstruct the doe course of law and jusiice, and to cause the said A. B. lo jio and escape for the said ofTence, so by him committed as aforesaid, afterwards, to wit, on at aforesaid, unlawfully, maliciously, and wilfully did conceal and keep secret, and nes^lcct to discover the said felony, so comunlied by the said A. B. as aforesaid, and the name, person, and usual [ilace of resort of A. B. did utterly refrain, forbear, and neglect to discover and make known j against the peace and dignity of the Commonwealth aforesaid. 231. Another Form for Misprision of Felony.^ The jurors he , upon their oath present, that Richard Crown- inshield, junior, late of Danvers, in the county of Essex, ma- chinist, on the sixth day of April now last past, with force and arms, at Salem, in the county aforesaid, in and upon one Joseph White, feloniously, wilfully, and of his malice aforeihoiighr, did make an as:>ault ; and that he the said Richard Crowninshield, junior, with a certain deadly weapon called a bludgeon, which he the said R. C. jr., in his right hand then and there had and held, the aforesaid Joseph White, in and upon the left temple of him the said Joseph White, then and there, feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound ; giving to the said Joseph White, then and there with the blud- geon aforesaid, in and upon the left temple of him the said Jo- ^ This precedent h from 2 Chitt. 232, and is said in a note there to have been settled by an able lawyer. It is the only precedent for a misprision of felony that I have been able to find in any English book of precedents of in- dictments. - Thii? form is from the original indictment against J. J. Knapp, junior, in- tended to be used in case he was not convicted as an accessory before the fact to J. F. Knapp. He was convicted and executed as such accessory. MISPRISION OF FELONY. 169 sepli White, one mortal wound, of the breadili of three inches, and of the length and depth of three inches ; of wiiich snid mor- tal uonnd the said JosP|)h White then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said R. C. jr. the aforesaid Joseph White, in manner and form aforesaid, feloniously, willully, and of his malice nfore- thonjiijht, did kill and murder ; aii;ainst the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. And ihe jurors aforesaid, upon their oath aforesaid, do further present, that Joseph Jenkins Knapp, junior, of Salem, &tc., well knowing tlie premises, and also well knowing the person, name, anil usual place of resort of the said R. C. jr., but devising and intending, as much as in him lay, to hinder and ohsiruct the i\i\e course of law and justice, and to cause the said R. C jr., to go and escape unpunished for the felony and murder so by him as aforesaid done and committed, aferwards, to wit, on the seventh day of April, in the year aforesaid, at Salem, in the county of Essex aforesaid, unlawfidly, wilfully, and maliciously did conceal and keep secret, and neglect to discover the said fel- ony and murder, so as aforesaid done and committed by the said R. C. jr. ; and the name, person, and usual place of resort of the said R. C. jr., unlawfully, wilfully, and maliciously did re- frain and forbear to make known and disclose ; against the peace and dignity of the Commonwealth aforesaid. 232. For a Misprision of an intended Felony. The jurors for said Commonwealth, upon their oath pre- sent, that one Richard Crowninshield, junior, late of Danvers, in the county of Essex aforesaid, machinist, now deceased, and one John Francis Knapp of Saieu), in the comity aforesaid, mariner, and one Joseph Jenkins Knapp, junior, of Wenham. in the county aforesaid, mariner,^ on the sixth day of April, in the year of our Lord one thousand eight himdred and thirty, at Salem afore- said, in the county aforesaid, wickedly, injuriously, and mali- ciously did conspire, combine, agree, intend, and determine,^ within a few days from the said second day of April in the year aforesaid, in and upon Joseph White, in the peace of the said ' The words " not having the fear of God before his eyes," &c. are omitted, beinf? unnecessary and superfluous. ' Hawk b. 2, c. 29, § 2S. The concealment of an intended felony is mis- pi ision of felony : and he who conceals a felony, which he knows is intended to be committed, is guilty of a misprision. 22 I7U MUKDEU. Comnionwealtli ilien and there being, feloniously, wilfully, and of their nialire aloielhought to make an assault, and Imn the said Joseph White t'.ieii and there feloniously, wilfully, and of their malice aforethought to kill and murder. And the jurors aforesaid, upon their oalh aforesaid, do lurther present, that George Crowninshield, q\' Danvers aforesaid, in the county aforesaid, machinist, being a person of a wicked and evil mind and disj)osiiiou, and well knowing the jjremises, and also well knowing the names, persons, and usual places of abode and resort of the said Rich.ard Crowninshield, junior, John Francis Knapp, and Josej)h Jenkins Knap[), junior, but devising and in- lendiiU, as much as in him lay, that the said Richard Crown- inshield, junior, John Francis Knapp, and the said Joseph Jen- kins Ivnnpp, junior, tlie intended felony and murder aforesaid, in manner and form aforesaid, should carry into full effect, without being prevented and brought to justice therefor, on the second day of April in the year aforesaid, and from the same second day of April in the year aforesaid, to the seventh day of April in the year aforesaid, at Danvers aforesaid, in the county aforesaid, unlawfully, wickedly, wilfully, maliciously, and contemptuously, did conceal, keep secret, and neglect to discover the felony and murder, so agreed, intended, and determined to be done and committed in manner aforesaid; and the names, persons, and usual places of resort of the said Richard Crowninshield, junior, John Francis Knapp, and of the said Joseph Jenkins Knapp, junior, did, during all the time aforesaid, utterly refrain and foriiear to disclose and make known ; in contempt of the laws of the land, in evil example to others in ]ike case to offend, and against the peace and dignity of the Commonwealth aforesaid.^ MURDER. 233. Fo7' Murder, by shooting with a Fistol.^ The jurors &c., upon their oaih present, that A. B., of &c., yeoman, (not having the fear of God before his eyes, but being * This indictmeat was drawn by the present Attorney General of Massachu- setts. 2 3 CWtt. 752. MURDER. 171 moved and seduced by the instigation of the Devil,) ^ on iv'itk force and arms, at^ in the county aforesaid, in and upon the body of one C. D., in the peace of said Commonwealth then and there bting^ feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said A. B., a certain pistol, of the value of two dollars,^ ihen and there charged with gun- powder and one leaden bullet, which said pistol, he the said A. B. in his riiilit hand then and there had and held, then an(J there feloniously, wilfully, and of liis malice aforediought, did discharge and shoot oft", to, against, and ujion the said C. D. ; and that the said A. B. with die leaden bullet aforesaid, out of the pistol aforesaid, iIkmi and there, by force of the guu-powder aforesaid, by the said A. B discharged and shot oft' as aforesaid, then and there feloniously, wilfully, and of his malice afortlhought, did strike, penetrate, and woimd the said C. D., in and upon the right side of the belly of him the said C. D., giving to him the said C. D. then and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said A. B., in and upon the ri[;ht side of the belly of him the said C. D., one mortal wound of the depdi of four inch(!s, and ol the breadth of half an inch ; of which said mortal wound, he the said C. D. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him the said C. D., in the m inner and by the means aforesaid, lelonious- ly, wilfully, and of his malice aloreihought, did kill and murder; ' Not necessary. See note (3) to the next precedent. * The venue must be laid where the death occurred. Where the wound is given in one county and the death happens in another, an indictment thereof way be found in the latter. See the case of Commonwealth v Parker et at. 2 Pick. 550, where this question was discussed and decided. ^ This allegation, though usual, is not necessaiy. 2 Chitt. 733, 734 ; 2 Hale, 186; Hawk. b. 2, c. 25, § 73 ; 1 Kuss. on Crimes, 677. The terms with force and arms are not necessary, being so fully implied in the description of the violence employed. Hawk. b. 2, c. 23, § 85 ; 3 Chitt. 751, note (A). 2 Hale, 187. * This allegation as to the value of the instrument is not necessary. 1 East, P. C. c. 5, § 8 ; Foster, 265, 266 ; who states, that a deodand is a forfeiture originally founded in an age of extreme ignorance. The omission to state the value of the deodand, will not vitiate the indictment as to the offence. Cro. C. C. 441, 442, (6th Ed.) note (c) ; 1 H. H. 419 ; 1 H. H. c. 32. 172 MURDER. against the peace of said Commonweallli, and contrary to the form of the statute in such case made and provided.^ 234. For Murder by stabbing with a Knife. '^ The jurors Sec, upon their oath present, that A. B., of &-c., laborer,'^ on the day of at in the county afore- said, in and upon one CD., in the peace of said Communivenlth then and there being,"^ feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said A. B., with a certain knife (of tiie value of ten cents,)^ (which he the said A. B. in his ri-lit hand then and there had and held,)^ the said C. D. in ancf upon the left side of tlie body between the ribs of him the said C. D., then and there feloniously, wilfully, and of bis malice aforethought, did strike and thrust, giving to "the said C. D. then and there,\vith the knife aforesaid, in and upon J If th(! party did not immediately die of the mortal wound, tlie indictment must conclude as follows, viz., set forth the charge precisely as in the forc- goin 4 Went. 55 ; 1 Leach, 434, 4.35, abstract of an indictment ; 3 Chitt. 1085 ; also 1083, another precedent, all of which are upon British statutes. This of- fence has been considered and treated as a conspiracy. 2 Russ. 1658 ; 2 East P. C. c. 20, § 6, p. 1010, and nearly allied to forgeiy. Renou&rd v. JVoble, 2 Johns. Cases, 293 ; Ingersol's Digest, 1-53 ; Gord. Digest, art. 3G26; act of the United States of March 3, 1925, § 16, 19. Is it not a cheat by false pretences, and indictable as such upon tlie statute for punishing them r 200 PERJURY AND SUBORNATION OF PERJURY. nuities ; ] the proprietors of which said annuities so as aforesaid established, then, to wit, on Sec, had in respect of said annui- ties, transferable shares in the capital stock of said annuities in proportion to their respective annuities j and that he the said A. B., on the said day of was the true and real proprietor of a share in the said«nnuhies ; and in respect there- of, then and there had the said transfering share before men- tioned, of and ill the said capital stock of the said annuities. And the jurors aforesaid, upon their oath aforesaid, do further present, lliat C. D., late of kc, well knowing the premises, but wickedly devising and intending the bank of ice. to defraud, af- terwards, to wit, on at aforesaid, lalsely, deceitfully, and fraudulently did personate the said A. B., the true and real proprietor of said share, of and in the said capital stock of said annuities ; and thereby did falsely and fraudulently transfer the said share ol said A. B. Sec, of and in the said capital stock of the said annuities, unto one E. F., as if he the said E. F. then was the true and lawful owner of the said share, and of and in the said capital stock of the said annuities ; against the peace and di2;niiv of the Commonwealth aforesaid. PERJURY A^D SUBORXATIOX OF PERJURY. 268. For Perjury in an .iffidavit to hold to Bail, in falsely sicearing to a Debt} The jurors &:c., upon their oath present, that A. B., of &:c., wickediv and maliciously contriving and intending one C. D. un- lawfully to aggrieve and oppress, and the said C. D. to great expense of his moneys, wickedly and maliciously to put and brins: ; and also to cause the sum of to be endorsed upon a process of the court of by virtu^ of which the said C. D. might be arrested to answer in the same court, at the suit of E. F., with intent that the said C. D. should be compelled to find bail for the aforesaid sum of on at came in his proper person before G. H., Esquire, then being one of the justices of said court ; and then aud there in due form ol law 1 2 Chitt. 323, 324; Cro. C. C. 53*, (6th Ed.) PERJCET. 201 was sworn, and did take his oath before the said G. H. Esquire, one of the justices of the said court as aforesaid, (he the said G. H. thee and there having sufficient and competent authoritj and power to administer an oath to the said C. D. in that behalf; ) and that the said C. D.. being so sworn as aforesaid, then and there, before the said G. H. Esq., upon his oath aforesaid, false- ly, wickedly, wilfully, and corruptly, did say, depose, swear, and make affidavit in writing, (among other tbinzs.) in substance apd to the effect following ; that is to say, \_here insert that part of the affidarit that isfahe;^ as by the same affidavit now filed in the court aforesaid, more fully appears ; whereas in truth and in fact, the said C. D. [^here negaiire the facts aJhged as false.^ And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, did commit wilful and corrupt perjur}-, against the peace of said Commonwealth, and contrary to the form of the statute io such case made and pro- vided. 2G9. For Perjury, by a f fitness, on the Trial of an Issue in the Supreme Judicial Courts The jurors k.c., upon their oath present, that heretofore, to wit, at the Supreme Judicial Court, begun and Lolden at B., within and for tlie count}- of S., before the Hon. I. P., Esq., then being Chief Justice" of the Supreme Judicial Court, on the Tuesday of in the year of our Lord one thousand eight hundred and twenty-two, in the said court, amongst the pleas of the said term, a certain issue was duly joined in the said court, between C. D. the plaintiff, and E. F. the defendant, in a certain action of trespass for assault and battery and false imprisonment ; which action before that time had been commenced between tie parties in that behalf, and was then pending in the Supreme Ju- dicial Court aforesaid ; and that afterwards, to wit, at the sitting of said court, before I. P., Esq., Chief Justice thereof, the same issue came on to be nied, and then and there was tried, in due form of law, by a jury of the said county of S., in that behalf duly irapannelled and swom between the said parties ; and that, upon the trial of the said issue, one G. H., late of in the county of laborer, did then and there, to wit, on the > 2 Siari. 521. • If any other of the jusiices of the SjpreiDe Ccan preside at the trial, his name iiiu?t be m«ened, and the oaxh al!?s?d to t-e administered by hiiD, in tbe same maDner as is here alleged as to the Chief Justice. 26 203 PERJURY. day of in the year aforesaid, at B. aforesaid, in the county of S. aforesaid, appear, and was produced as a wit- ness for and on bihalf of said C. D. the plaintift", and that the said G. H. was sworn, and did then and there take his corporal oath bel'ore the said 1. P., Cliief Justice as aforesaid, that the evidence which he should give to the said court and jury, touch- ing the matters in question on the said issue, should he the trull), the whole truth, and nothing but the truth ; the said I. P., Esq., Chief Justice as albresaid, then and there having suflicient and competent power and aiilhority to administer the said oath to the said G. H. in that behalf; and then and there, upon the trial of said issue, it became and was a material question, wheth- er the said E. F. had struck the said C. D., or had dragged him by the hair of his head ; and that thereupon the said G. H., being so produced and sworn as aforesaitl, and being then and there lawfully required to depose the truth in a proceeding in a course of justice, devising and wickedly intending to cause a verdict to pass against the said E. F. and for the said C D., on the trial of said issue, did then and there, before the said I. P., Escj., the Chief Justice as aforesaid, and the said jury sworn as aforesaid to try the said issue, falsely, maliciously, wilfully, and corruptly, and by his own proper act and consent, depose;, swear, and give evidence on the trial aforesaid, amongst other things, before the said I. P., Esq., Chief Justice as aforesaid, and to the jurors of the said jury, so sworn between the parties aforesaid, in substance as follows, \Jiere set forth the false testimony, with proper inuendocs ; ] whereas in truth and in fact, [Acre negative the false testimony^] And so the jurors aforesaid, upon their oath aforesaid, do say, that the said G. H., in manner and form aforesaid, and of his own most corrupt mind, did falsely, wicked- ly, wilfully, and corruptly commit wilful and corrupt perjury ; to the manifest perversion of public justice, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 270. For Perjury, in an Answer sworn to before a Master in Chancery} The jurors &;c., upon their oath present, that C. D.j of Sic, heretofore, to wit, on &;c., at &;c., did exhibit his bill of com- plaint, in writing, against one E. F. therein described, of said B., yeoman, in the Supreme Judicial Court of this Common- 1 2 Staik. 524; 2 Chitt. 411. PERJURT. 203 wealth, begun and held at W., within and for the county of W., on the Tuesday of in the year of Sic. ; and the said C. D., in and by his said bill of complaint, among other things, stated and alleged, in substance, and to the effect following, to wit, [here insert (hat part of the bill, concerning which the perju- ry ivas committed,] as in and by the said bill of complaint of the said C. D. remaining filed of record, in the said Supreme Judi- cial Court, amongst other things, more fully appears. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. F. die defendant, in the said bill of complaint, afterwards, that is to say, on the day of Sic, at said B., in the county of S., did come, in his own proper person, before G. H., Esq., then and there being one of the masters in chancery of the said Supreme Judicial Court, and then and there did exhibit and produce to the said G. H., Esq., the answer in writing of him the said E. F. to the said bill of complaint of the said C. D., entitled, " The answer of E. F., the defendant, to the bill of complaint of C. D., complainant ; " and the said E. F. was then and there sworn in due form of law, and took his cor- poral oath, touching and concerning the matters contained in his said answer by and before the said G. H., Esq., he the said G. H. so then being one of the masters in chancery in the said Supreme Judicial Court, and dicn and there having sufficient and competent power and authority to administer an oath to the said E. F. in that behalf; and that the said E. F., being so sworn as aforesaid, and being then and there lawfully required to declare and depose the truth in a proceeding in a course of justice, did, upon his oath aforesaid, concerning the matters contained in his said answer, before the said G. H. Esq., then as aforesaid being one of the masters in chancery of the said Supreme Judicial Court, then and there swear, that so much of the said answer of him the said E. F. as related to his own acts and deeds was true ; and that the said E. F., being so sworn as aforesaid, intending unjustly to aggrieve the said C. D., the said complainant as aforesaid, in his answer aforesaid, before the said G. H., Esq., he being then as aforesaid one of the masters in chancery in the said Supreme Judicial Court, (and having sufficient and com- petent authority as aforesaid,) falsely, knowingly, wilfully, and corruptly, by his own act and consent, upon his oath aforesaid, did answer, swear, and affirm, amongst other things, in substance as follows, that is to say, " and this defendant (meaning himself the said E. F.) says," [here insert verbatim that part of the an- swer, relative to and comprising the part in which the perjury is alleged to have been committed,'] as by the said answer of him 204 PERJURY. the said E. F. still remaining in the Snpreme Judicial Court aforesaid, at B. aforesaid, in the county of S. aforesaid, amongst other things will appear; whereas in truth and in fict, [then go on to negative the answer in the ivords of it, and in every part of it which^is alleged to be false] And so the jurors afores;iid, upon their oath aforesaid, do say, that the said E. F. falsely and wickedly, wilfully and corruptly, in manner and form afore- said, did commit wilful and corru|)t perjury, to the great damage of him the said C. D. ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 27 1 . For Perjury, in Answer to Interrogatories exhibited in Chancery} The jurors &;c., upon their oath present, that one C. D. heretofore, to wit, on did exhibit certain interrogatories, in writing, in the Supreme Judicial Court of this Commonwealth, begunand holden at 13., within and for the county of S., on the Tuesday of in the year of Stc, in a certain case before that time commenced by bill of complaint, and then pending and at issue in the same court, after certain pleadings and proceedings had been had therein ; in which said suit one E. F. was complainant, and the said C. D. was respondent, in order that the said interrogatories might be adujinistered, ac- cording to the course and practice of the said court in its chan- cery jurisdiction, to certain witnesses to be produced, sworn, and examined in the said cause, on the part and behalf of the said C. D., the said defendant therein, touching and concerning a certain written paper, purporting to contain an agreement for the lease of a certain house and premises therein mentioned, from the said E. F. to the said C. D. ; and that it became and was a material question in the said cause between the said par- ties, and to be deposed to by the said witnesses in answer to the said interrogatories, whether the said E. F. had declared that he would release the said C. D. from the said agreement, or had released him from the performance thereof; and in and by one of the interrogatories, exhibited as aforesaid, the said witnesses were interrogated as follows, that is to say, [here copy the inter- rogatories ivilh necessary inuendoes.'] And the jurors aforesaid, upon their oath aforesaid, do further present, that G. H. of in the county of yeoman, and one of the whnesses to 2 Chitt. 397-399 ; 4 Went. 292. PERJURY. 205 whom the interrogatories in the said cause were to be, and were accordingly, afterwards, to wit, on at administered, then and there came in his own proper person before the said Supreme Judicial Court, and having seen and understood the said interrogatories, so exhibited in the said court as afore- said, then and there, before 1. P., Esq , Chief Justice of the said Supreme Judicial Court, he the said 1. P., Esq., as Chief Justice as aforesaid, then and there having sufficient and com- petent power and authority to administer an oath to the said G, H. in that behalf, was duly sworn before the said court by the said I. P., Esq., Chief Justice as aforesaid ; and the said G. H. then and there, on his said oath before the said court, being then and there required to depose the truth in a proceeding in a course of justice, did swear, that he would make true answers to all such questions as should be asked iiim by the said court or their order, upon the interrogatories aforesaid, at the time of his examination, and that he would speak the truth, tiie whole truth, and notliing but the truth, Vv-ithout favor or affection to the said parties in the said cause ; and that the said G. H. afterwards, to wit, on the day of was duly examined in the said court upon the said interrogatories ; and that the said G. H. intending unjustly to aggrieve the said E. F., the cofn|)lainnnt aforesaid, did then and there, in his answer to the said fourth interrogatory, falsely, knowingly, wilfully, and corruptly, by his own act and consent, amongst other things, answer, swear, and affirm, in writing, as follows, that is to say, [Acre state the answer with necessary inuendoes ; ] as by the said answer of the said G. H. to the said fourth interrogatory remaining filed in the court aforesaid, will, amongst other things, fully appear ; where- as in truth and in fact, [then go on to negative the answer in all its parts, comprehending what is alleged to be false. ~\ And so the jurors aforesaid, upon their oath aforesaid, do say, that the said G. H., then and there, knowingly, wickedly, falsely, wil- fully, and corruptly, in manner and form aforesaid, did comn)it wilful and corrupt perjury ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 20G PERJURY. 272. For Perjury, by a Bankrupt, in his Examination before the Cominissionrrs in the Circuit Court of the United States.^ Tlie jurors Sic, upon tlieir oatli present, tlmt heretofore, to wit, on the day of in the year of our Lord one thoii'^and eit^lil Iiaiulred and three, a certain coinniission of bankruptcy, bearing date llw same day and year aforesaid, founded upon the act of the Coni^ress of the United States, en- tilled " An act to establish a uniform system of bankruptcy throughout the United States," was duly awarded and issued under the hand and seal of the Honorable Richard Peters, judge of the District Court of the United Stales for the Pennsylvania District, against C. D., usually residing in the cily of Philadel- phia, in the said Pennsylvania District, using and exercising the trade and business of merchandise and tin manufacturer, and directed to Mahlon Dickerson, Thomas Cumpston, and John Sargent, I^sqrs., (being three of ihe general commissioners of bankruptcy, duly appointed by the President of the said United States in the said Pennsylvania District,) and the said C. D. was thereupon, in due form of law, found, declared, and ad- judged to be a bankrupt ; and that the said C. D., being so as aforesaid found, declared, and adjudged to be a bankrupt, was in due form of law summoned and required to surrender him- self to the said commissioners in the said commission named, or the major part of them, at their office, [naming the place of it,] to be examined, and to make a full and true discovery and dis- closure of the estate and effects according to the directions of the act of Congress aforesaid, in such case made and provided. And the jurors aforesaid, upon their oaih aforesaid, do further present, that the said C. D. did surrender himself to the said commissioners, or a major part of then), and did sign and sub- scribe such surrender, and submit to be examined from time to time, by and before the said commissioners, or the major part of them, touching and concerning his estate and effects, according to the directions of the act of Congress aforesaid ; and that the said C. D., on the day of at the office of said commissioners, they the said commissioners being authorized to take the examination of the said C. D. as aforesaid, in order that he the said C. D. should make a full and true disclosure and discovery of his estate and effects, agreeably to the directions of 1 2 Chitt. 405. PERJURY. 207 the act of Congress aforesaid, and then and there, by and before said commissioners, was duly sworn and took his corporal oath to make a full and true discovery and disclosure of his estate and ef- fects aforesaid, (diey the said iMahlon Dickerson, Thomas Cump- ston, and John Sargent then and there having sufficient and com- petent authority to administer said oaih to the said C. D. in that behalf; ) and that the said C. D. being so sworn as aforesaid, not regarding tlie act of Congress aforesaid, nor the punishment therem provided for wilful and corrupt peijury, but fraudulently and wickedly devising to avoid and suppress a full and true dis- covery of his estate and effects, and to subvert the trudi, then and there, to wit, on the said day of in the year aforesaid, at the office of the commissioners aforesaid, in and upon his examination aforesaid, in answer to an interrogatory then and there duly put and administered to him the said C. D. in substance and to the following effect ; that is to say, [here insert the interrogatory verbatim, as put to the said C. !>.,] did falsely, corruptly, knowingly, and willully depose and swL^ir in substance and to the effect following, that is to say, [here insert the false answer; ] whereas in truth "and in fact, the said C. D. did not [here negative the ansicer in all that is false.'] And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, upon his oaih afore- said, by his own act and consent, and of 'his own wicked and corrupt mind, did commit wilful and corrupt peijurv ; a<^ainst the peace and dignity of the said United Slates, and conir.-Try to the lorm ol the act of the Congress of the United States in such case made and provided. 273. For Perjury, in a Complaint before^ Magistrate. The jurors Sec, upon their oath present, that heretofore, to wit, on the day of he, at &cc., one C. D. went before E. F., 'Esq., one of the justices of the peace in and for the said county of duly and legally authorized to perform and discharge the duties of said office, and then and there complained to the said justice in due form of law, that one G. H. [here insert the complaint,] which said complaint of the said C. D., on the said day of at said in the county aforesaid, came on to be heard, examined into, and tried, in due course of law, before the said E. F., Esq., justice of the peace as aforesaid ; and that thereupon, then 'and there the said G. H. having personally appeared before the said E. F., Esq., such justice as aforesaid, to answer the matters and 208 PERJURY. charges contained in said complaint ; and being then and there personally present, and having heard the same complaint read to him by the said E. F., such justice as aforesaid, he the said G. H. did then and there plead and allege, that he was not guilty of the said offence charged upon him in the said com- plaint; and thereupon the said E. F., as such justice as afore- said, proceeded to hear and determine the matter of said com- plaint in the presence of the said G. H. ; and that at and upon the said hearing of the said matter of said complaint by the said E. F., as such justice as aforesaid, I. J. of in the county of laborer, appeared as a witness in support of said com- plaint to and before the said E. F., Esq., and then and there as such witness, by and before the said E. F., Esq., such justice as aforesaid, was, in due form of law, sworn by the said E. F., Esq., to testify the truth, the whole truth, and nothing but the truth, relative to the complaint aforesaid, then and there in hear- ing before the said justice ; (he the said E. F., Esq., then and there having sufficient and competent authority to administer an oath to the said I. J. in that behalf;) and that the said I. J., being so sworn as aforesaid, and being then and there lawfully required to depose the truth in a proceeding in a course of jus- tice, wickedly devising and intending to subvert the truth, and maliciously and wrongfully intending and devising to cause the said G. H. to be convicted of the offence charged and alleged against him in said complaint, then and there, at and upon the hearing and trial of the said complaint, by and before the said E. F., Esq., as such justice as aforesaid, did, as such witness as aforesaid, on his oath aforesaid, falsely, maliciously, wickedly, wilfully, and corruptly say, depose, swear, and give evidence to and before the said E. F., Esq., so being such justice, and as such justice so hearing the matter upon the complaint aforesaid, amongst other things, in substance and to the effect following, that is to say, [here insert the false testimony in the words in which it was given ; ] whereas, in truth and in fact, [here go on to negative the testimony in the words in ivhich it was given.'] And so the jurors aforesaid, upon their oath aforesaid, do say, that the said I. J , then and there, by his own act and consent, and in manner and form aforesaid, did knowingly, falsely, wick- edly, wilfullly, and corruptly commit wilful and corrupt perjury ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. PERJURY. 209' 274. For Perjury, in filiating a Child, before a Justice of the Peace} The jurors &c., upon their oath present, that C. D., of said B., single woman, on the day of at B. aforesaid, in the county aforesaid, was pregnant with child, and that the said child was likely to be born a bastard, and to be chargeable to the said town of B., in the county aforesaid ; and that the said C. D., so being pregnant with child as aforesaid, wickedly and maliciously intending and contriving, not only to deprive one E. F. of his good name, fame, and'reputaUon, and to put the said E. F. to great trouble and expense, but also falsely to charge the said E. F. with begetting her with child, and being the father of said child, of which she was then pregnant, on the day of at &c., aforesaid, in her own proper per- son, went before G. H., Esq., then being one of the justices of the peace in and for the county aforesaid, duly and legally au- thorized and empowered to discharge and perform the duties of said office, and having sufficient and competent power and au- thority to administer an oath, and take the examination of her the said C. D. hereinafter mentioned, then and there the said _C. p. was duly sworn before the said G. H., Esq., being such justice as aforesaid, and the said C. D. being then and there lawfully required to depose the truth in a proceeding in a course of justice, did then and there, upon her oath aforesaid, before the said G. H., Esq., as aforesaid, wilfully, and of her own free will and accord, falsely, wickedly, and corruptly, and with a design to burden the said E. F. with the maintenance of said bastard child, say, depose, swear, and give in her examinadon, in writing, and under oath, as follows, to wit ; " the volutary ex- amination of C. D. of &tc., who saith," [here insert the examina- tion verbatim ; ] whereas, in truth and in fact, the said E. F. was not, nor is the father of said child, with which the said C. D. was then pregnant, nor of any other child of the body of the said C. D. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, _ wickedly, wilfully, falsely, and corruptly did commit wilful perjury ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and pro- vided. ' 2 Chitt. 438 ; 4 Went. 232 ; Stark. 515, note {a.) 27 210 PERJURY. 275. For Perjury^ in giving Evidence on the Trial of an Issue on an Indictment for Perjury.^ The jurors he, upon their oath present, that at the Su- preme judicial Court of the said Commonwealth, begun and holdcn at B., within and for the county of S., on the first Tue^^day of November, in the year of our Lord one thousand eight hundred and twenty, before Isaac Parker, Esq., then chief justice of the said court, a certain issue, in due manner joined in the said court, between the Commonwealth aforesaid and one C. D., upon a certain indictment then depending against the said C. D. for wilful and corrupt perjury, came on to be tried, and was then and there, in due form of law, tried, by a certain jury of the country, in due manner returned, impannelledy and sworn for that purpose ; and that at and upon the trial of said issue, E. F., late of B., in the county aforesaid, laborer, did then and there appear, and was produced as a witness for and on behalf of the said Commonwealth, and against the said C. D., upon the trial of the said issue, and the said E. F. was then and there duly sworn, as such witness as aforesaid, before the said Isaac Parker, Esq., then chief justice as aforesaid, that the evidence which he should give to the court and jury, between the said Commonwealth and the said C. D., the defendant, on the issue then depending, should be the truth, the whole truth, and nothing but the truth, (the said Isaac Parker, Esq., as the said Chief Justice of said court, then and there having sufficient and competent power and authority to administer the said oath to the said E. F. in that behalf;) and the said E. F., being so sworn as aforesaid, it then and there, upon the trial of the said issue, became and was a material inqury, whether [Acre state the several material questions.J^ And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. F., ma- liciously and corruptly intending to injure and aggrieve the said C. D., and to cause and procure him to be convicted of the wil- ful and corrupt perjury, whereof he then stood indicted as afore- said, and to subject him to the pains, penalties, and punishments of the laws of this Commonwealth inflicted on persons convicted of that crime, and being then and there lawfully required to de- pose the truth in a proceeding in a course of justice, then and there, on the trial aforesaid of the said issue, upon his oath aforesaid, before the said Isaac Parker, Esq., Chief Justice as 1 2 Chitt. 452, 453, note (n); 4 Went. 275, and 6 Went. 396. PERJURY. 211' aforesaid, having such competent authority to administer such oath as aforesaid, falsely, wickedly, knowingly, wilfully, and corruptly did say, depose, swear, and give evidence, to the said court and jury, amongst other things, in substance and to the effect following, that is to say, \_here set out the emdence ; ] whereas, in truth and in fact, the said C. D. did not [here assign the perjury, by negativing the false evidence given by the withess.'] And so tlie jurors aforesaid, upon their oath aforesaid, do say, that the said E. F. falsely, wickedly, wilfully, and cor- ruptly, by his own voluntary ^ct and consent, and of his own wicked mind and disposition, did then and there, in manner and form aforesaid, commit wilful and corrupt perjury ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 276. For Perjury, on a Trial in the Supreme Judicial Court in a Civil Action. The jurors he, upon their oath present, that iieretofore, to wit, at the Supreme Judicial Court, begun and holden at B., within and for the said county of S., on the Tuesday of in the year of our Lord one thousand eight hundred and twenty before I. P., then being Chief Justice of the same court, a certain issue duly joined in the said court, between one C. D. and one E. F., in a certain plea of trespass, came on to be tried in due form of law, and was then and there tried by a certain jury of the country, duly summoned, impannelled, and sworn between the parties aforesaid ; and that, upon the said trial, G. H. of said B., yeoman, appeared as a witness on the behalf of the said E. F., the defendant, and was duly sworn, and took his oath before the said I. P., Chief Justice as afore- said, to speak the truth, the whole truth, and nothing but the truth, touching the matters in issue on the said trial ; he the said I. P., Chief Justice as aforesaid, having sufficient and competent power and authority to administer the said oath to the said G. H. in that behalf; and that at and upon the said trial, certain questions became and were material, in substance as follows, that is to say, [here state the material questions ; ] and that the said E. F., being so sworn as aforesaid, and being then and there lawfully required to depose the truth in a proceeding in a course of jus- tice, at and upon the said trial at the court aforesaid, then and there falsely, wilfully, voluntarily, and corruptly did say, depose, and swear, among other things, in substance and to the effect following, that is to say, [here state the evidence with proper inu- 212 PERJURY. endoes ; ] whereas, in truth and in fact, [here assign the perjury by negativing the evidence.'] And so the jurors aforesaid, upon their oath aforesaid, do say, that the said G. H., in manner and form aforesaid, did commit wilful and corrupt perjury ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 277. For Perjury, on the Trial of an Issue in an Action of As- sumpsit.^ Tlie jurors Sic, upon their oath present, that at the Supreme Judicial Court of said Commonweahh, begun and holden at within and for the county of on the Tuesday of in the year of our Lord he. before I. P., Esq., then being the Chief Justice of the said court, a certain issue duly joined in the said court, between one C. D. and one E. F., in a certain plea of the case upon promises, alleged by the said C. D. to have been made by him the said E. F. and not performed, in which the said C. D. was plaintiff, and the said E. F. was de- fendant, came on to be tried in due form and course of law, and was then and there tried by a certain jury of the country in that behalf, duly summoned, impannelied, and sworn between the par- ties aforesaid ; and that upon the trial of the said issue so joined between the parties aforesaid, G. H., late of in the county of yeoman, appeared as a witness for and on behalf of the said C. D., the plaintiff, in the plea abovementioned, and was duly sworn and took his oath before the said I. P., Chief Justice as aforesaid of the said Supreme Judicial Court, to speak the truth, the whole truth, and nothing but the truth, touching and concerning the matters in question in the said issue, he the said I. P. being then Chief Justice as aforesaid, then and there having competent authority to administer the said oath to the said G. H. in that behalf; and that upon the trial of the said issue, so joined between the parties aforesaid, certain questions then and there became and were material, that is to say, [here state the material questions;] and the said G. H., being so sworn as aforesaid, and then and there being lawfully re- quired to depose the truth in a proceeding in a course of jus- tice, falsely, wickedly, wilfully, corrupdy, and maliciously con- triving and intending, as much as in him lay, to prevent justice and pervert the due course of law, and to cause a verdict to pass against the said E. F. on the trial of the said issue, and thereby Stark. 521. PERJURY. 213 to subject him to the payment of sundry heavy costs, charges, and expenses, then and there falsely, wickedly, wilfully, and corruptly, and by his own act and consent, did say, depose, swear, and give evidence, among other things, on the trial afore- said to and before the said jurors, so sworn to try the said issue as aforesaid, and to and before the Chief Justice aforesaid, in substance and to the effect following, that is to say, [here set out the false testimony with proper inuendoes ;'\ whereas, in truth and in fact, [here assign the jyerjury by negativing the false tes- timony.^ And so the jurors aforesaid, upon their oath aforesaid, do say, that the said G. H. then and there falsely, wickedly, wilfully, and corruptly, and by his own voluntary act, and of his own wicked mind and disposition, in manner and form aforesaid, did commit wilful and corrupt perjury ; in evil example to others to offend in like case, against the peace of the said Common- wealth, and contrary to the form of the statute in such case made and provided. 278. For Perjury, in taking the Poor Debtors^ Oath, 8fc} The jurors &:c., upon their oath present, that by the conside- ration of the justices of the Circuit Court of Common Pleas for the ]Middle Circuit, holden at Boston, within and for the county of Suffolk, on the last Tuesday of December, in the year of our Lord one thousand eight hundred and twelve, one S. C. A. and one J. B. recovered judgment against J. T. of M., in the county of VV. aforesaid, trader, for the sum of four hundred and fifty- seven dollars and seven cents, damage, and twenty-five dollars and fifteen cents costs of suit; and that afterwards, to wit, on the fifteenth day of January, in the year of our Lord one thou- sand eight hundred and thirteen, execution of said judgment then remaining to be done, they the said S. C. A. and J. B. pur- chased out their writ of execution from the clerk's office of the said Circuit Court of Common Pleas for the Middle Circuit, directed to the sheriff of the said county of W. or his deputy, and commanding them or either of them, that of the goods, chat- tels, or lands of the said J. T., within their precinct, they cause to be paid and satisfied unto the said S. C. A. and the said J. B., at the value thereof in money, the aforesaid sums, being four hundred and eighty-two dollars and twenty-two cents, in the whole, with twenty-five cents more for that writ, and thereof also to satisfy himself for his own fees ; and for want of goods, chat- ' 2 Mass. Laws, Stat. 1816, c. 55. 214 PERJURY. tels, or lands, of the said J. T., to be by said T. shown unto him to the acceptance of the said S. C. A. and J. B., or found within his said precinct, to satisfy the sums aforesaid, tlie said sheriff or iiis deputy was therein commanded to take the body of the said J. T., and him commit to the gaol in W., in the said county of W., and detain in his custody within the snid gaol, until he pay the full sums abovementioncd, with his the said sheriff's or his deputy's fees, or that he be discharged by the said S. C. A. and J. B., the creditors, or otherwise by order of law; and the said sheriff or his deputy was therein commanded to make return of said writ, with his doings therein, into the said Circuit Court of Common Pleas, to be holden at B., witl)in the county of S. aforesaid, on the fourth Tuesday of March then next; and the said S. C. A. and J. B. then and there delivered the same writ of execution to one A. B., then and ever since one of the deputy sheriffs for the said county of W., to be by him served in due course of law ; and that the said A. B., dep- uty sheriff as aforesaid, afterwards, to wit, on the eighteenth day of JNIarch, in the year of our Lord one thousand eight hundred and thirteen, and before the said writ of execution was return- able, for want of goods, chattels, or lands of the said J. T., found within his precinct, or shown to him by said J. T., arrested the body of the said J. T., and him committed to the Common- wealth's gaol in W., in the county of W. aforesaid, as by the said writ of execution he was commanded. And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the eighteenth day of March, in the year of our Lord one thousand eight hundred and eighteen, he the said J. T. then standing committed as aforesaid, by force of the writ of execution aforesaid, then and there did complain, by a writing under his hand, to N. H., under keeper of the said gaol in W., in the county of W. aforesaid, that he had not estate sufficient to support himself in prison, and requested the said N. H. to make application to some justice of the peace in said county of W. for a notification to his said creditors, at whose suit he was committed, signifying his desire to take the benefit of the law provided in behalf of poor prisoners ; and thereupon the said N. H., the under keeper of the gaol aforesaid, did then and there apply in writing to A. L., Esq., one of the justices of the peace within and for the said county of W., therein signifying the complaint aforesaid of the said J. T. ; and thereupon, on the said eighteenth day of March, in the year last aforesaid, the said A. L. made out a notification in writing, under his hand and seal, directed to the said S. C. A. and J. B., in which he signi- PERJURY. 215 fied to them, the creditors aforesaid, the desire of the said J. T. to take die privilege and benefit allowed in and by " an act entitled an act for the relief of poor prisoners committed by execution for debt," and therein notified them of the time and place appointed for the intended caption of the oath prescribed by the statute in such case made and provided ; which nofifica- tion was then and there, on the day and year last aforesaid, duly served on the said S. C. A. and said J. B., thirty days before the time appointed for the caption of the oath aforesaid. And the jurors aforesaid, upon their oath aforesaid, do furdier pre- sent, that afterwards, to wit, on the twenty-second day of April, in the year last aforesaid, at the gaol aforesaid, in the county of W. aforesaid, (being the time and place appointed in said notifi- cation for the caption of the oath aforesaid,) A. L. and W. C. W., Esqrs., two of the justices of the peace within and for the said county of W., each of whom was then of the quorum, and disinterested and not related either to the said creditors or the debtor, did assemble and call before them the said J. T. for the purpose of hearing and examining the said J. T,, and administering to him the oath aforesaid ; and that he the said J. T. did then and there appear before the said two last mentioned justices, (they the same two justices of the quorum then and there having sufficient and competent power and au- thority to administer the said oath to the said J. T. in that behalf,) and that he the said J. T., wickedly intending by color and pretext of the acts and statutes of the said Commonwealth to deceive and defraud the said S. C. A. and J. B., his credi- tors aforesaid, of their just debt aforesaid, then and there, to wit, on the twenty-second day of April, in the year of our Lord one thousand eight hundred and eighteen, at VV. aforesaid, in the county of W. aforesaid, at the gaol aforesaid, before the two justices of the quorum aforesaid, falsely, wilfully, maliciously, and corruptly did swear, depose, and declare, on oath, in the words following, to wit, [liere insert the oath;Y and that after the taking of the said oath, the two justices of the quorum afore- said made their certificate thereof to the said under keeper of the gaol aforesaid, who thereupon then and there discharged the said J. T. from the gaol aforesaid to go at large ; whereas, in truth and in fact, after the commencement of the said suit against the said J. T. by the said S. C. A. and J. B., and before the taking of the said oath, and during the confinement of the said J. T. on the execution aforesaid, to wit, on the sevei>teenth day ' See 2 Mass. Laws, Stat. 1816, c. 55, for the form of the oath. 216 PERJURY. of April, in the year of our Lord one thousand eight hundred and thirteen, he the said J. T. conveyed away a large and val- uable real estate, lying in M., in the county aforesaid, consisting often acres and one hundred and thirteen rods of land, to one A. T., his brother, with intent to secure the same to,- and in trust for his own use, and to defraud his just creditors thereof; and which said estate and the full value thereof, after his taking the oath aforesaid, he received to his own use, and that he the said J. T., at the time of his taking the oath aforesaid, had a number of outstanding good and bond Jide debts due to him on notes and accounts, and other personal estate in his possession and control, and which, after his taking the oath aforesaid, he collected and ecovered to his own use and benefit, to the amount of fourrhundred dollars. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. T., in man- ner and form aforesaid, on the said twenty-second day of April, in the year of our Lord one thousand eight hundred and eighteen, at W. aforesaid, in the county aforesaid, on his oath aforesaid, before the said two justices of the quorum aforesaid, by his own act and consent, and of his own wicked and corrupt mind and disposition, in manner and form aforesaid, falsely, wickedly, wilfully, and corruptly, did commit wilful and corrupt perjury ; in evil and pernicious example to others in like case to offend, against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided.^ > This precedent is taken fiom an indictment drawn by the present Attorney General of Massachusetts. SUBORNATION OF PERJURY. 217 FORMS OF INDICTMENTS FOR SUBORNATION OF PERJURY. 279. For Subornation of Perjury, ly procuring a Woman to swear a Bastard Child upon an innocent Man} The jurors &c., upon their oath present, that one C. D., of &tc., single woman, on the clay of now last past, at B. aforesaid, was pregnant with child, and that said child was likely to be born a bastard, and be ciiargeable to the said town of B. in the said county of S. ; and that on the said day of aforesaid, at B aforesaid, E. F., of B., in the county of S., yeoman, being a person of an evil mind and disposition, and wickedly and maliciously contriving and intending to deprive one G. H., not only of his good name, fame, and reputation, and to put him to great trouble and expense, but also to cause the said G. H. to be falsely charged with begetting the said C. D. with child, and with being the father of said child wiih which the said C. D. was then and there pregnant as aforesaid, did falsely, wickedly, knowingly, wilfully, and corruptly solicit, suborn, and procure the said C. D. to go before I. J., Esq., ti en and still one of the justices of the peace in and for the said county of S., duly and legally empowered and qualified to discharge and perform the duties of said office, and make oath that the said G. H. was the father of the said chih!, with which she was then pregnant. And the jurors aforesaid, upon their oath aforesaid, do further present, that in consequence, and by the means, encouragement, and effects of the said wicked and cor- rupt subornation and procurement of the said E. F., she the said C. D. afterwards, to wit, on the same day of in the year aforesaid, at said B., in the county aforesaid, did go in her proper person before the said I. J., Esq., being such justice as aforesaid, and having then and there sufficient and competent power and authority to administer an oath and take the examina- tion of the said C. D. hereinafter mentioned ; and the said C. D. was then and there sworn before the said I. J., Esq.; and the said C. D. being so sworn as aforesaid, and being then and there lawfully required to depose the truth in a proceeding in a course of ju: tice, by the means and in consequence of the said wicked solicitation, subornation, and procurement of the said E. F., did then and there, upon her oath' aforesaid, 1 See similar precedents 2 Chitt. 476; 2 Stark. 529; do. C. A. 213. 28 218 SUBORNATION OF PERJURY. before the said I. J., being such justice as aforesaid, falsely, wickedly, wilfully, and corruptly say, depose, and swear, and give in her examination, in wiiling, and under oath, as follows, [Acre copy and insert the examination verbatim, with proper inuendoes;'] whereas, in truth and in fact, the said E. F., at the time of soliciting, suborning, and procuring the said C D. corru()tly and falsely to swear as aforesaid, well knew that the said G. H. was not the father of the said child, with which she was then pregnant as aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said E. F., then and there, in manner and form aforesaid, did falsely, knowingly, wilfully, and corruptly commit subornation of perjury, by wil- fully, falsely, knowingly, and corruptly suborning and procuring the said C. D. to commit wilful and corrupt perjury, in and by her oath aforesaid, in manner and form aforesaid ; against the peace and dignity of the said Commonwealth, and contrary to the form of the statute in such case made and provided. 280. For endeavouring to suborn a Person to give Evidence on the Trial of an Issue in the Supreme Judicial Court} The jurors &£c., upon their oath present, that at the Supreme Judicial' Court, begun and holden at B., within and for the county of S., on the Tuesday of in the year of our Lord one thousand eight hundred and two, before Isaac Parker, Esq., then the Cliief Justice of the said court, a certain issue duly joined in the said court between one C. D. and one E. F. in a certain plea of trespass, wherein it was alleged, in substance, that the said E. F. had, with force and arms, assaulted, beat, bruised, wounded, and ill-treated the said C. D., in which the said C. D. was plaiutitT, and the said E. F. was defendant, came on to be tried in due form of law, and was then and there tried by a certain jury of the country in that behalf duly sum- moned, taken, impannelled, and sworn between the parties afore- said ; and that before the trial of the said issue, and during the time the same was pending, to wit, on the day of at B. aforesaid, in the county aforesaid, G. H. of in the county aforesaid, grocer, wickedly contriving and intending, as much as in him lay, to prevent justice and pervert the due course of law, and intending unjustly to aggrieve the said E. F., the de- 1 Cro. C. C. 5S7, (6th Ed.) This precedent is drawn on the statute of Massachusetts of 1812, c. 143, but it concludes also at common law. See also 2 Chitt. 482, which cites the above precedent from Cro. C. C. 587, (6th Ed.) SUBORNATION OF PERJURY. 219 fendant above named, and wickedly to cause and procure the said E. F. to be found guilty of the premises alleged against him in the said issue, and thereby to subject him to the payment of large sums of money for the payment of damages and costs to be recovered against him in the suit aforesaid, then and there, on the same day and year last aforesaid, at B. aforesaid, in the said county of S., did unlawfully and wickedly solicit, instigate, and, as much as in him lay, wilfully and corruptly endeavour to per- suade and procure one I. J. to be and appear as a witness on the part and behalf of the said C. D., the plaintiff aforesaid, at the trial of said issue, so as aforesaid joined, and, upon the same trial, to commit wilful and corrupt perjury, by falsely swearing and giving in evidence to and before the jurors of the jury afore- said, so sworn between the parties aforesaid to try the said issue, in substance and to the effect following, that is to say, [/tez-e in- sert the evidence which the party was instigated to give, ivith proper inuendoes if necessary ; ] whereas, in truth and in fiict, [here assign the perjury intended to be committed, by negativing the false evidence intended to be given ; ] in inanifest subversion of justice, against the peace and dignity of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided. 281. For persuading a Witness not to give Evidence against a Person charged with an Offence before the Grand Jury} The jurors &,c., upon their oath present, that heretofore, to wit, on Sic, A. B., of Stc, \herc state the authority of the gov- ernment by which the attendance of the witness was compelled, whether a summons or a recognisance.^ And the jurors afore- said, upon their oath aforesaid, do further present, that at the time of taking said recognisance, [or the service of said sum- mons, as the case may ie,] and from then until, and upon the said day of therein mentioned, the evidence of the said A. B. was material and necessary to have been given in before the said grand jury, on the subject-matter then to be heard and considered by them ; which said grand jury were then and there duly and legally convened, on that behalf, and vvere legally authorized and had competent authority to consider and decide upon the subject-matter then and there, by them to ' This is an offence at common law, for which see Hawk. b. 1, c. 21, § 15. The meie attempt to stifle evidence, though it does not succeed, is crimiaal. 6 East, 464 ; 2 East, 5, 21, 22 ; 2 Str. 904 ; 2 Leach, 925. 220 SUBORNATION OF PERJURY. be heard ; and that at the said term of said court, [here describe the court,^ a bill of indictment was prepared against the said A. B. for the offence aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D., of &:c., con- triving and intending the due course of jusiice to obstruct and impe(]e, on at unhnvfully and unjustly dissuaded, hindered, and prevented the said A. B. from appearing before the justices of said court, and before the said grand jury, to give evidence before the said grand jury on the bill of indictment preferred as aforesaid against the said and that in con- sequence thereof the said A. B. did not appear and give evi- dence according to his duty in that respect ; against the peace and dignity of the Commonwealth aforesaid. 282. For Subornation of Perjury, on a Trial for Robbery, iclierc the Prisoner set up an Alibi.^ The jurors &,c., upon their oath present, that at the Supreme Judicial Court of said Commonwealth, holden at on before the justices of said Supreme Judicial Court, a certain in- dictment was presented and returned in due course of law by the grand jury for the said county against one A. B., in the form fol- lowing, to wit, [here insert the indictment ; ] and that afterwards such proceedings were had, as that the said A. B. was duly and legally arrested and brought into said court, and being duly and legally arraigned upon said indictment, pleaded to the same that he was not guilty thereof; upon which issue, such proceed- ings were had, that afterwards, to wit, at the said Supreme Ju- dicial Court, so held as aforesaid, a trial was had and held by the jury aforesaid, between the said Commonwealth and the said A. B. upon the said indictment ; upon which said trial, evidence was given on behalf of said Commonwealth against the said A. B. that the felony and robbery, in the said indictment speci- fied and charged, was committed by the said A. B., on at And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D., late of being a person of an evil and wicked mind and disposition, and devising and intending as much as in him lay, to pervert the due course of law and jus- tice, and to cause and procure the said A. B. to be entirely acquitted of the said felony and robbery charged on him by the said indictment, and to escape unpunished for the same, did, > 2 Chitt. 478, 479. PIRACY. 221 before the said trial, to wit, on at unlawfully and wickedly solicit, incite, and endeavour to persuade one E. F. to appear as a witness on the said trial, so as aforesaid had, for and on behalf of the said A. B., and on the said trial, falsely to depose, say, and give evidence upon bis oath to the court and jury aforesaid, that the said A. B. [Aere insert the evidence given by the said E. F. to prove the alibi ; ] whereas in truth and in fact, the said E. F. did not [Aere negative the testimony given by the said E. F. ; ] and whereas in trudi and in fact, at the time when the said C. D. did so solicit, invite, and endeavour to persuade the said E. F. to give such evidence upon his oath as aforesaid, he the said C. D. well knew that the said E. F. would not give his evidence according to the truth, and that the same evidence so to be given, was false, feigned, and altogether fictitious ; to the evil example to others in like case to offend, against the peace and dignity of the said Commonwealth, and contrary to the form of the statute in such case made and provided. PIRACY. 283. Against several, for piratically attacking, talcing, and car- rying away a Ship, with Goods ^-c. on board} The jurors Sic, upon their oath present, that A. B., late of said B., mariner, [and eight others, ivith the like additions,^ on upon the high sea, out of the jurisdiction of any particu- lar State, with force and arms, did piratically and feloniously set upon, board, break, and enter a certain merchant ship called the Governor Strong, then being a ship belonging exclusively to cer- tain citizens of the United States, to the jurors aforesaid as yet unknown ; and then and there piratically and feloniously did assault certain mariners, whose names to the jurors aforesaid are also as yet unknown, in the same ship then and there being ; and did then and there upon the high sea aforesaid, out of the ' 3 Chitt. 1130, 1131; Cro. C. A. 316; 2 Stark. 455. The indictment from which this precedent was taken was used against Captain Kidd and others. 5 State Trials, 287 ; 3 Chitt. 1131, note (&.) See Statute of United States, April 30, 1819, § 8. Gordon's Dig. Art. 364, p. 716, note (6.) 222 I'lUACY. jurisdiction of any particular State, piratically and feloniously put the said mariners in great fear and bodily danger of their lives ; and the said merchant ship and the tackle, and apparel of the same, of the value of three thousand dollars, together with sev- enty chests of opium, of the value of five thousand dollars, then and there being in and on board the same ship, of the goods and chattels of certain citizens of the said United States to the said jurors as yet unknown ; and then and there upon the high sea aforesaid, out of the jurisdiction of any particular State, being under the care and custody, and in the possession of the mariners aforesaid, they the said A. B., [and the others, naming them,'\ from the care, custody, and possession of the mariners afore- said, then and there, to wit, upon the higii sea aforesaid, out of the jurisdiction of any particular State, piratically and feloniously, and by force and violence, and against the will of the mariners aforesaid, did steal, take, rob, and run away with ; against the peace of said United States, and contrary to the form of the statute thereof in such case made and provided. And the jurors afoJesaid, upon their oath aforesaid, do further present, that the said A. B., [and the others, naming them,'] the offenders aforesaid, were first brought into B. aforesaid, in the said district of Massachusetts, after the commission of said offence ; and that the said district of Massachusetts is the district into which they were first brought. 284. For piratically running away with a Vessel by the Mari- ners of the same Vessel} The jurors Sic, upon their oath present, that A. B., [and ten others, naming them, and giving to each his proper addition,] on the day of they the said A. B., [and the others,] then being mariners of, in, and on board a certain vessel of the said United States, called the Plattsburg, belonging and apper- taining exclusively to citizens of the United States aforesaid, (whose names are to the jurors aforesaid as yet unknown,) with force and arms, and upon the high sea, out of the jurisdiction of any particular State, in and on board said vessel, whereof one W. H. was then and there master and commander ; the same vessel, and the tackle, apparel, and furniture thereof, oi the value of ten thousand dollars ; and certain goods and merchan- dise, to wit, [here state the articles and allege the value of ' See a similar precedent in 3 Chitt. 1132, for running away with ship's boat. The form is the same, except in the description of the property. PIRACY. 223 each,'] all being then and there the goods, chattels, and property of certain citizens of the United States, (to the jurors as yet unknown,) then and there being laden on board said vessel called the Plattsburg ; then and tliere upon the high sea aforesaid, out of the jurisdiction of any particular State, did betray the trust reposed in tiiem as mariners of said ship, and then and there turn pirates ; and the same ship, with force and arms, piratically and feloniously did steal, take, and run away wiih ; they the said A. B., [(itid the others,] being then and there mariners of the said vessel, and in and on board thereof, upon the high sea aforesaid, out of the jurisdiction of any particular State ; against the peace of the said United States, and contrary to the form of the statute of the Con2;ress of said United States in such case made and provided. [^Then go on and allege that the offenders were first brought into, or first arrested in this district of Massachu- setts, as in the conclusion of the next preceding precedent.]^ 285. For Piracy, by causing a Revolt in a Merchant ShipJ^ The jurors he, upon their oath present, that A. B., of &c., (and ten others whose names are to the jurors aforesaid, as yet unknown,) on upon the high sea, and out of the jurisdic- tion of any particular State, being mariners, in and on board a certain merchant ship called the Dove, the said ship Dove then being a ship belonging exclusively to certain citizens of the said United States, whose names are to the jurors aforesaid as yet unknown, whereof one C. D., a citizen of the said United States was then master, piratically and feloniously did endeav- our to make, and did make a revolt in the same ship, the said C. D. then and there being master of the same ship as aforesaid ; against the peace of the said United States, and contrary to the form of tlie statute thereof in such case made and provided. * The two foregoing precedents may be adapted to all the other cases con- templated in the statute of the United States, using in the forms, the precise words of the statute applicable to the case. 2 3 Chitt. 11.31 ; Cro. C. C. 591, (6th Ed.) ; Cro. C. A. 316. 224 PIRACY. 28G. For piratically taking and rvnning away with a Ship, Tackle,^ Cargo, ^-c} The jurors &,c., upon their oath present, that A. B., of&c., C I)., of &.C., and E. F., of Sic, on upon the high sea, and out of the jurisdiction of any particular State, then being mariners,^ in and on board a certain merchant shi[), called the Dove, whereof one G. H., a citizen of the said United States, was then master ; the said ship Dove then being a ship belong- ing to certain citizens of tlie United Stales, to the jurors afore- said as yet unknown, upon the high sea aforesaid, and out of the jurisdiction of any particular State, did betray the trust reposed in them, as mariners of the said ship, and then and there upon the high sea aforesaid, out of the jurisdiction of any particular State, did turn pirates, and the same ship, and the a|)parel and tackle thereof, of the value of and one hunched hogs- heads of sugar of the value of \Jierc state all the goods and property, piratically taken and, carried away, with the value of each article,]^ of the goods and chattels of certain citizens of the said United States, to the jurors aforesaid as yet unknown, then and there being in the same ship, under the care and custody, and in the possession of the said G. H., as master of the said ship, then and there, upon tlie high sea aforesaid, out of tiie juris- diction of any particular State, from the care, custody, and pos- session of the said G. H., piratically and feloniously did steal, take, and run away with, they the said A. B., C. D., and E. F., then and there being mariners of the said ship, and in and on board the said ship on the liigh sea as aforesaid ; against the peace of the said United States, and contrary to the form of the statute thereof in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. D. and E. F., the oflenders aforesaid, after the commission of said offence, to wit, on were first brought into the said Massachusetts district, and that the said Massachusetts district is the district into which the said offenders were first brouglit as aforesaid. » Cro. C. C. 592, (6th Ed.) ; 3 Chitt. 1131, 1132; Statute of United States of April 30, 1819, § 8 ; Gordon's Digest, p. 716, note (6.) See a similar pre- cedent, 1 Gall. Rep. 247, United States v. Tully et al. * Or " captain," if such be the case. PIRACY. 225 287. Against a Captain or Mariner for voluntarily yielding up his Vessel to a Pirate} The jurors &-c., upon their oath present, that A. B., of on &c., upon the high sea, out of the jurisdiction of any particu- lar State, he the said A. B. then being master and captain of \or a mariner in and on hoard^ a certain merchant ship, called the then and there belonging and appertaining to certain citizens of the United States, to the jurors aforesaid unknown ; and the said A. B., then being a citizen of said United States and captain of the said ship as aforesaid, did betray the trust in him the said A. B. reposed, and did then and there on the high sea, out of the jurisdiction of any particular State, wilfully, volunta- rily, piratically, and feloniously yield up and surrender the said ship, of which he was then and there captain as aforesaid, to cer- tain pirates, whose names are to said jurors unknown ; against the peace of the said United States, and contrary to the form of the statute thereof in such case made and provided. 288. Against a Seaman for laying violent Hands upon his Commander,^ with intent to prevent his fighting in Defence of his Ship. The jurors &;c., upon their oath present, that A. B., of &ic., on on the high sea, out of the jurisdiction of any particu- lar State, he the said A. B. then and there being a seaman on board a certain ship, called the belonging exclusively to certain citizens of the said United States, to the jurors aforesaid yet unknown, in and upon the body of one C. D., he the said C. D, then and there being the commafider of the said ship called the on the high sea aforesaid, out of the jurisdic- tion of any particular State, feloniously and piratically did make an assault ; and that the said A. B., being then and there such seaman as aforesaid, in and on board the ship aforesaid, felo- niously and piratically, did lay violent hands upon him the said C. D., commander of said ship as aforesaid, and the commander of him the said A. B. on board the same ship ; with intent, thereby piratically and feloniously to hinder and prevent him the said C. D.. commander of said ship as aforesaid, from fighting in defence of his said ship, and of the goods and chattels then on 1 On the act of Congress of April 30, 1819, § 8. Gordon's Digest, p. 716. 2 Ibid. 29 226 PIRACY. board the same, committed to the trust of him the said C. D ; against the peace of the said United States, and contrary to the form of the statute thereof in such case made and provided. 289. Against an Accessory to a Piracy before the Fact} \_Set forth the charge against the principal, as in the pre- ceding precedents, as the case may be, and. then proceed as follows : ] And the jurors aforesaid, upon their oatii aforesaid, do further present, that E. F., of he, before the piracy and felony aforesaid was committed, in manner and form aforesaid, to wit, on the said day of in the year aforesaid, on the high sea, out of the jurisdiction of any particular State, ^ did piratically and feloniously, knowingly and wittingly, aid and assist, procure, command, counsel, and advise the said A. B. the piracy and felony aforesaid to do and commit. And the jurors aforesaid, upon their oath aforesaid, do further present, that the felony and piracy aforesaid, so as aforesaid done and committed by the said A. B., did affect the life of him the said A. B. ; and that the said A. B. did do and commit the piracy and felony aforesaid, in manner aforesaid, upon the high sea, without the jurisdiction of any particular State, upon and in pur- suance of the aid, assistance, procurement, command, counsel, and advice aforesaid, of the said E. F., given and rendered as aforesaid to the said A. B. by him the said E. F. ; against the peace of ihe said United States, and contrary to the form of the statute thereof in such case made and provided. 290. Against an Accessory to a Piracy after the Fact.^ \Set forth the charge against the principal, as in the preceding precedents, as the case may be, and then proceed as follows : ] And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F., of &c., afterwards, to wit, on the said day of in the year aforesaid, on the high seas, [or on the land, if such be the fact, naming the place,Y out of the jurisdic- tion of any particular State, well knowing that the said A. B. had done and comu)itted the felony and piracy aforesaid, did knowingly entertain and conceal the said A. B., and did know- ^ Act of Congress of April 30, 1790, § 10. If the aiding &c. was given and rendered on the land, it must be so alleged, naming the particular place. See the section of the statute above quoted. 2 Act of Congress of April 30, 1790, § 11. 3 Ibid. PIRACY. 227 ingly receive and take into the custody of him the said E. F. the said vessel, goods, and chattels, which had been by the said A. B. piratically and feloniously taken as aforesaid, he the said E. F. then and there well knowing the same to have been pi- ratically and feloniously taken as aforesaid ; against the peace of said United States, and contrary to the form of the statute thereof, in such case made and provided. 291. For breaking and boarding a Ship, assaulting &fc. the Crew, and stealing Sfc. the Cargo} The jurors of the United States of America, within and for the district aforesaid, upon their oath present, that John Palmer, [and others, naming them,'] of on upon the high sea, out of the jurisdiction of any particular State, did piratically and feloniously set upon, board, break, and enter a certain ship, called the then and there being a ship belonging to certain persons to the jurors aforesaid unknown, and then and there pirati- cally and feloniously did make an assault in and upon certain persons, whose names are to the jurors aforesaid unknown, being mariners in the same ship ; and then and there piraiically and feloniously did put the aforesaid persons, mariners of the same ship as aforesaid, and in the ship aforesaid then and there being, in personal fear and danger of their lives ; then and there in the ship aforesaid, upon the high sea aforesaid, and out of the juris- diction of any particular State as aforesaid ; and piratically and feloniously did then and there steal, take, and carry away five hundred boxes of sugar, of the value of ^'20,000, [here set forth all the articles stolen with the value of each,] of the goods and chattels of certain persons to the jurors aforesaid unknown, then and there upon the high sea aforesaid, out of the jurisdiction of any particular State, being found in the aforesaid ship, in custody and possession of the said mariners of the said ship, from the said mariners in the said ship, and fiora their custody and possession then and there upon the high sea aforesaid, out of the jurisdic- tion of any particular State, as aforesaid ; against the peace of the said United States, and contrary to the form of the statute of the said United States in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do furtiier pre- sent, that the aforesaid district of Massachusetts, is the district where the offenders aforesaid [it is best to repeat their names] were first apprehended for the said offence. ' United States v. Palmer.et ah, 3 Wheat. R. 611. 228 ^ PIRACY. 292. For stabbing, casting into the Sea, and drowning the Deceased.^ The jurors &.C., upon their oath present, that A. B., [and others, naming them,'] being; citizens of the United States, on upon the high sea, out of the jurisdiction of any particu- lar State, in and on board a certain schooner, the name of which is to the jurors aforesaid unknown, in and upon one C. D., a mariner in and on board said vessel, piratically and feloniously did make an assault, and that he the said A. B., with a certain steel dagger, which he the said A. B. in his hand then and there had and held, the said C. D., in and upon the breast of him the said C. D., upon the high sea, and on board the schooner afore- said, and out of the jurisdiction of any particular State, piratically and feloniously did strike and thrust, giving to the said C. D. in and upon the breast of him the said C. D., upon the high sea aforesaid, in and on board the said schooner, and out of the jurisdiction of any particular State, piratically and feloniously, in and upon the breast of him the said C. D. several grievous, dan- gerous, and mortal wounds ; and did then and there, in and on board the schooner aforesaid, upon the high sea, and out of the jurisdiction of any particular State, piratically and feloniously, him the said C. D. cast and throw from out of the said schooner into the sea, and plunge, sink, and drown him in the sea afore- said ; of whicli said mortal wounds, casting, throwing, plunging, sinking, and drowning, the said C. D., in and upon the high sea aforesaid, out of the jurisdicdon of any particular State, then and there instantly died. And the jurors aforesaid, upon their oath aforesaid, do say, that by reason of the casting and throw- ing the said C. D. in the sea as aforesaid, they cannot describe the said mortal wounds. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., [and others,] him the said C. D., then and there, upon the high sea aforesaid, out of the jurisdiction of any particular State, in manner and form aforesaid, piratically and feloniously did kill and murder ; against the peace of the said United States, and contrary to the form of the statute thereof in such case made and provided. ' United States v. Holmes et al., 5 Wheat. 412. POLYGAMY. 229 POLYGAMY. 293. Indictment for having two Wives at the same Time} The jurors &;c., upon their oath present, that A. B., of &.C., on Stc, at &:c., did marry one C. D., spinster, and her the said C. D. then and there had for his wife ; and that the said A. B. afterwards, to wit, on &tc., at &;c., being then married to, and the lawful husband of the said C. D., did unlawfully marry and take to wife one E. F., of &c., widow, and to her the said E. F. was then and there married ; the said C. D., his former wife, being then living and in full life ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 294. Indictment for having two Husbands at ane and the same TimeJ^ The jurors Sic, upon their oath present, that A. B., on Stc, being then married and the lawful wife of one C. D., at &tc., did then and there unlawfully marry, and take to her husband one E. F., the said C. D., her former husband, being then in full life 5 against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided.^ ^ Statute of Massachusett3, 17S4, c. 40 ; 2 Stark. 412, 413 ; 2 Chitt. 721, 18 ; Cro. C. A. 12. * There is another count in the precedent from which this is taken, stating the time and place of the first marriage. It is the case of the Duchess of Kingston, on which she was tried and convicted before the House of Lords, and the pre- cedent is taken from 4 Hargrave's St. Tr. 100. ^ The first wife cannot be a witness against her husband, or vice versa, for the first marriage was valid ; but the second may after the first marriage has been established •, for no legal relationship exists between them. 2 Chitt. 719, note (o). For the proof necessary to establish the first marriage, see 1 East P. C. 469 - 472. 230 SELLING UNWHOLESOMR PROVISIONS. SELLING UNWHOLESOxME PROVISIONS. 295. For selling unwholesome Provisions : On the Statute of Massachusetts, 1784, c. 50. The jurors &z;c., upon their oath present, that A. B., of on at in the county aforesaid, from motives of avarice and filthy lucre, was induced to sell and did sell to one C. D. a certain quantity of diseased, corrupted, contagious, and unwholesome provisions, for meat ; that is to say, one hundred pounds' weight of diseased, corrupted, contagious, and unwhole- some beef; knowing the same to be diseased, corrupted, un- wholesome, and contagious, without making it known to him the said C. D., the buyer thereof; to the great damage of him the said C. D. ; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and provided. 296. At common law, for supplying unwholesome Bread} The jurors &c., upon their oath present, that A. B., of &£c., on at in the county aforesaid, knowingly, wilful- ly, maliciously, and deceitfully did provide, furnish, and deliver, to and for sundry prisoners of war, (whose names are to the jurors aforesaid yet unknown,) and who were then under the protection of the government of the United States, confined in a certain hospital, called hospital, situated in afore- said, divers large quantities, to wit, five hundred pounds' weight of bread, to be eaten as food by the said prisoners of war ; which bread was then and there made and baked in an unwhole- some and insufficient manner, and was made of, and contained dirt, filth, and other pernicious and unwholesome materials and ingredients, not fit to be eaten as aforesaid ; whereby the said prisoners of war did then and there eat of said bread, and there- by became distempered in their bodies, and injured and endan- gered in their healths ; against the peace and dignity of the Com- monwealth aforesaid. 1 2 Stark. 656, note (6) ; Rex v. Treeve, East P. C. 821, where it was de- cided that this is an offence at common law. Also Rex v. Dickson, 2 Stark. 656, note (a), where it was decided not to be necessary that the noxious mate- rials should be particularly stated. RAPE. 231 RAPE. 297. Form of an Indictment for a Rape} The jurors &c., upon their oath present, that A. B., of Sic, on the day of with force and arms, at B. afore- said, in the county aforesaid, in and upon one C. D., of &c., spinster, violently and feloniously did make an assault ; and her the said C. D. then and there feloniously did ravish and car- nally know, by force,^ and against her will ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 298. For carnally knowing and abusing a female Child under the Age of Ten Years.^ The jurors &c., upon their oath present, that A. B., of &c., on the day of with force and arms, at B. aforesaid, in the county aforesaid, in and upon one C. D., a woman child under the age of ten years, to wit, of the age of eight years, feloniously did make an assault; and her the said C. D. then and there unlawfully and feloniously did carnally know and abuse ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 299. Against two Persons for assaulting a married Woman with intent that one of them should ravish her.'^ The jurors he, upon their oath present, that A. B., of &c., and C. D., of he, on with force and arms, at in and upon one E. F., the wife of one G. F., of &;c., did make an assault ; and her the said E. F. did then and there beat, abuse, and ill-treat ; with an intent that he the said A. B. her the said E. F. should then and there feloniously ravish, and carnally • On the statute of Massachusetts of 1805, c. 97 ; 3 Chitt. 815. See 2 Stark. 409; Cio. C. C. 611, (6th Ed.) * The words " by force " are made use of in the statute of Massachusetts last above quoted. They are used in 1 Hawk. c. 41, § 1, in his definition of Mape. But they are not used in the English precedents for JRape. 3 3 Chitt. 815 ; 2 Stark. 409 ; Cro. C. C. 611, (6th Ed.) Statute of Massa- chusetts, 1805, c. 97. ♦ 3 Chitt. 817; 2 Stark. 386. 232 RESCUE. know, by force and against her will ; against the peace and dig- nity of the Commonwealth aforesaid, and contrary to the form of "the statute in such case made and provided. RESCUE. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment ; and is generally the same offence in the stranger committing it, as it would have been in a gaoler to have permitted a voluntary escape. A rescue, therefore, of one apprehended for felony, is felony ; and for a misdemeanor, a misdemeanor.^ To constitute a rescue, the party rescued must be in actual custody. A prisoner, who breaks gaol, may be arraigned for that crime before he is convicted of the crime for which he was originally committed ; but a stranger, or third person, who rescues a felon, cannot be found guilty before the felon is convicted.^ The indictment must set forth the nature and cause of the imprisonment, and the special circumstances of the fact in ques- tion.^ 300. Indictment for rescuing a Person in Custody of a Con- stable under a Justice's Warrant.'^ The jurors &:c., upon their oath present, that A. B., Esq., then and now one of the justices of the peace in and for the county of S., duly qualified and empowered to perform the duties of that office, did make his certain warrant in writing, under his hand and seal, directed to any of the constables of the town of in the county aforesaid, by which said warrant the constables aforesaid were commanded to take the body of C. D., late of &ic., and bring him before the said A. B., Esq., to be by him the said A. B., Esq., examined concerning an assault » 4 Black. Com. 131, ^ H^wk. b. 2, c. 21, § 8. ^ id. § 5. * 2 Chitt. 182, 183, note (»), and the precedents there referred to. RESCUE. 233 said to have been made and committed by him the said C. D. upon one E. F., of &c., which said warrant was afterwards, to wit, on at &c., delivered to one I. J., one of the constables of the said town of duly appointed and qualified to discharge and perform the duties of that otiice, to be by him executed in due form of law ; and that the said I. J., so being constable as afore- said, afterwards, to wit, on at aforesaid, by virtue of the said warrant, did take and arrest the said C. D. for the cause aforesaid ; and him the said C. D. the said I. J. in his custody, by virtue of said warrant, then and there had; and that the said C. D., late of &;c., and K. L., late of &c., well knowing the said C. D. so to be arrested as aforesaid, afterwards, to wit, on the said day of at B. aforesaid, with force and arms, in and upon the said I. J., the constable aforesaid, then and there being in the due and lawful execution of his said office, did make an assault; and him the said I. J. did then and there beat and abuse ; and that the said K. L. him the said C. D. out of the custody of him the said I. J,, and against the will of him the said I. J., then and there unlawfully did rescue and put at large, to go whither he would ; and that the said C. D. himself, out of the custody of the said I. J. and against his will, then and there unlawfully did rescue and escape at large to go where he would ; to the great damage of him the said I. J., and against the peace and dignity of the Commonwealth aforesaid. 301. For rescuing Goods distrained for Rent} The jurors fee, upon their oath present, that A. B., of &c.,on at in due course of law, took and distrained one chest of draws of the value of four dollars, \here describe the articles distrained'\ of the goods and chattels of one C. D., then being in a certain lodging-room in the dwelling-house of him the said A. B., situate in the said town of B., and county aforesaid ; which same distress was taken by the said A. B. for the sum of ten dollars ; being the sum due for rent for one whole year, in arrear from the said C. D. to him the said A. B., for the lodg- ing aforesaid ; and that the said A. B., the goods and chattels aforesaid then and there had and detained in his custody for the cause aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F., late of &c., in the county of yeoman, afterwards, to wit, on the day 1 2 Chitt. 201, 202 ; Stark. 617, 389,390; Cio. C. C. 618, (6th Ed.) 30 234 RESCUE. of in the year aforesaid, with force and arms, at aforesaid, in the county aforesaid, the said goods and chattels, so as aforesaid by him the said A. B. taken and distrained, and in the custody of him the said A. B. then and there being, from and out of the custody, and against the will of him the said A. B. then and there unlawfully and injuriously did rescue, take, and carry away ; the said sum of ten dollars, for the rent in arrear, as aforesaid due, nor any part thereof being paid, and other wrongs then and there did, to the great damage of the said A. B., and aganist the peace and dignity of the Commonwealth afore- said. 302. For rescuing Cattle out of a Pound taken as Distress, Damage Feasant} The jurors &ic., upon their oath present, that on at one A. B. took and distrained one mare and two colts of the cattle of one C. D., of &;c., of the price and value of one hundred dollars, in and upon a certain close or parcel of land of him the said A. B., called &c., lying and being in afore- said wrongfully feeding and depasturing upon the grass, growing in and upon the said close and parcel of land, and doing damage to him the said A. B. there, as a distress for the damage then and there done and doing by the said cattle ; and the said mare and colts so taken and distrained as aforesaid, he the said A. B., on the same day and year aforesaid, at aforesaid, in the common pound of the town of in the said county of impounded and kept and detained the same in the said common pound there, as a distress for the cause aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said mare and colts being so impounded, and remaining in the said common pound there, as a distress for the cause afore- said, the said C. D., on at aforesaid, the said com- mon pound broke and entered, and the said mare and colts from out of the same, w^ithout the license and against the will of the said A. B., and without any satisfaction having been made to the said A. B. for the said damage done by the said mare and colts as aforesaid, unlawfully did rescue, take, lead, and drive away ; against the peace and dignity of the Commonwealth aforesaid.^ * 2 Chitt. 204, note (d), where it is said that pound-breach is indictable at common law, and Hawk. b. 2, c. 21, § 20, is there quoted ; Id. c. 10, § 56. » There is a precedent in 2 Chitt. 203, 204, for a rescue of cattle taken damage feasant, before they were impounded. Queer e, as to that precedent. RESCUE. 235 303. For breaking a Pound and letting out a Mare} The jurors &tc., upon their oath present, that heretofore, to wit, on at one A. B., in due form of law, [here state his authority,'] took and distrained one mare, the property of one C. D., of &ic., of the value of in and upon a certain close of him the said A. B,, situate and being in &c., and there wrongfully and unlawfully feeding and depasturing upon the herbage and grass of the said A. B., then growing and being in and upon the said close ; and doing damage there to him the said A. B., as a distress for the said damage so then and there done and doing by the said mare, and the said mare so taken and restrained as aforesaid, he the said A. B., on at aforesaid, in a certain common and open pound of and belonging to the said town of B., and within the same town, impounded ; and the same mare was duly and lawfully secured, kept, and detained in the said common pound there, by E. F., then and there being the lawful keeper of the said pound, as a distress for the cause aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said mare being so impounded and remaining in the said common pound there, as a distress for the cause aforesaid, the said C. D., after- wards, to wit, on at the said common pound broke and entered, and the said mare, from and out of the same, with- out the license or consent, and against the will of the said A. B., and of the said E. F., the keeper of said pound, and without any satisfaction being made to the said A. B. for the damage done by the said mare as aforesaid, unlawfully did rescue, take, lead, and drive away ; against the peace and dignity of the Common- wealth aforesaid. * 2 Chitt. 205. See note (1) to the last preceding precedent; and note (d) to tbe precedent in 2 Chitt. 204, for rescuing cattle out of a pound, taken as a distress, damage feasant. 236 RIOT. RIOT. 304. Indictment for a Riot.^ The jurors &;c., upon their oath present, that A. 13., C. D., and E. F., together with divers others to the numher of ten, whose names are to the jurors aforesaid as yet unknown, on at aforesaid, in the county aforesaid, with force and arms, did unlawfully, riotously, and routously assemble, and gatlier themselves together to disturb the peace of the said Commonwealth ; and then and there being so assembled and gathered together, did then and there make a great noise, riot, tumult, and disturbance, and then and there unlawfully, riotous- ly, routously, and tumultuously remained and continued togeth- er, making such noises, riot, tumult, and disturbance, for the space of six hours then next following, to the great terror and disturbance of all the ciuzens of the said Commonwealth there passing and repassing in and along the public streets and com- mon highways there, and against the peace and dignity of the Commonwealth aforesaid. 305. For a Riot and Assault.^ The jurors fee, upon their oath present, that A. B., C. D., and E. F., all of &,c., together with divers others, evil disposed persons, to the jurors aforesaid unknown, on the day of with force and arms, at B. aforesaid, in the county afore- said, did unlawfully, riotously, and routously assemble and gather themselves together, to disturb the peace of the CommonweaUh ; and being then and there so assembled and gathered together, in and upon one G. H., unlawfully, riotously, and routously did make an assault ; and him the said G. H., then and there unlaw- fully, riotously, and routously did beat, wound, and ill-treat, so that his life was thereby greatly endangered ; and other wrongs then and there unlawfully, riotously, and routously did and committed, to the great damage of him the said G. H., to the great terror of the people, and against the peace and dignity of the Commonwealth aforesaid. > 2 Stark. 640 ; 2 Chitt. 488. 8 2 Stark. 640 ; 2 Chitt. 488, 500. RIOTS, fee. 237 306. For a Riot, Assault, and False Imprisonment.^ \_The same form as in the next preceding precedent, until you come to the ivords, " so that his life was thereby greatly endan- gered," after which add,^ and him the said G. H., then and there, with force and arms, unlawfully, riotously, routously, and injuriously, against the will of him the said G. H., and contrary to the laws of this Commonwealth, without any legal warrant, authority, or justifiable or probable cause whatsoever therefor, did imprison and detain in prison, for the space of six hours then next following, and other wrongs to the said G. H. they the said A. B., C. D., and E. F., then and there, unlawfully, riotously, and routously did and committed ; to the great terror and dis- turbance of the people, to the great damage of him the said G. H., and against the peace and dignity of the Commonwealth afore- said. 307. For riotously assembling to prevent the Execution of an Act of the Legislature, relative to the Revenue.^ The jurors &c., upon their oath present, that C. D., E. F., and G. H., together with divers others, to wit, fifty other persons, to the said jurors as yet unknown, being riotous persons and dis- turbers of the peace, on at &,c., with force and arms, unlawfully, riotously, and tumultuously did assemble and gather together to disturb the peace of the said Commonwealth, and with an intent unlawfully, riotously, and tumultuously to obstruct and hinder the execution of a certain act or law of the Legisla- ture of this Commonwealth, made and passed on the day of &c., entitled " An act " Stc, [^set out the title of the act,^ and being so assembled and gathered together, the said C. D., E. F., and G. H., and the said other persons, to the said jurors unknown, then and there unlawfully, riotously, and tumultu- ously remained and continued together, making great noises, and committing great violences and disturbances for the space of four hours ; to the great terror of the people, there about inhab- iting, resorting, and being, and of all other citizens of said Com- 1 2 Chitt. 500 ; Cro. C. C. 623, (6th Ed.) * 2 Chitt. 491, 492. This indictment was against Samuel Horn and others ; Horn was convicted, 26 Geo. 3. See 2 Chitt. 492, note (/). See alsb a similar precedent, (2 Chitt. vbi sup.,) for a riot to prevent the execution of a turnpike road act. 238 RIOTS, he. monwealth, then and there passing the public highway there ; to the evil example of all others in like case to offend, and against the peace and dignity of the Commonwealth aforesaid. 308. For a Riot in the Theatre, and preventing the Per- formance of the Play} The jurors Sic, upon their oath present, that C. D., E. F., and G. H., together with other evil disposed and riotous per- sons, to the number of twenty, to the jiuors aforesaid, as yet, un- known, on at &c., with force and arms, unlawfully, riot- ously, and tuinultuously, did assemble and gather together to disturb the peace of said Commonwealth, at and in a certain theatre in B. aforesaid, called the Boston Theatre ; and being so assembled and gathered together in the said theatre, then and there made and raised, and caused and procured to be made and raised a great noise, riot, tumult, and disturbance, in order to obstruct, and for the purpose of obstructing, preventing, and hin- dering the performance of the exhibition of a certain play, called " The Merchant of Venice," in the said theatre, which said play was appointed by the managers of said theatre to be then and there acted and performed at and in the said theatre on that day, according to public notice thereof in that behalf given ; they the said managers of said theatre, then and there having lawful power, license, and authority for that purpose ', and that the said C. D., E. F., G. H., and the said other persons, to the said jurors unknown, did then and there, with force as aforesaid, un- lawfully, tumultuously, riotously, and routously obstruct, prevent, and totally hinder the said play from being then and there acted and performed, at and in the said theatre ; to the great terror of the people, and of the persons then and there peaceably assem- bled and composing the audience at and in the said theatre, to the great loss, damage, and injury of the said managers of said theatre, and against the peace and dignity of the Commonwealth aforesaid. ' 2 Chitt. 498, 499. Going to the tlieatre with intention to make a disturb- ance and render the performance inaudible is indictable. See similar prece- dents Cio. C C. 625, (6th Ed.); Cro. C. A. 166. RIOTS, &;c. 239 309. For riotously assembling and hanging the Effigy of a Person} The jurors Sic, upon their oath present, that C. D., E. F., and G. H., together with divers other evil disposed and riotous persons, to the number of twenty, to the said jurors yet unknown, being of unruly and turbulent tempers and dispositions, and un- lawfully, wilfully, and maliciously intending to disquiet and ter- rify one I. J. on at &tc., unlawfully, tumultuously, and riotously did assemble and meet together with intent to break and disturb the peace of said Commonwealth, and being so assem- bled as aforesaid, a certain wooden gallows, in the highway there, and near to the dwelling-house of the said I. J., unlawfully, tu- multuously, riotously, routously, and maliciously did erect ; and a certain figure, resembling a man. as and ibr the effigy of the said I. J., then and there unlawfully, maliciously, and riotously did hang and affix to the said gallows ; and did then and there threaten the said I. J. to hang him up alive, and did then and there, for the space of three hours, make a great noise and dis- turbance of the peace ; to the great terror of the said I. J. and of the people there and thereabouts residing, inhabiting, and being, to the great damage of him the said I. J., and against the peace and dignity of the Commonwealth aforesaid. 310. For a Riot and pulling down an Out-House.^ The jurors &;c., upon their oath present, that C. D.j E. F., and G. H., together with other evil disposed and riotous persons, to the number of ten, to the said jurors unknown, on at with force and arms, to wit, with sticks, staves, and other offensive weapons, did unlawfully, riotously, and routously assem- ble and gather together to disturb the peace of said Common- wealth ; and being so assembled and gathered together, a certain building and out-house, in the possession and lawful occupation of one I. J., then and there unlawfully, riotously, and routously did pull down, remove, break, and destroy, and other wrong's then and there did ; to the great disturbance and terror of the people there residing and being, to the great damage of him the said I. J., and against the peace and dignity of the Common- wealth aforesaid. 1 From 2 Chitt. 501, 502, note (p), all the defendants were convicted on this indictment. » 2 Chitt. 502. 240 RIOTS, &,c. 311. For a Riot in a House, and assaulting a Lodger.^ The jurors Sic, upon their oath present, that C. D., E. F., and G. H., togetlier with divers other evil disposed and riotous people, to the number of six, to the said jurors yet unknown, on the day of he, with force and arms, at B. aforesaid, in the county aforesaid, did unlawfully, riotously, and ronlonsly assemble and meet together to disturb the peace of the said Commonwealth, and being so assembled and met together, the dwelling-house of one I. J. there situate, then and there unlaw- fully, riotously, and routously did beset, break, and enter, and then and there unlawfully, riotously, and routously did make a great noise, riot, and disturbance, in the said dwelling-house, and did then and there unlawfully, riotously, and routously continue in said dwelling-house, making such noise, riot, and disturbance for the space of three hours, and thereby gready disquieted and terrified the said I. J. and his lodgers in the peaceable possession and enjoyment of his said dwelling-house, and then and there unlawfully, riotously, and routously, in and upon one K. L., a lodger and inmate in said dwelling-house, an assault did make, and him the said K. L. then and there unlawfully, riotously, and routously did beat, wound, and abuse, so that his life was thereby greatly endangered, and thereby greatly terrified the said I. J. and his family ; and other wrongs then and there unlawfully, riotously, and routously did and committed ; to the great terror of the people, to the great damage of him the said K. L., and against the peace and dignity of the Commonwealth aforesaid. 312. For riotously attacking a Dwelling-House, breaking the Windows, <^c. The jurors Sic, upon their oath present, that C. D.^ E. F., and G. H., together with divers others to the number of twenty, to the said jurors unknown, being evil disposed and riotous per- sons, and disturbers of the peace of said Commonwealth, on Sic, with force and arms, to wit, with clubs, staves, stones, and other dangerous and offensive weapons, at B. aforesaid, in the county aforesaid, the dwelling-house of one I. J. there situate, in the night time, unlawfully, riotously, and routously did attack and beset, and did then and there unlawfully, riotously, routously, and outrageously make a great noise, disturbance, and affray, near to and about the dwelling-house of him the said I. J. there 1 2 Chitt. 503, 504. RIOTS, &£C. 241 situate, and did unlawfully, riotously, and routously continue near to and about the said dwelling-house, making such noise, dis- turbance, and affray, for the space of two hours, and the win- dows of the said dwelling-house did then and there unlawfully, riotously, and routously, with the dangerous and offensive wea- pons aforesaid, break, destroy, and demolish ; to the great damage, terror, and dismay of him the said I. J., and of his family, in the dwelling-house aforesaid then and there lawfully being, to the great terror of the people of said Commonwealth, and agriinst the peace and dignity of the Commonwealth afore- said. 313. For riotously breaking a Dwelling-House and removing Goods} The jurors he, upon their oath present, that C. D., E. F., and G. H., and divers other evil disposed persons, to the number of twenty, to the said jurors as yet unknown, on &c., with force and arms, at B. aforesaid, did unlawfully, riotously, and routous- ly assemble and meet together to disturb the peace of said Com- monwealth, and being so assembled and met together, the dwel- ling-house of one I. J. there situate, did then and there unlawfully, riotously, and routously break and enter, and in and upon him the said I. J. unlawfully, riotously, and routously did make an assault, and him the said I. J., in his dwelling-house aforesaid, unlawfully, riotously, and routously did beat, wound, and ill treat ; and did then and there, in the said dwelling-house, unlawfully, and against the will of the said I. J., stay and continue for the space of four hours, and then and there unlawfully, riotously, and routously did seize and take into tieir possession, and put, cast, fling, and throw divers goods and chattels, to wit, [here enumerale the goods,'] of him the said I. J., of the value of twenty dollars, then and there in the dwelling-house aforesaid being found, from and out of the same into the public street there, and tliereby greatly damaged, injured, and broke in pieces the said goods and chattels, and other wrongs then and there did ; to the great terror of the people of said Commonwealth, to the great damage of the said I. J., and against the peace and dignity of the Commonwealth aforesaid. * 2 Chitt. 504. See do. C. A. 331, for beginning to demolish a house, on the statute of 1 Geo. 1, c. 5, § 4. 31 242 RIOTS, &;c. 314. For a Riot, in breaking into a Dwelling-House on pre- tence of an Execution.^ The jurors &.C., upon their oath present, that A. B., of &ic., and five others, to the jurors aforesaid unknown, on at with force and arms, unlawfully, riotously, and routously, did assemble and gather themselves together to disturb the peace of the said Commonwealth ; and so being then and there as- sembled and gathered together, the said A. B., and the said five others, to the jurors aforesaid unknown, afterwards, on the same day, at aforesaid, the mansion-hou^e of one C. D. there situate, then and there unlawfully, riotously, and routously did attack, beset, break, and enter; and tlie door of a chamber in which the said C. D. then was, in the mansion-house aforesaid, they the said A. B. and the said five others to the jurors afore- said as yet unknown, then and there, unlawfully, riotously, and routously did open, break, demolish, and enter, under the pre- tence that the said A. B., and the five others to the jurors afore- said as yet unknown, then and there had an execution against the said C. D. for the sum of and that the said A. B. and the said five other persons to the jurors unknown, then and there, in and upon one E. F., spinster, then and there being in the man- sion-house aforesaid, did then and there, with a certain drawn sword, unlawfully, riotously, and routously make an assault, and her the said E. F. in great peril and danger of her life, then and there, unlawfully, riotously, and routously did put; and other wrongs then and there did, to the great damage of them the said C. D. and E. F., and against the peace and dignity of the Commonwealth aforesaid. 315. Indictment for a Riot, breaking info a Room with offen- sive Weapons, Sfc, Assault and Battery in the Room, and breaking the Furniture.^ The jurors &z;c., upon their oath present, that A. B. C. D. and E. F., together with divers other evil disposed and riotous per- sons, to the jurors aforesaid unknown, on at with force and arms, to wit, with cudasses, sticks, bludgeons, and other offensive weapons, at he. aforesaid, did unlawfully, riot- ously, and routously assemble and meet together to disturb the 1 1 Trem. P. C. 181. * 2 Chitt. 502, 503 : 4 Went. 151. RIOTS, kc. ' 243 peace of the said Commonwealth, and being so assembled and met together did then and there unlawfully, riotously, and rout- ously break and enter into a certain room in and part of a certain warehouse or building of one G. H. there situate ; and in which said room the said G. H. and divers other persons were then and there assembled and met together, and did then and there unlaw- fully, riotously, and routously make a great noise, tumult, and affray in the said room, and then and there with the said cutlasses, sticks, bludgeons, and other offensive weapons, the said G. H. and divers other persons whose names are to the jurors aforesaid as yet un- known, unlawfully &c. assaulted ; and the said G. H. and the said other persons then and there unlawfully &.c. cut, beat, dragged about, wounded, and ill treated, so that their lives were thereby then and there greatly endangered, and then and there unlaw- fully &;c. broke down, demolished, and destroyed the window- shutters and divers other parts of the said warehouse, and thea and there unlawfully &;c. broke up, tore up, broke to pieces, damaged, spoiled, and destroyed the benches, chairs, and divers other articles of the furniture and fixtures of and in the said room, and other wrongs to the said E. F. &ic. then and there unlawfully, riotously, and routously did, to the great damage of the said E. F. &,c., in contempt &;c., to the evil and pernicious example &;c., and against the peace he. 316. For a Riot, by twelve Persons remaining an Hour after Proclamation read} The jurors &c., upon their oath present, that C. D., E. F., and G. H., \additions,'\ and divers other persons, to the number of twelve and more, to the jurors aforesaid as yet unknown, on the day of &ic., with force and arms, at B. aforesaid, in the county aforesaid, unlawfully, riotously, routously, and turnul- tuously did assemble and meet together, to the great disturbance of the public peace, and that afterwards, to wit, on the said day of in the year aforesaid, at B. aforesaid, I. J., Esq., then being one of the justices of the peace in and for the said county of S., duly and legally qualified and empowered to discharge and perform the duties of that office, did then and there come, as near as he safely could, to the said C. D., E. F., ' 2 Stark, b. 42 ; Cio. C. A. 175 ; Cro. C. C. 630, (6th Ed.) The statute of Massachusetts [Stat. 17S6, c. 38, § 1,] upon which this precedent is drawn, is very similar in its provisions to that of 1 Geo. 1, c. 5, § 1, 2, on which the precedents in Starkie, Cro. C. A. and others, are drawn. The words of the pro- clamation are, mutatis mutandis, the same. 244 RIOTS, &,c. and G. H., and the said other persons, to the number of twelve and more, to the said jurors unknown, being then and there so assembled to disturb the public peace as aforesaid, and with a loud voice, he the said 1. J., Esq., did then and there com- mand silence to be, while proclamation was making ; and the said I. J., Esq., after that, did then and there openly, and with a loud voice, make proclamation, according to the form of the statute in such case made and provided, in these words follow- ing, that is to say, " Common wealth of Massachusetts. By virtue of an act of this Commonwealth, made and passed in the year of our Lord one thousand seven hundred and eighty-six, entitled, an act for the suppressing routs, riots, and tumultuous assemblies, and the evil consequences diereof, 1 am directed to charge and command, and I do accordingly charge and command all per- sons, being liere assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to dieir lawful business, upon the pains inflicted by the said act. God save the Commonwealth." And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. D., E. F., and G. H., and said divers other persons, to the number of twelve and more, to the said jurors unknown, afterwards, to wit, on the same day of in the year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, notwith- standing the said proclatr)ation was openly made as aforesaid, did then and there unlawfully, riotously, and tumultously, and to the disturbance of the public peace, remain and continue to- geUier, by the space of one hour and more after such command made by the said proclamation as aforesaid ; to the great terror and disturbance of all the quiet and peaceable citizens of the said Commonwealth, against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided. Robbery. — See " Larceny and Robbery. SABBATH-BREAKING. SABBATH-BREAKING. 245 The profanation of the sabbath has been punished by our English ancestors as an offence against God and religion, ever since the lime of the Saxon kings ; and by the fathers of New- England, ever since the settlement of the country. The excel- lent remarks of Sir William Blackstone, upon this subject, should be written in the heart of every American. " Besides," he observes, " the notorious indecenc) and scandal of permitting any secular business to be publicly transacted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping of one day in seven holy, as a time of relaxation and refreshment, as well as of piib- lic worship, is of admirable service in a State, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the people, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit ; it enables the industrious workman to pursue his occupation in the ensuing week, with health and cheerfulness ; it imprints on the minds of the people that sense of their duty to God, so ne- cessary to make them good citizens, but which would be worn out and defaced by an unremitted continuance of labor without any stated times of recalling them to the worship of their Maker." 317. For keeping an open Shop on the Lord's Day} The jurors &lc., upon their oath present, that A. B., of &c., on and continually afterwards, until the day of the taking of this inquisition, at aforesaid, in the county aforesaid, was and yet is a common sabbath-breaker, and profaner of the Lord's > This precedent is drawn upon the 1st section of the statute of Massachu- setts of 1791, c. 58. See also 2 Chitt. 20, note (c.) where it is said that the offence consists in keeping open shop, not in selling the goods ; cites 4 Black. 63; 1 East P. C. 5; Hawk. b. 1, c. 6, § 6 ; and that most acts for profaning the Sabbath, are punished summarily before magistrates. 246 SABBATH-BREAKING. day ; and that the said A. B., on the said day of being Lord's day, and at divers other days and times, being Lord's days, during the times aforesaid, at B. aforesaid, in the county aforesaid, did keep open his the said A. B.'s shop, and did keep an open and common public shop ; and in the said shop, (lid then and there, and on the said other days and limes, being Lord's days, openly and publicly sell, and expose to sale, flesh meat, to divers persons to the said jurors unknown ; to the great injury and comn)on nuisance of all the citizens of said Com- monwealth, against the peace and dignity of the Common- wealth aforesaid, and contrary to the form of th,e statute in such case made and provided. 318. Against a Drover for travelling and driving Droves of Cattle on the Lord's Day : On the 2d Section of the Statute.^ The jurors he, upon their oath present, that A. B., of he, on being Lord's day, at B. aforesaid, not regarding the duties and solemnities of the said day, nor the due observation of the same, did travel on said day, and did drive and cause to be driven, on the said Lord's day, a large collection and drove of oxen, cows, sheep, and other animals, through the public street and highway in the said town of B., and near to the places of public worship in said town, during the performance of the public worship of God in the said houses of public worship ; which travelling and driving of said oxen, cows, sheep, and other animals, through the street and highway aforesaid by the said A. B., was not from necessity or mercy ; to the great disturb- ance and annoyance of the well disposed people of the said town of B., against the peace of the said Commonweahh, and con- trary to the form of the statute in such case made and pro- vided. 1 This law is totally disregarded in some parts of Massachusetts. Thirteen droves of cattle have been driven through one town in the county of Middlesex, each consisting of from one hundred and fifty to two hundred in number, dur- ing the performance of public religious services, in the morning of one Sab- bath and within a few rods of several houses of public worship ! SABBATH-BREAKING. 247 319. For indecent and rude Behaviour within the Walls of a Place of Public Worship : On the 1th Section of the Statute. The jurors he, upon their oath present, that A. B., of &z;c., being a person of rude, indecent, and irreligious habits and nian- ners, and regardless of the duties and solemnities of the public worship of God, and of the due observation of the Lord's day, on it being Lord's day, at within the walls of a bouse of public worship there, and during the performance of divine service in said house, did behave rudely and indecently, by [here set forth the rude and indecent behaviour ; '] against good morals and good manners, against the peace of the said Commonwealth, and contrary to the form of tlie statute in such case made and provided. 320. For interrupting and disturbing Public Worship : On the Sth Section of the Statute. The jurors &;c., upon their oath present, that A. B., of Stc, being a person regardless of the duties and solemnities of the public worship of God, and of the due observation of the Lord's day, at B., aforesaid, in the county aforesaid, did wilfully inter- rupt and disturb a certain assembly of people, there met for the public worship of God within the place of their assembling, to wit, within the meeting-house, in the first parish in the said town of B., by making divers loud and indecent noises and tumults, during the performance of divine service in said meeting-house; to the great injury and insult of the orderly people then and there assembled in the said meeting-house for the purposes aforesaid, against good morals and good manners, against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided. Note. The statute upon which these precedents are drawn^ created a great number of small offences, most of which are cognizable by a justice of the peace. See 2 Chit. 20, note (c.) 248 SEPULCHRES OF THE DEAD. SEPULCHRES OF THE DEAD. 321. At Common Law, fur (Jigi^imr up and carrying away a Dead Body out of a Church Yard} The jurors &ic., upon llicir oath present, that A. B., of &tc., on at the coinnion burying groiuul [^or church yard, as the case may />e,] in the first parish in the said town ol B., there situate, unlawfully, knowingly, and willully did break and enter, and the grave there, in wliich one C D., deceased, had been lately before interred and then was, unlawfully, knowingly, and wilfully did dig open, and afterwards, to wit, on the same day, at said B., the body of the said C D. out of the grave aforesaid, unlawfully, knowingly, and wilfully did take and carry away, to the great scandal to Christian burial, and against the peace and dignity of the Commonwealth aforesaid. 322. For digging up a Human Body ^-c. : On the \st Sec- tion of the Statute of Massachusetts, of February 28, 1831.2 The jurors &;c., upon their oath present, that A. B., of he, on he, at kc, knowingly, wilfully, and feloniously did dig up, remove, and convey away, and did knowingly, wilfully, and feloniously aid and assist in digging up, removing, and conveying away, a human body, and the remains thereof; he the said A. B. not being authorized by the board of health, overseers of the poor, or the selectmen in any town in this Commonwealth, \^or by the directors of the house of industry, overseers of the poor, or the mayor and aldermen of the city of Boston in said Common- wealth, if the offence ivas committed in that city ; ] against the 1 See the precedents in 2 Chitt. 35 ; Cio. C. C. 212, (6th Ed.) See also 2 T. R. 733, 734 ; 2 East P. C. 652 ; and 4 East P. C. 465 ; Leach C. L. 497 ; 4 Bl. Com. 236; 1 Hale, 515. To arrest a dead body and thereby prevent its burial, is unlawful ; 4 East, 465. See also a case of this kind referred to in Da- vis's Justice, 393, (2d Ed.) tried at nisiprius, before the late Chief Justice Parsons. * This statute repeals the former statute of 1814, c, 175, and makes the of- fence a felony. SEPULCHRES OF THE DEAD. 249 peace of the said Cornraonuealih, and contrary to the form of the statute thereof in such case made and provided. 323. Against an Accessory before the Fact for digging up a Human Body : On the 2d Section of the Statute. The jurors &ic., upon their oath present, that A. B., of &,c., [here state the offence against the principal, as in the next pre- ceding precedent, and then go on as foUows.'\ And the jurors aforesaid, upon tlieir oath aforesaid, do luriher present, that C. D., of &:c., on Jkc, at &cc., before the committing the offence and felo- ny aforesaid, in manner and form aforesaid, by the said A. B., to wit, on at in the county aforesaid, did knowingly, wilfully, and feloniously counsel, hire, and procure (abet, assist, and command) him the said A. B. the offence and felony afore- said to do and commit ; against the peace of the said Common- weahh, and contrary to the form of the statute in such case made and provided.^ ' Draw the indictment against the accessory after the fact, upon the second section, according to this precedent, excepting the allegation of defendant's being accessory afler the fact ; which allegation is to be as follows : " And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D.» of &c., on at well knowing the said A. B. to have committed the offence and felony aforesaid, in manner aforesaid, him the said A. B. did then and there, knowingly, wilfully, and feloniously, harbor, conceal, maintaio> and assist therein ; against the peace fitc, and contrary to the statute &,c." 32 :?50 90D0MT AND BESTIALITY. SODOMY AND BESTIALITY. 324. For Sodomy, committed with a Boy} The jurors &z;c., upon their oath present, that A. B., of &;c., on at in the county aforesaid, in and upon one C. D., a male child, about the age of fifteen, with force and arms, did make an assault, and then and there wickedly and diabolically did commit the crime against nature, by having a venereal affair with the said C. D., by then and there having carnal knowledge of the body of said C/D. against the order of nature; against the peace of said Commonwealth, and contrary to the form of the statute thereof in such case made and provided. 325. For Sodomy, committed ivith a Beast. The jurors &ic., upon their oath present, that A. B., of Stc, on at in the county aforesaid, did commit the crime against nature, by having a venereal and carnal intercourse and copulation with a cow ; and that he the said A. B. did then and there, wickedly and diabolically, and against the order of nature, have carnal copulation with said cow ; against the peace of said Commonwealth, and contrary to the form of the statute thereof in such case made and provided. > On the statute of Massachusetts of 1804, c. 133, § 1. See other prece- dents for these detestable offences, drawn upon the statute of 25 Hen. 8, c. 6 ; 2 Chitt. 49, 50, note (o.) ; 2 Stark. 413 ; and Cro. C. C. 200, 201, (6th Ed.) TREASON. 251 TREASON. 326. Form of an Indictment for Treason, by levying War against the United States} The grand inquest of the United States of America, for the Virginia district, upon (heir oath do present, that Aaron Burr, late of the city of New York, and state of New York, attorney at law, being an inhabitant of, and residing within the United States, and under the protection of the laws of the United Slates, and owing allegiance and fidelity to the said United States, not weighing the duty of his said allegiance, but wickedly devising andintending the peace and tranquillity of the said United States to disturb, and to stir, move, and excite insurrection, rebellion, and war, against the said United States, on the tenth day of De- cember, in the year of our Lord one thousand eight hundred and six, at a certain place, called and known by the name of Blannerhasset's Island, in the county of Wood, and in the district of Virginia aforesaid, and within the jurisdiction of this Court, unlawfully, falsely, maliciously, and traitorously did compass, im- agine, and intend to raise and levy war, insurrection, and rebel- lion against the said United States; and in order to fulfil and bring to effect the said traitorous compassings, imaginations, and intentions of him the said Aaron Burr, he the said Aaron Burr, afterwards, to wit, on the said tenth day of December, in the year aforesaid, at the said island called Blannerhasset's Island, as aforesaid, in the county of Wood aforesaid, in the district of Virginia aforesaid, and within the jurisdiction of this Court, with a great multitude of persons, (whose names to the grand inquest aforesaid are at present unknown,) to the number of thirty persons and upwards, armed and arrayed in a warlike manner, that is to say, with guns, swords, dirks, and other war- like weapons, as well offensive as defensive, being then and there * This is the indictment against Aaron Burr, taken from a copy of the pro- ceedings in that case, transmitted by the President of the United States to Con- gress, in a message of November 23, 1807. The superfluous matter in this in- dictment, probably copied from the obsolete forms in the English precedents, is here omitted. There was another count in this indictment, charging the treason in the same words, with an addition, alleging an overt act, by proceed- ing down the Ohio, with the traitorous intention of taking possession of the city of New Orleans. See 4 Cranch, 471, 476, 481, 487, 488, for a full report of this case, and the exposition of the law of treason against the United States. 252 TREASON. unlawfully, maliciously, and traitorously assembled and gathered together, did falsely and traitorously join and assemble themselves together, agninst the said United States, and then and there, with force and arms, did fsdsely and traitorously, and in a hostile and warlike manner, array and dispose themselves against the said United States ; and then and there, on the day and in the year aforesaid, at the island aforesaid, commonly called Blanner- hasset's Island, in the aforesaid county of Wood, within the said Virginia district, and within the jurisdirlion of this Court, in pur- suance of such their traitorous intentions and purposes aforesaid, he the said Aaron Burr, with the said })ersons so as aforesaid traitorously assembled, armed, and arrayed in njanner aforesaid, most wickedly, maliciously, and traitorously did ordain, prepare, and levy war against the said United States, contrary to the duty of the allegiance and fidelity of the said Aaron Burr, against the constitution, peace, and dignity of the said United States, and against the form of the act of the Congress of the said United States, in such case made and provided, 327. For levying War against the State of Massachusetts : On the Statute 0/1777.^ The jurors for said Commonwealth, upon their oath present, that A. B., of in the county of yeoman, on at in the county aforesaid, he the said A. B. being a person then and there abiding within the State and Common- wealth aforesaid, and deriving protection from the laws of the same ; and then and there owing allegiance and fidelity to the said State and Commonwealth, and being then and there a mem- ber thereof; not regarding the duty of his said allegiance and fidelity, but wickedly devising and intending the peace and tran- quillity of the said State and Commonwealth to disturb and de- stroy, on at in the county of in the said State and Commonwealth, unlawfully, maliciously, and traitor- ously did compass, contrive, conspire, and intend to raise and levy war, insurrection, and rebellion against the said State and Commonwealth, and did then and there unlawfully", maliciously, and traitorously conspire to levy war against the said State and ' See Appendix to the former edition of Massachusetts Laws, vol, li. p. 1046. This statute has never been revised, as appears by the note at the end of the last section of the statue. See 2 Chitt. 83, 81, This indictment in Chitty was for the riots by Lord G. Gordon in 1780. See at«o Cio. €. A. 189; 1 Trem. PC, 1. TREASON. 253 Commonwealth ; and to fulfil and bring to effect the said traitor- ous compassings, intentions, and conspirings of him the said A. B., he the said A. B. afterwards, that is to say, on the said day of in the year of our Lord one thousand eight hundred and at aforesaid, in the county of aforesaid, and within the State and Commonwealth aforesaid, with a great multitude of other persons, whose names are to the jurors aforesaid as yet unknown, to the number of one hundred and upwards, armed and arrayed in a warlike manner, that is to sny, with guns, swords, and other warlike weapons, as well offen- sive as defensive, being then and there unlawfully, maliciously, and traitorously assembled and gathered together, did falsely, maliciously, and traitorously assemble, combine, conspire, and join themselves together against the said State and Common- wealth, and then and there, with force and arms, did wicked- ly, falsely, maliciously, and traitorously, and in a warlike and hostile manner, array and dispose themselves against the said State and Commonwealth ; and then and there, in pursuance of such their malicious and traitorous intentions, conspirings, and purposes, he the said A. B., and the said other persons to the jurors aforesaid unknown, so as aforesaid traitorously assembled, armed, and arrayed in manner afoi'esaid, most wickedly, mali- ciously, and traitorously did ordain, prepare, and levy public war against the said State and Commonwealth, contrary to the duty of the allegiance of the said A. B., against the peace and dignity of the said Commonwealth, and contrary to the form of the statute in such case made and provided. 328. For traitorously adhering to, and giving Aid and Com- fort to the Enemies of the United States ^ The jurors kc, upon their oath present, that on Sic, and long before, and continually from thence hitherto, an open and public war was, and yet is, prosecuted and carried on between the United States of America, and the persons exercising the powers of government in France; and that A. B., late of &lc., a citizen of the said United States, well knowing tlie premises, but not regarding the duty of his allegiance, but as a traitor against the said United States, and wholly withdrawing the allegiance, fidelity, and obedience, which every citizen of the said United States of right ought to bear towards the government and people thereof, and conspiring, contriving, and intending, by all the » 2 Chitt. 68, 73 ; Gordon's Digest, 699, art. 3584. 264 TREASON. means in his power, to aid and assist the persons exercising the powers of government in France, and being enemies of the said United Slates in the prosecution of the said war against the said United States, heretofore, and during the said war, to wit, on &c. aforesaid, and on divers other days and times, as well be- fore as after that day, the said A. B., with force and arms, at &,c., maliciously and traitorously did adhere to, and give aid and comfort to the said persons exercising the said powers of gov- ernment in France, then being enemies of the said government of the said United States ; and that in the prosecution, perform- ance, and execution of his the said A. B.'s treason and traitorous adhering aforesaid, and to fulfil, perfect, and bring the same to effect, he the said A. B., as such traitor as aforesaid, during the said war, to wit, on &,c. aforesaid, and on divers other days and times, as well before as after that day, at &c., with force and arms, maliciously and traitorously did conspire, consult, consent, and agree with one J. H. I., one W. J., and divers other false traitors, whose names are to the jurors aforesaid unknown, to aid and assist, and to seduce and procure others, citizens of said United States, to aid and assist the said persons exercising the powers of government in France, and being enemies to the United States as aforesaid, in a hostile invasion of the dominions of the said United States, and in the prosecution of the said war against the said United States; ^ contrary to the duty of the allegiance of the said A. B., against the peace and dignity of the said United States", and contrary to the form of the statute of the said United States in such case made and provided. 329. For levying Wai- against the United States.^ The jurors he, upon their oath present, that A. B., of &c., not weighing the duty of his allegiance, but entirely withdrawing the obedience which a true and faithful citizen of the United States of America should and of right ought to bear towards the said United States, and the government and constitution thereof; and as much as in him lay, intending to disturb the peace and public tranquillity of the said United States, on at traitorously did compass and intend to raise and levy war, re- bellion, and insurrection against the said United States within ' If there be any other overt act, it must be introduced immediately preced- ing the conclusion of the indictment, with such averments as are contained ia the overt acts set forth in this indictment. • Altered from a precedent in 1 Trem. P. C. 1. TREASON. 255 the same ; and to fulfil and bring to effect his said treasons and traitorous intentions aforesaid, he the said A. B., afterwards, to wit, on the said day of with force and arms, at aforesaid, in the county aforesaid, with a great n)uhitude of other persons, to the jurors aforesaid unknown, lo die number of armed and arrayed in a warlike manner, lo wit, with drums, trumpets, pistols, blunderbusses, swords, guns, and other arms, as well offensive as defensive ; being then and there unlawfully and traitorously assembled and gathered together against the said United States, at aforesaid, in the county aforesaid, on aforesaid, traitorously did prepare, levy, and ordain public war against the said United States ; against the peace of the said United States, and contrary to the form of the statute thereof in such case made and provided. 330. Another Precedent for Treason for levying War} The jurors Sic, upon their oath present, that G. G., of &:c., being a citizen of the United States of America, not weighing the duty of his allegiance, but entirely withdrawing the due obe- dience which every citizen of the said United States should and of right ought to bear towards the government and constitution of the said United States; and wickedly contriving, devising, and intending to disturb the public peace and tranquillity of the said United States, on at unlawfully, maliciously, and traitorously did compass and intend to raise and levy war, insur- rection, and rebellion against the said United States, and the government thereof; and in order to fulfil and bring to effect the said traitorous compassings and intentions of him the said G. G., he the said G. G. afterwards, that is to say, on with force and arms, at aforesaid, with a great multitude of persons, whose names are to the jurors aforesaid unknown, to wit, to the number of five hundred persons and upwards, armed and arrayed in a warlike manner, that is to say, with colors flying, and with swords, clubs, bludgeons, staves, and other weapons, as well offensive as defensive, being then and there unlawfully, maliciously, and traitorously assembled and gathered together against the said government of the said United States, most wickedly, maliciously, and traitorously did ordain, prepare, and levy war against the said United States, and the government thereof; against the peace and dignity of the said United States, and contrary to the form of statute thereof in such case made and provided. ' 2 Cliitt. 83, 84. This is altered from the indictment in the case of Lord O. Gordon, for the riots in London in 1780. See Trem. 3; Cr. C. A.' 189. 256 TREASON. 331. Another Form of an Indictment for Ti-eason by levying War against the United States.^ The jurors &;:c., upon their oath present, that John Fries, late of &.C., in the district of Pennsylvania, yeoman, being an inhabitant of, and residing witiiin the said United Stales, to wit, in the distiict aforesaid, and under the protection of the laws of the said United Stales, and owing allegiance and fidelity to the same; but disregarding the duly of the said allegiance and fidel- ity, and wickedly devising and intending the peace and tran- quillity of the said United Stales to disturb, on the day of at &ic., in tlie district aforesaid, unlawfidly, maliciously, and traitorously, did compass, imagine, and intend to raise and levy war, insurrection, and rebellion, against the said United Stales ; and to fulfil and bring to effect the said traitorous corn- passings and intentions of him the said John Fries, he the said John Fries, afterwards, that is to say, on the said day of at in the district aforesaid, with a great multitude of persons, whose names to the jurors aforesaid are unknown, to the numl)er of one hundred persons and upwards, armed and arrayed in a warlike manner, that is to say, with guns, swords, clubs, pistols, and other warlike weapons, as well offensive as defensive; and being then and there unlawfully, maliciously, and traitorously assembled and gathered together, did falsely and traitorously assemble and join themselves together against the said United States, and then and there, with force and arms, did falsely and traitorously, and in a warlike manner, to wit, with guns, swords, clubs, pistols, and other weapons as aforesaid, array and dispose themselves against the said United States, and then and there, with force and arms, in pursuance of such their trai- torous intentions and purposes, he the said John Fries, with the said other persons, to the said jurors unknown, so as aforesaid traitorously assembled and armed and arrayed in manner afore- said, most wickedly, maliciously, and traitorously did ordain, prepare, and levy war against the said United States, contrary to the duty of die allegiance of the said John Fries ; against the peace of the said United States, and contrary to the form of the statute of the said United States in such case made and provided. * 2 Chitt. 84, (Riley's Ed.) This is the case of /oAra i'^nes. See other pre- cedents, Cro. C. A. 189; the case of Lord G. Gordon, 1 Trem. 1. TRESPASS. 267 TRESPASS. Indictments for trespasses, upon the statute of Massa- chusetts OF 17S5, CH. 28. 332. For cutting down Trees grotving for Ornament : On the first Section of the Statute J- The jurors &z;c., upon their oath present, that A. B. of &ic., on the day of now last past, with force and arms, at in the county aforesaid, did unlawfully cut down and destroy two elm trees, in a certain avenue to the dwelling-house of one C. D. there planted, placed, and growing for use, shade, and ornament, on land not Iiis own or belonging to him the said A. B., to wit, on land of the said C. D., and of which he the said C. D. was the lawful owner ; he the said A. B. then and there, not having the consent therefor from the said C. D., the owner of said land ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 333. Against a person for throwing down and leaving open Bars, inclosing Land not his axon: On the first Section of the Statute. The jurors he, on their oath present, that A. B., of &c., on at in the county aforesaid, with force and arms, did unlawfully throw down certain bars, being part of a fence belonging to and enclosing a certain piece and parcel of land there situate ; and did then and there unlawfully leave open the same bars ; the said land, which was then and there inclosed by the fence and bars aforesaid, then and there belonging to one C. D., and not to him the said A. B., and was not the said A. B.'s own land, and in which he the said A. B. had no in- terest ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.^ ^ See similar precedents on the statute of 9 Geo. 1, c. 22, in 2 Stark. 551, and 3 Chitt. 1116, in ^vhich the offence is charged as a felony .' By the statute of Massachusetts, the offence is punished by a fine, of not less than five nor more than forty shillinns ! 2 The same form will answer for throwing and leaving open " gates " ; or for injuring, marring, and defacing any fence ; using the precise words of the statute descriptive of the particular offence. 33 258 TRESPASS. 334. Against a Person for digging up and carrying away Stones and Gravel, on Land not his oivn : On the first Section of the Statute.^ The jurors &c., upon tlieir oath present, that A. B., of &c., on with force and arms, at B. aforesaid, in the county aforesaid, did unlawfully dig up, and carry away, a certain large quantity, to wit, ten cart-loads, of stones and gravel, in which he the said A. B. then and there had no interest, and which was then and there lying and being on land not his own, but on the land of one C. D. ; against the peace of said Commonwealth, and contrary to the form of the statute in sucli case made and provided. 335. Against a Person for carrying away Goods from a Wharf (or Landing-place), whereof he was not a Proprietor : On the first Section of the Statute. The jurors he, upon their oath present, that A. B., of he, on with force and arms, at aforesaid, in the county aforesaid, did unlawfully take and carry away certain goods, of the value of to wit, [here describe the goods taken away'\ from a certain wharf (or landing-place) there situate, called wharf; he the said A. B. then and there not being a proprietor or owner of said wharf (or landing-place), in which said goods &1C., taken and carried away as aforesaid, he the said A. B. then and there had no interest ; and said goods being taken and carried away, as aforesaid, by him the said A. B., without leave of any person who had interest therein ; against the peace of said Commonwealth, and contrary to the form of the statute, &c. 336. Against a Person for breaking the Glass in a Building not his oivn : On the first Section of the Statute. The jurors for said Commonwealth, on their oath present, that A. B., of &ic., on with force and arms, at B. aforesaid, in the county aforesaid, did unlawfully and wilfully break and de- stroy the glass, to wit, ten panes of window-glass, in a certain building there situate, not his own -, but which building then and ' The same form will answer for digging up «fec. ore, clav, sand, turf, or mould, roots, fruit, or plants ; or for cutting up and carrying away any grass, hay, or corn, as mentioned and described in the same part of the first section of the statute. TRESPASS. 259 there belonged to, and was the property of one C. D. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 137. For wilfully hreaJcing and defacing a Mile-stone : On the second Section of the Statute. The jurors &;c., upon their oath present, that A. B., of &,c., on with force and arms, at B., in the county aforesaid, a certain mile-stone, placed and put up in a public road there, for public convenience, and the information of travellers, did unlaw- fully and wilfully break, deface, and destroy; he the said A. B. not being then and there legally authorized so to do ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 338. For cutting down Trees secretly in the Night time : On the third Section of the Statute.^ The jurors k.c., upon their oath present, that A. B., of &z;c., on with force and arms, at in the county aforesaid, did unlawfully, secretly, and in the night time, cut down and destroy two elm trees, in a certain avenue to the dwelling-house of one C. D., there planted, placed, and growing, for use, shade, and ornament ; on land not his own, or belonging to him the said A. B., to wit, on the land of one C. D., and of which he the said C. D. was then and there the lawful owner ; he the said A. B. not having the consent therefor from him the said C. D,, the lawful owner of said land ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 339. Forms of Indictments upon the additional Act of Massa- chusetts, for preventing Trespasses, 0/I8I8, Ch. 3, § 2. The jurors &;c., upon their oath present, that A. B., of Stc, on at having entered upon a certain garden belong- ing to one C. D,, there situate, and in his the said C. D.'s pos- session, did then and there unlawfully and wrongfully take there- from a certain quantity of fruit, to wit, [here describe the quantity and kind of fruit,'] without the permission of the said C. D., the 1 This third section of the statute is applicable to all the offences before men- tioned, when committed secretly, or in the night; and when thus committed, the fine is to be recovered by indictment. 260 TRESPASS. owner thereof; which fruit was then and there cultivated in the said garden, for the use of the owner, the said C. D. ; against the peace of said Commonweahh, and contrary to the form of the statute in such case made and provided. 340. For breaking and injuring Trees and Shrubs : On the third Section of the SjLatute o/lSlS, Ch. 3. The jurors &c., upon their oath present, that A. B., of &c., on _ at having entered upon an orchard there situate, belonging to and in the possession of one C. D., and being en- tered upon and into said orchard as aforesaid, did, without the permission of the said C. D., the owner thereof, and with intent to injure him the said C. D., unlawfully and wantonly break, bruise, cut, mutilate, injiu-e, and destroy a large number, to wit, ten fruit trees, then and there cultivated in safd orchard, for the use of the said C. D., the said owner, and which were then and there in the orchard aforesaid standing and growing ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 341, For entering on Grass-land, and carrying away Hay: On the second Section of the Statute of ISIS, Ch. 3. The jurors &c., upon their oath present, that A. B., of Sic, on at having entered on a certain piece of grass-land, belonging to one C. D., containing four acres, there situate, and in the possession of the said C. D., did then and there unlaw- fully and wrongfully take therefrom a certain quantity of grass, to wit, three tons of grass, of the value of tifty dollars, wfthout the permission of the said C. D., the owner thereof; which grass had been raised, cultivated, and grown, upon the grass-land aforesaid, for the use of the said C. D., the lawful owner thereof; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 342. For committing any of the Trespasses mentioned in the foregoing Act of 1818, c. 3, on the Lord's Day: On the fourth Section of the Statute. The jurors &c., upon their oath present, that A. B., of&c, on it being Lord's day, at leaving entered upon a certain garden belonging to one C. D., there situate, and in his the said C. D.'s possession, did then and there, on the said Lord's day, unlawfully and wrongfully take therefrom a certain TRESPASS. 261 quantity of fruit, to wit, [here insert and describe the nature and quantity of the fruit^ without the permission of him the said C. D., the owner thereof; which fruit was then and there culti- vated in the said garden, for the use of the owner, the said C. D., and was taken away on the Lord's day, as aforesaid, by him the said A. B. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 343. For committing a Trespass mentioned in the Act of \8 IS, c. 3, in the Might time : On the fourth Section of the Statute. The jurors he, upon their oath present, that A. B,, of&ic. on in the night time of said day, that is to say, between sunsetting and sunrising of said day, at having entered upon a certain garden belonging to one C. D., there situate, and in his the said C. D.'s possession, did then and there, in ihei night time, between sunsetting and sunrising of the said day, unlawfully and wrongfully take therefrom a certain quantity of fruit, to wit, [here state the nature and quantity of saidfruit,^ without the permission of him the said C. D., the owner thereof; which fruit was then and there cultivated in the said garden, for the use of the owner, the said C. D., and was taken by the said A. B. in the night time, between sunsetting and sunrising as afore- said ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. Note. By the 4th section of the statute, trespasses com- mitted on the Lord's day, or between sunsetting and sunrising, in the night time, are liable to double penalties and forfeitures. The offences in the first section of the Act are cognizable by justices of the peace ; no precedent is therefore given for them. The penalties and forfeitures in the 2d and 3d sections of this statute, are to be recovered by indictment, or information in the Court of Common Pleas ; the commencement of which is lim- ited to one year from the time the offence was committed. The foregoing forms may be adopted for all the other offences created by the statute. 262 USURY. USURY. 341. Form of an Indictment for Usury. ^ The jurors &;c., upon their oath present, that on one A. B., of k,c., did lend to one C. D. the sum of dol- lars, and that the said C. D., for the security of the payment of said sum of dollars, with lawful interest for the same, to the said A. B. afterwards, to wit, on the day of at in the county aforesaid, did give and deliver to the said A. B. a certain promissory note, bearing date the day and year last aforesaid, by which said note the said C. D. did promise to • This precedent is drawn on the statute of Massachusetts of 1783, c. 55, which is copied nearly verbatim from 12 Ann. c. 16. See similar precedents in 2 Chitt. 548, 549; 1 Trem. P. C. 269; Cro. C. C. 692, (6th Ed.) See note (r) in the above mentioned precedent in 2 Chitt. and the authorities and remarks therein upon the nature of the offence. The statute of Massachusetts, for the restraining of the taking of excessive usuiy, is nearly verbatim with 12 Ann. c. 16. No mode is pointed out in the statute of 12 Ann for the recovery of its penalties. The statute of Massachu- setts provides that its penalties shall be recovered by indictment, or action of the case ; one moiety to the Commonwealth and the other to the prosecutor ; and there is a proviso in the last mentioned statute, " that nothing in this act shall extend to the letting of cattle, or other similar usages among farmers ; or to maritime contracts among merchants : as bottomry, insurance, or course of exchange, as hath been heretofore accustomed." To constitute the offence, three things must occur : 1. A contract between the parties. 2. Monies or other things lent. 3. Above the rate of legal interest actually received by the lender for forbearance. Hawk. b. 1, c. 28, § 8, note (I.) In the case of ITie Cominonwealth v. Cheney, reported in 6 Mass. R. 348, no person can be held to bail before a magistrate in Massachusetts for the offence of usury. The reasons for this opinion are given by Chief Justice Par- sons in delivering the opinion of the court in that case, to which the reader is referred. By a subsequent statute of Massachusetts of 1788, c. 12, made for the limita- tion of actions upon penal statutes, all prosecutions for penalties created by this statute, if the suit be by action qui tarn, are limited to one year, and to two years, if it be by indictment. It was anciently considered unlawful for a Chistian to take any kind of usury ; and whoever was guilty of it, was liable to be punished by the censures of the church; and that, if after death a person was found to have been a usurer while living, all his chattels and lands were forfeited ! Hawk. b. 1, c. 32, § 4, who cites 3 Inst. 151 ; 2 R. Abr. 800 ; 2 Inst. 506. USURY. 263 pay to him the said A. B., or his order, the sum of with lawful interest for the same, in six months after the date of the same note ; and that the said A. B., afterwards, to wit, on at aforesaid, unlawfully, unjustly, and corruptly did re- ceive, accept, and take, of and from the said C. D., the sum of dollars and cents, of the monies of him the said C. D., and by way of corrupt bargain and loan, for the forbear- ing and giving day of payment of the said sum of from the said day of until the said day of which said sum of so as aforesaid received and taken by the said A. B. for the forbearing and giving day of payment of the said sum of from the said day of until the said day of did exceed the rate of six dollars for the loan of one hundred dollars for the year ; against the peace of the said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. INFORMATIONS IN CRIMINAL CASES. Form of an Information in a Criminal Case.^ Commonwealth of Massachusetts. Middlesex ss. At the Supreme Judicial Court begun and hold- en at within and for the county of Middlesex on the Tuesday of in the year of our Lord one thousand eight hundred and Be it remembered, that P. M., Esq., Attorney General of the said Commonwealth, [^or the Solicitor General, if he be the officer who files the information,^ being present here in court, on behalf of the said Commonwealth, gives the said Court to under- stand and be informed, that C. D., of &c., on &c., [here describe the offence with the same technical accuracy as in an indictment ; and conclude each count the same as in an indictment. If there be several counts, commence each as follows : ] And the said At- torney \or Solicitor^ General, who prosecutes as aforesaid, fur- ther gives the court here to understand and be informed, that the said C. D., on Sic, at &c., [state the offence as in a second count in an indictment, and conclude the whole as follows : ] Whereupon the said Attorney [or Solicitor'] General, who pros- ecutes for the said Commonwealth as aforesaid, prays the con- sideration of the court in the premises ; and that due process of law may be awarded against the said C. D. in this behalf; and that he may be held to answer to the said Commonwealth, » 2 Chitt. 6 ; 2 Lord Raym. 1461. See form of 2d count, Lord Raym. 1462. INFORMATIONS IN CRIMINAL CASES. 265 touching and concerning the premises aforesaid, and do therein • what to law aiid justice shall appertain.^ P. Yi., Attorney General of Massachusetts. * There is no variance in the general form of an inforniation in criminal cases. The fiame of it must of course be the same in all cases where it will lie, as for the prosecution of a misdemeanor of any description. When you have pro- ceeded as far as the words, " gives the court to understand and be informed," nothing is necessary but to turn to the precedents of indictments, and take the alleg.itions and descriptions of the offence you are about to prosecute, and transfer them into the information ; for the same technical accuracy is required in an information as in an indictment. For these reasons, it is not necessary to add the mere skeletons of informa- tions in criminal cases to this collection. This mode of prosecuting crimes is not, iu my apprehension, either congenial or consistent with the nature of our government and institutions. If the practice were restricted to corporations, it might not be objectionable. But if it were extended here, either in law or prac- tice, as it is in England, to every species of crime excepting treason, mis- piision of treason, and felony, the protection of the innocent from groundless and malicious prosecutions, which we think we derive from the institution of grand juries, might be endangered. The instructions which are given by our judges in their charges to the grand jury to accuse no one without full and satisfactory evidence of his guilt, is one of the most admirable features in the administration of public justice. The institution of grand juries has existed in England for nearly a thousand years, and in this country ever since its settle- ment. The power of the attorney general in England, in regard to the prosecution of crimes by information, would be viewed with great jealousy in this country. He is the sole judge of what public misdemeanors he will prosecute. 1 Chitt. 845; 4 Bl. Com. 312, Bac. Abr. Information, A. He may file an information against any one whom he thinks proper to select, without oath, without motion, or opportunity for the defendant to show cause against the proceedings. Id. Ibid. Nor is he in any case liable to an action for a groundless or malicious prosecution. 1 Chitt. 846 ; 1 T. R. 514, 535. So independent is his author- ity, that the court will not quash his information on the motion of the defend- ant; but will compel him to plead or demur. 1 Salk. 372 ; Bac. Abr. Informa- tion, A. ; 1 Chitt. 847. The information, being a mere assertion of the ofiScer who files it, may be amended at any time before trial, without the consent of the defendant. These amendments may be very extensive and material ; counts may be struck out, and new ones inserted. 1 Chitt. 868 ; 4 Burr. 2528. Power to this extent, concentrated in a single individual, and that individual not only the officer, but the minister of the government which he serves, would not be endured in this country. What is the extent of the power of a public prosecutor under our constitution of government has never, to my knowledge, been tested. There is a general rule stated in 5 Mass^ R. 257, which is to this efTect : " that 34 266 INFORMATIONS QUO WARRANTO. INFORMATIONS QUO WARRANTO. Commonwealth v. John Breed} To the Honorable the Justices of the Supreme Judicial Court, begun and holden at Boston, within the county of Suffolk, on the first Tuesday of March, in the year of our Lord one thousand eight hundred and twenty-six, and continued by adjournment to Tuesday, the eighteenth day of July then next following. Be it remembered, that Daniel Davis, Solicitor General of the Commonwealth of Masachusetls, comes into Court and brings with him here into Court a certain resolveof the General Court of said Commonwealth, passed on the twenty-sixth day of January ,- in the year of our Lord one thousand eigiit hundred and twenty- six, containing, among other things, the following : " Resolved, that the Solicitor General be instructed to com- mence proper process in the Supreme Judicial Court, to ascertain whether the proprietors of the bridge from Belle Isle to Chelsea, have forfeited their right to maintain the same." Whereupon the said Solicitor General, by virtue of the power and authority and in pursuance of said resolve, gives the said Court here to understand and be informed, that there is, and immemorially hath been, a certain arm of the sea, extending from the open harbour of the city of Boston, in the county of Suffolk, towards and unto the town of Chelsea in the county of Suffolk, and running by the shores of the said town of Chelsea, and bounding northwardly and northwestwardly on said shores, up to certain mills, landing places, and marshes in said town situate, and separating the shores of the town of Chelsea from the westwardly shores of a certain island called Belle Isle, lying southeastwardly from said town, and that the said arm of the sea is flowed and reflowed by the tides ; and is, and has been, from time immemorial, an open and common highway for all citizens of this Commonwealth to pass and repass with their allpuhlic misdemeanors which maybe prosecuted by indictment, may be prose- cuted by information, in behalf of the CommonweaUh ; unless the prosecution be restrained by the statute to indictment." There may be such a rule ; but I confess I have never met with it in the course of long official experience ; and if it exists, I should doubt its applicability to the principles and policy of our government. » 4 Pick. 460. INFORMATIONS QUO WARRANTO. 267 boats, barges, lighters, sloops, schooners, and other vessels, loaded and unloaded, at all times, at the will and pleasure of said citizens ; and has been so used and enjoyed by such citizens and all other persons having occasion to pass. And that one John Breed of Boston, in the county of Suffolk, merchant, well knowing the premises, but intending to impede such passing, and to prevent such immemorial use of the said highway, as an arm of the sea as aforesaid, did, with such intent, at said Chel- sea, on the first day of October, in the year of our Lord one thousand eight hundred and twenty-four, erect, build, keep up, and maintain, a certain bridge, constructed of wood, from said island called Belle Isle, in, across, and upon said arm of the sea, to the shores of the town of Chelsea aforesaid, and still doth keep up and maintain the same bridge ; whereby the said arm of the sea and common and ancient highway hath been, and yet is, obstructed and stopped up, so that the said citizens and others who have occasion through the same to pass with their vessels as aforesaid, have been and still are obstructed and hin- dered, and prevented from passing and repassing and sailing in and with said boats, barges, and vessels, in and along said arm of the sea and common highway, as they otherwise could and lawfully might do ; and that said John Breed hath usurped, and still doth usurp upon the government of the said Commonwealth, to have and maintain the said bridge ; to the great damage and prejudice of the rights of the said Commonwealth, and of the cit- izens thereof. Whereupon the said Solicitor General prays the advice of the Court here in the premises, and for due process of law against the said John Breed in this behalf to be made, to answer to the §aid Commonwealth, by what warrant he claims to have and maintain and keep up the bridge aforesaid, in, across, and upon the said arm of the sea and common and ancient highway.^ DANIEL DAVIS, Solicitor General. ' An information in the nature of a quo warranto may be filed in any county where the court is in session ; but the process must be made returnable to, and tried in the county where the respondent lives. Commonwealth v. Smead, 11 Mass. R. 74. An information resembles not only an indictment, in the correct and techni- cal description of the offence, but also an action qui tarn, in which the inform- er must show the forfeiture and its appropriations. Commonwealth v. Mti- aenger, 4 Mass. R. 465. It is a general rule, that all public misdemeanors which may be prosecuted by indictment, may be prosecuted by information in behalf of the Common- 268 INFORMATIONS qUO WARRANTO. Plea to the foregoing Information. And now the sold John Breed comes and defends, when, where, he. And having heard the said information read, says, that under color of the premises contained ir; the said informa- tion he is greatly troiililed, and this by no means justly ; because, protesting that tlie said inforn)ation and the matters therein con- tained are not stiflicient in law, and that he need not, nor is he obliged by the law of the land, to give any answer iherelo, yet lor plea in this behalf the said Breed says, he does not appre- hend that the said Solicitor General should or ought to have, or prosecute his said action against him, because he says, that the legislature of the Commonvveahh of iNlassachusetts, at their session holden in the month of June, in the year of our Lord one thousand eight hundred and sixteen, and on the nineteenth day of said morUh, passed an act in the following words to wit : " An Act to authorize John Breed to build a Bridge from Belle Island to Chelsea. "Sect. 1. Be it enacted by the Senate and House of Rep- resentatives in General Court assembled, and by the authority of the same, that John Breed of Boston (the proprietor of Belle Island), and his heirs and assigns be, and they hereby are au- thorized and empowered to build and keep in repair at all times, a bridge convenient for the accommodation of the proprietors of Belle Island, from the westerly part of the said island to the head land in Chelsea, at a point in the farm of Samuel Cary, Esq. late of said Chelsea, deceased. " Sect. 2. Be it further enacted, that said bridge shall be built with a draw, not less than fifteen feet wide, made of suita- ble materials, and conveniently placed for the accommodation of such vessels as may have occasion to pass between said island and Chelsea. And the owner or owners, proprietor or proprie- tors of said bridge, at his and their own expense, shall, at^ all times when necessary, have said draw raised for the convenient passing of vessels through the same ; and in case any vessel wealth, unless the prosecution is restrained by the statute to indictment, (qu.) Commonwealth v. Inhabitants of Waterborough, 5 Mass. R. 257. In informations on penal statutes, for forfeitures incurred by malfeasance, a"-ainst two or more persons, charging them all with the malfeasance, on not guil- ty pleaded, the jury may convict some, of the whole or of part of the offence charged, and may acquit others ; for the malfeasance in the information is several, as well as joint ; and each defendant incurs a forfeiture in proportion to his own offence. Hill et ux. v. Vavis et ah, 4 Mass. R. 140. INFORMATIONS QUO WARRANTO. 269 about to pass said bridge shall be detained at the draw more than one hour, the proprietor or proprietors of said bridge shall forfeit and pay to the owner or owners of sucli vessel, a sum not less than three dollars, nor more than ten dollars ; to be recov- ered by action of debt in any court proper to try the same ; and shall also be liable to pay all damages wliich the owner or owners of such vessel shall or may sustain by reason of such detention, to be recovered in an action of the case in any court proper to try the same ; and if said John Breed, his heirs and assigns, shall, lor the space of three years from the passing of this act, fail or neglect to erect said bridge, then this act sliall be null and void, and if the said bridge shall be erected within said term of three years, then the legislature reserve the right to repeal this act, after the expiration of twenty years from the time of passing the same." And the said John Breed further saith, that immediately, and within three years after the passing of said act, he did pro- ceed to erect, build, and finish a bridge convenient for the accommodation of the proprietors of Belle Island, from the westerly part of said island, to the hard land in Chelsea, at a point in the farm of Samuel Gary, Esq. late of said Chelsea, deceased, and that he has at all times kept the same in repair. And the said John Breed further saith, that the said bridge was buili with a draw not less than fifteen feet wide, made of suitable materials, and conveniently placed for the accommodation of such vessels as had occasion to pass between said island and said Chelsea ; and that he, the said Breed, has, at his ovi'n ex- pense, at all times when necessary, had the said draw raised, for the convenient passing of ve5sels through the same. And the said Breed further saith, that he has at all times conformed to the law in respect of said bridge, and observed, done, and per- formed all and singular the things he was bound to observe, do, or perform by force of said act, or the laws of this Common- wealth, in respect of said bridge, and that the said bridge by him made in conformity to the said act, as aforesaid, is the same bridge that is complained of in the information aforesaid ; and that he the said Breed did rightfully, and according to the pro- visions of law, said act, and the power and privilege thereby granted him, erect, build, keep up, and maintain the said bridge, as well and lawfully he might do. All and singular of which matters above in pleading alleged, the said Breed is ready to verify and prove to this Court. Wherefore he prays judgment, that the franchise and privileges by him claimed and exercised as aforesaid, may be allowed and adjudged to him, and that he 270 INFRORMATIONS QUO WARRANTO. may be dismissed and discharged of and concerning the prem- ises in the said information slated and contained.^ Information, quo xonrranio, ngninst S. F., Esq. for exercising the Office of Judge of i'robnte, without ff arrant.^ [State in the caption the name of the county, the covrt, and the time of holding it. and then proceed ] Be it rernenibcred, that Daniel Davis, Solicitor General of said Commonweahh, comes into Court, in his proper person, * There was a replication to this plea, which is not here inserted. The ma- terial fiicts alleged in the plea were not denied, and the proceedings ended in a special verdict, in which all the facts in the case were found. It was afterwards argued, and decided in favor of the respondent. The case is reported in 4 Pick. 460, 464, 465, in which the Court state, in conclusion, that the respondant " has not forfeited his right, by any misuser of it." 2 This case is reported in 10 Mass. R. 290. In this case the following points were decided. 1. That where an information in the nature of a quo warranto recites an order of the House of Representatives, requesting the Solicitor General to file such information, and he stated that he filed the same by virtue of the authori- ty of, arid in compliance with the said order, the Court refused to quash the information, as not duly filed ; considering that it was, notwithstanding such recital and statement, filed by the Solicitor General ex officio. 2. That an information quo warranto lies as well against officers appointed by the supreme executive authority of the Commonwealth, as against those holding corporate offices or franchises. 3. That the Attorney and Solicitor General have full authority to file an information of this kind by virtue of the general powers of their offices, without any interposition of the legislature ; and that an information for the purpose of dissolving a corporation, whether created by charter, under the seal of the Co.mmonwealth, or by statute of the legislature, may be prosecuted under the authority of the legislature, or by the Attorney or Solicitor General, acting ex officio in behalf of the Commonwealth. 4. That the Supreme Court have jurisdiction of all informations quo warran- to, whether for dissolving corporations, or for removing persons from any oflBce, which they claim to hold, and in whatever cases such information lies. An information quo warranto lies against those only who claim to exercise some public office or authority. Commonwealth v. Dearborn et al., 15 Mass. R. 125. The Court refused to award an information quo v>arranto against an officer holding an election for a year only ; because, by the organizaUon of the terms of the Court, they could not come to a decision of the question, until a year had expired. Commonwealth v. Mhearn, 3 Mass. R. 285. An information for the purpose of dissolving a corporation, or of seizing its INFORMATIONS QUO WARRANTO. 271 and brings with him into said Court a certain order of the House of Representatives of said Commonwealth, which is in the words following, that is to say : " In the House of Representatives, February 4, 1813, " Ordered, that the Attorney or Solicitor General of the Com- monwealth be requested to file informations in the nature of a quo warranto, to know by what authority the Hon. Samuel Fowler exercises the office of Judge of Probate of Wills &c. in the county of Hampden, and also Chief Justice of the Court of Sessions in said county; and also by what authority " [c?iyer5 other persons, naming them, exercise sundry offices in said county]. Whereupon the said Solicitor General, by virtue of the power and authority of, and in compliance with said order of the House of Representatives, and of the request therein con- tained, gives the said Court to understand and be informed, that Samuel Fowler, of Westfied, in the said county of Hampden, Esq. for the space of six months now last past, hath used and exercised, and still doih use and exercise, the office of Judge of Probate of Wills and granting administrations upon intestate es- tates, in the said county of Hampden, without any warrant, or lawful authority therefor : which said office, and the powers, autlioiiiies, and emoluments to that office appertaining,, the said Samuel Fowler, Esq. during all the lime aforesaid, hath usurp- ed, and still doth usurp, upon the government of the said Com- monwealth ; to the great damage and prejudice of the lawful authority thereof. Whereupon the said Solicitor General prays the advice of the franchises, whether created by charter or by a statute of the legislature, may be prosecuted under the authority of the legislature, to be exercised in each par- ticular case, or by the Attorney or Solicitor General, acting ex officio in behalf of the Commonwealth, and can be prosecuted in no other way. Common' wealth V. Union Ins. Co. in JVewburyport, 3 Mass. R. 230. If a person be appointed to a public office by the governor, when there is no such office in existence, and he claims to hold it by virtue of such appointment, after the office has been created, he may be removed upon information quo warranto. Commonwealth v. Fowler, 10 Mass. R. 300- As where the legislature passed an act, erecting a number of towns into a new county, and provided that the act should be in force after a particular day, but made no provision for appointments to office within such county, before the act came into operation, it was held that such appointments, before the act came into operation, were unconstitutional and void ; and that persons claiming to hold offices under such appointments were liable to be removed upon infor- mation quo warranto. Commonwealth r. Fowler, 10 Mass. R. 300. 272 INFORMATIONS QUO WARRANTO. Court here in the premises ; and for due process of low ngainst the said Samuel Fowler, Esq , in this bcliall to he made and ordered, to answer to the said Cominonueallh, by what war- rant he claims to have, use, exercise, and enjoy the aforesaid office. DANIEL DAVIS, Solicitor General. To this information, after a motion to quash it, which was overruled, the respondent fdcd the following plea. That heretofore, on and before he exercised or assumed to exorcise the said office of Jiuls^e o( Probate of wills &c., he was duly and lej^nlly nomin;Ucd and appf)inled to the same office, by his Excellency, Elbridge Gerry, Esq., then and long afterwards Governor of the said Commonwealih of Massa- chusetts, by and with the advice of council ; and was duly cotn- rnissioned thereto, as by the commission signed by the said governor, and attested by the secretary of the Comnionwealib, with the great seal of tlie Commonwealih aflixed thereto, which the said Samuel Fowler brings here into Court, for the inspection of the Court, is manifest and appears. And the said Samuel avers, that after he was so appointed and commissioned as aforesaid, and before he entered on the discharge of the business of said office, viz., on the third day of May in the same year, he took and subscribed the declaration of oaths prescribed by the constitution of said Commonwealth, and the laws of the United States, to be taken and subscribed by any person appointed or commissioned to any judicial, executive, military, or other office under the government, before his Honor, WilfuHn Gray, Esq., then being Lieutenant Governor of said Commonwealth, and then being duly authorized to administer the same, as by the certificate of the snid Lieutenant Governor, on the same commission, is manifest and appears. Without this, that the said Samuel usurped upon the said Commonwealth, as in and by the said information above is supposed. All which the said Samuel is ready to verify. Wherefore he prays judg- ment &ic. To this plea, the Solicitor General demurred generally ; and the respondent joined in demurrer. It was argued and finally decided in favor of the government. INFORMATIONS QUO WARRANTO. 273 Form of a Judgment upon an Information in the JVature of a Quo Warranto : Entered by Order of Court iii the Case of The Commonwealth v. Fowler.^ " It is considered by the Court here, that S. F., Esq., do not, in any manner, intermeddle or concern himself in and about the holding of, or exercising the said office of judge of probate of wills and granting administration on the estates of persons deceased, in the said county of Hampden, in the said information specified, in virtue of the said supposed commission by him mentioned in his plea in bar aforesaid ; but that the said S. F., Esq., be absoluteiy forejudged and excluded from holding and exercising the same office ; and that the said Commonwealth recover costs, taxed at," he. The People of the State of New York, ex relatione, The Attor- ney General, against The Utica Insurance Company.^ Be it remembered, that [here state the caption of the informa- tion according to the form in the court where it is to he used.'\ Martin Van Buren, Attorney General of the people of the State of New York, who sues for the said people in this behalf, comes here before the justices of the people of the state of New York, of the Supreme Court of Judicature of the same people, on at and for the said people gives the said court here to understand and be informed, tiiat the Utica Insurance Company, for the space of six months now last past, and more, have used, and still do use, without any warrant, charter, or grant, the following liberties, privileges, and fran- chises, to wit, that of becoming proprietors of a bank or fund, for the purpose of issuing notes, receiving deposits, making dis- counts, and transacting other business which incorporated banks may and do transact by virtue of their respective acts of incorpo- ration. And also that of actually issuing notes, receiving depos- its, making discounts, and carrying on banking operations, and other monied transactions, which are usually performed by in- corporated banks, and which they alone have a right to do ; of all 1 11 Mass. R. 339. See also 10 Mass. R. 290. 2 15 Johns. R. 35. 35 274 INFORMATIONS QUO WARRANTO. which liberties, privileges, and franchises aforesaid, the said Uiica Insurance Company, during all the time aforesaid, have usurped, and still do usurp upon the said people ; to their great damage and prejudice. Whereupon the said Attorney General of the people, prays advice of the said court in the premises, and due process of law against the said Utica Insurance Compa- ny, in this behalf to be made, to answer to the said people, by what warrant they claim to have, use, and enjoy the liberties, privileges, and franchises aforesaid.^ The Plea. And now at this day, to wit, on come the said Utica Insurance Company, by Nathan Williams, their Attorney, and having heard the said information, complain, that they are, by color thereof, grievously used and disquieted, and this unjustly; because, protesting that the said information and the matters therein contained are insufficient in law ; to which information the said Utica Insurance Company are not bound by the law of the land to answer ; yet for plea in this behalf, the said Utica Insurance Company say, that by a certain act of the legislature of the people of this State, passed on the 29th day of ?Jarch, 1816, they, the said Utica Insurance Company, were constituted and declared to be, from the passing of the said act, until the 1st Tuesday of July, A. D. 1836, a body politic and corporate in fact and in name, and by the name of " The Utica Insurance Company." And the said Utica Insurance Company further say, that by force of the said act of the said legislature, and the provisions thereof, they still continue to be, and are, a body pol- itic and corporate, in fact and in name, and are entitled to do all lawful acts, and to enjoy all the rights, privileges, franchises, and immunities allowed to them, or conferred on them, by the act aforesaid, or by the law of the land. By virtue whereof, the said Utica Insurance Company, for all the lime in the said information mentioned, have used, and still do use, the rights, liberties, privileges, and franchises of becoming proprietors of a bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, and transacting other business, which in- corporated banks may do and transact by virtue of their acts of incorporation, by investing in the said bank and business the funds of the said Utica Insurance Company, which the business of insurance, in said act mentioned, did not actively employ ; and * See note (1) at the end of the following plea. INFORMATIONS QUO WARRANTO. 275 the said Utica Insurance Company have, during all the said time, used, and still do use, the liberties and privileges of actually issu- ing notes, other than notes which grant or stipulate to pay annui- ties upon any life or lives; and of actually issuing notes, receiv- ing deposits, making discounts, and carrying on banking opera- tions, and other nionied transactions, which are usually performed by incorporated banks. [The defendants then go on to traverse every fact alleged in the information ; and traverse the whole, by denying that they have usurped the liberties, privileges, and fran- chises upon the people ; and pray for what is tantamount to being metamorphosed from an insurance company, into a bank.Y [To this plea, the Attorney General very naturally demurred, and the Court, still more naturally, adjudged it bad.] * In this case the court decided, among other things, 1. That an information in the nature of a quo warranto lies against an in- corporated company, for carrying on banking operations, without authority from the legislature. 2. An information in the nature of a quo warranto for usurping a franchise, needs show no title to the people in the franchise ; but it lies with the defendant to show his warrant for exercising it. 3. A thing within the intention, is as much within the statute, as if it were within the letter ; and a thing within the letter, is not within the statute, if contraiy to the intention of it. 4. A statute restraining any person from doing certain acts, applies equally to corporations or bodies politic, although not mentioned. 5. An act to incorporate an insurance company does not authorize the com- pany to institute a bank ; and if they do, they usurp a franchise ; and on an information in the nature of a quo warranto being filed, judgment of ouster will be rendered against them. 276 PLEAS &.C. IN CRIMINAL CASES. PLEADINGS IN CRIMINAL CASES. It remains to add to this collection the several pleas in use in criminal prosecutions. These are, — Pleas to the Juris- diction of the Court ; Pleas in Abatement ; and Special Pleas in Bar ; Replications, Demurrers, and Joinder in Demurrers ; Certiorari ; Writ of Error, and Writs of Habeas Corpus. Plea to the Jurisdiction of the Court, And the said C. D. in his proper person comes into Court here, and having heard the said indictment read, saith, that the Court here ought not to take cognizance of the offence in the said indictment above specified ; because, protesting that he is not guilty of the same, nevertheless the said C. D. saith [^proceed here to state the matter of the plea; ] and this the said C. D. is ready to verify. Wherefore he prays judgment, if the court here will or ought to take cognizance of the indictment aforesaid ; and that he may be discharged, and permitted to go without day. Replication to the above Plea. And hereupon the said Attorney General, on behalf of the said Commonwealth, says, that notwithstanding any thing by the said C. D. above in pleading alleged, this Court ought not to be precluded from taking cognizance of the indictment aforesaid, because he says, [here state the matter of the replication, conclud- ing to the country, or with a verification, as the replication may require; ] wherefore he prays judgment, that the said C. D. may be held to answer to said indictment. Plea in Abatement for a Misnomer. And now James Long, who in this indictment is called and indicted by the name of George Long, in his proper person comes into Court here, and having heard this indictment read, saith that his name is James ; that he was baptized by the name of James ; and that by the Christian name of James hath always since his baptism hitherto been known and called ; without this, that he the said James Long, now is, or hitherto hath been, PLEAS &1C. IN CRIMINAL CASES. 277 called or known by the said name of George, as by the said indictment is supposed ; and this the said James Long is ready to verify ; wherefore he prays judgment of said indictment, and that the same may be quashed.^ Replication to the Plea of Misnomer. • And hereupon the said Attorney General, on behalf of said Commonwealth, saith, that the said indictment, by reason of any thing by the said James Long in his plea aforesaid above alleged, ought not to be quashed ; because he saith, that the said James Long was, long before, and at the time of the prefer- ring of said indictment, and still is, known as well by the name of George Long, as by the name of James Long ; and this the said Attorney General for the said Commonwealth prays may be inquired of by the country.^ PLEAS IN BAR, IN CRIMINAL CASES. Special pleas in bar go to the merits of the prosecution, and give a reason why the party ought not to answer at all. These are of three kinds, namely, a Former Acquittal ; a Former Conviction ; and a Pardon.^ The plea of a Former Attainder is not known in this country. ' It is usual, but not essential, that the plea should state that defendant was baptized by such a name. Alleging that it is his name, and that by that name he has always been called and known, is sufiBcient. 6 Mod. 116; 1 Salk. 6. For a plea of surname, see Archib. 46 ; Cro. C. C. 46, (6th Ed.) - Archib. 46, 47. See 2 Stark. 704, 705, for a plea in abatement for a wrong addition, and that defendant has no addition. 3 1 Chitt. 452 ; 4 Bla. Cora. 328, 329. The form and nature of these pleas are stated in 1 Chitt. 432, to which, together with the authorities there quoted, the reader is referred. 278 PLEAS he. IN CRIMINAL CASES. Plea of Auterfois Acquit} And the said A. B. in his proper person comes into Court here, and having heard the said indictment read, saith, that the Commonwealth ought not further to prosecute tlie said indictment against him the said A. B., hecause he saith, that heretofore, to wit, at tlie Supreme Judicial Court, hohlen at &c., [here recite the record of the former judgment and acquittal, verbatim, from the beginning to the conclusion of it; then proceed thus,'] as by the record thereof more fully and at large appears ; which said judgment still remains in full force and effect. And the said A/B. avers, and in fact sailh, that he the said A. B., and the said A. B. so indicted and acquitted as aforesaid, are one and the same person, and not other and different persons ; and that the (felony or larceny) of which the said A. B. was indicted and acquitted as aforesaid, and the (felony or larceny) of which the said A. B. is now indicted, are one and the same, and not different (felonies or larcenies ; ) and this the said A. B. is ready to verify ; wherefore he prays judgment, and that he may be dismissed and discharged, by the Court here, from the premises in the present indictment specified. Plea of Auterfois Convict. And the said A. B. in his proper person comes into Court here, and having heard the said indictment read to him, saith, that the Commonwealth ought not further to prosecute the said indictment against him the said A. B., because he saith, that heretofore, to wit, at the Supreme Judicial Court, holden &;c., [here recite the record of the former judgment and conviction verbatim ; then proceed as folloivs,'] as by the record thereof more fully and at large appears ; which said judgment still remains in full force and effect. And the said A. B. avers, that he the said A. B., and the said A. B. so indicted and convicted as last aforesaid, are one and the same person, and not other or different ; and that the offence (felony or larceny) of which he the said A. B. was so indicted and convicted as aforesaid, and the offence (felony or larceny) of which he is now indicted, are one and the same, and not different offences, (felonies or larce- nies; ] and this the said A. B. is ready to verify ; wherefore he 1 This plea is taken from Aichb. 52, 53. PLEAS &:C. iN CRIMINAL CASES, 279 prays judgment, and that he may be discharged and dismissed by the court here from the premises in the present indictment specified. Demurrer to an Indictment. And the said A. B., in his own proper person, comes into Court here, and having heard the said indictment read, saith, that the said indictment, and the matters and things therein contained, in manner and form as the same are therein stated and set forth, are not sufficient in law ; and tliat he the said A. B. is not bound by the laws of the land to make answer to the same ; and this he is ready to verify ; wherefore, for want of a sufficient indictment in this behalf, the said A. B. pra3^s judgment, and that he may, "by the Court liere, be dismissed and discharged from the premises in the said indictment specified. Joinder in Demurrer. And C. D., Attorney General, Sic, who prosecutes in this case for the Commonwealth, saith, that the said indictment, and the matters and things therein contained, in manner and form as therein stated and set forth, are sufficient in law to compel the said A. B. to answer the same ; and this the said C. D., who prosecutes as aforesaid, is ready to verify and prove, as the Court here shall direct and award. Wherefore, inasmuch as the said A. B. hath not answered to the said indictment, nor in any manner denied the same, the said C. D., for the said Commonwealth, prays judgment; and that the said A. B. may be convicted of the premises in the said in- dictment specified.^ 1 This demurrer and joinder are taken from Archib. 56. See remarks there upon the effect of the demurrer, and the authorities there quoted, viz., 1 Saun- ders, 285, note (5) ; 1 T. R. 316. 280 PLEA OF PARDON. PLEA OF PARDON. A. B., of Sic, comes here into Court, in his proper person, and states to the Court, that at the Supreme Judicial Court holden at [here set forth the indictment and proceedings upon ivhich he was convicted : ] and now the said A. B. comes into Court, and by the said Court is asked if he haih any thing to say why judgment and sentence should not pass against him upon the said indictment ; who thereupon saith, that after the conviction of him the said A. B. of the crime aforesaid, in man- ner aforesaid, as in the said pica is mentioned, to wit, on a free pardon of the said crime set forth in said indictment was granted to iiim by his Excellency Levi Lincoln, Governor of the said Commonwealth, as appears by the said charter of pardon, under the great seal of said Commonwealth, bearing date the day of and which the said A. B. has here ready in Court to be produced. Wherefore, by reason of the said par- don, the said A. B. prays, that by the Court here, he may be dismissed and discharged from the premises in tlie said indict- ment specified. Note. It is remarkable that there are so few regular prece- dents for a plea of pardon, in the modern compilations of prece- dents in the English books. There is one in Rastall's Entries, p. 455, from which a precedent might be extracted ; but in its present state it is obsolete. There is another in Gude's Prac- tice, vol. ii. p. 618, which may be more easily adapted to the form which modern improvements require. The foregoing precedent is substantially conformable to the plea of pardon in the case of Rex v. Hampden, reported in 1 Trem. P. C. 308, 31 1. The judgment in that'case is unut- terably revolting, and ought not to stain the records of any Christian country. The plea of pardon must set out the pardon at large, with a profert, and must allege it to be under the seal of the govern- ment. Archb. 54 ; 1 B. &; P. 199. If there be any variance in the description of the offence or party, between the pardon and the indictment, it may be made PLEA OF PARDOxV. 281 good by averments of identity, in the same manner as in the plea of auterfois acquit. Archib. 54 ; Bac. Abr. Pardon, G. 2 ; 1 Chitt. 468. In England, a pardon may be granted either before or after conviction. But in Massachusetts, this can only be done after conviction. The constitution of that State, chap. 2, art. 8, pro- vides, that "no charter of pardon granted before conviction shall avail the party pleading the same, noivvithstanding any particular or general expressions contained therein, descriptive of the offence or offences intended to be pardoned." There is an " ancient custom " in England o( mvinsr srioves to the judges and their officers, which is compounded for by a fee of four guineas to each of the judges ; and upon which they may insist, before they allow a pardon ! Hawk. b. 2, c. 37, § 71 ; 1 Sid. 452; Kel. 25 ; Bac. Abr. Pardon, G. 2. As strange as it may seem, this " ancient custom " is stated in black and white in Hawkins, Bacon's Abr., and several other authorities. How can a judge in any country refuse to allow a pardon which has been granted by the supreme authority of the State, consti- tutionally exercised ? If persisted in, it would be a direct act of disobedience to such authority ; and upon a principle equally rational, legal, and constitutional, the king u)ight reverse a judg- ment, by his own decree, of the highest judicial tribunal in his kingdom. 30 282 CERTIORARI. CERTIORARI. To the Court of Common Pleas.^ Commonwealth of Massachusetts. Suffolk ss. To our Justices of our Court of Common Pleas, in our county of Suffolk. Greeting. VVe being willing, for certain causes, to be certified of the proceedings in a certain prosecution [Jiere insert the indictment and process^ and ibe judgment and sentence thereon had and given, command you, that the proceedings in the indictment and prosecution aforesaid, and the sentence thereon, with all things touching the same, fully and entirely as the same remain before you, by whatsoever name or names the party defendant may be called therein, to send to our Supreme Judicial Court, to be holden at B., in and for our said county of S., on the under your hands and seals, together with this writ ; that we may further cause to be done thereupon, what of right and according to law, ought to be done. Witness, L. S., Esq., at said B., the day of in the year of our Lord one thousand eight hundred and J. C, Clerk. * A writ of certiorari is an original writ, issuing from the Supreme Judicial Court, in the name of the Commonwealth, to the judges and officers of inferior courts, commanding them to return the records of a cause depending before them, in order that the party may have more sure and speedy justice. 1 Chitt. 371 ; Bac. Abr. Certiorari, A, and other authorities there referred to. It is left to the discretion of the Court either to deny or grant a certiorari at the prayer of an individual. In the case of an individual, there must be special ground laid to induce the court to grant it. But the right to it is said to be absolute when prosecuted by the Attorney General, ex officio, on behalf of the government ; and when prosecuted by a private person, in the name of the government, it also issues, unless sufficient cause is shown against it. Hawk. b. 2, c. 27, § 27, note (2) ; 4 Burr. 2458 ; Strange, 583, 549. WRIT OF ERROR. 283 WRIT OF ERROR. Writ of Error (coram nobis) in a criminal Case, where Judg- ment had been rendered in the Supreme Judicial Court} Commonwealth of Massachusetts. Suffolk ss. To our Justices of our Supreme Judicial Court, Greeting, Because in the record and proceedings, and also in the ren- dition of judgment on an indictment against A. B., of for a misdemeanor, [here insert the indictment and case complained o/",] as it is said, manifest error hath happened ; to the great damage of him the said A. B., as by his complaint we are informed : We, willing that the error> if any there has been, should be duly corrected, and full and speedy justice done therein, command you, that the records and proceedings aforesaid, which now remain before you, as it is said, you cause to be done, to cor- rect that error, what of right and according to law shall be to be done. Witness, L. S., Esq., at B., the day of in the year of &tc. J. C, Clerk. Assignment of Errors. And now the said A. B , on at the same term, comes in the proper person of him the said A. B., and saith, that in the record and process aforesaid, and also in giving the judgment aforesaid, there is manifest error in this, to wit, [here assign the errors ; ] whereas [here state the cause of the error : ] wherefore he the said A. B. prays judgment, and that the judgment afore- said, for the errors aforesaid, and others in the record and pro- * A writ of error is, in this country, considered a writ of right. But it is said in the English authorities, that it cannot issue, even with probable cause, with- out the^af of the Attorney General, or an express warrant from the king. 4 Burr. 2550 ; 2 Hawk. c. 50, § 12 ; 1 Stark. Cr. PI. 352. But it is remarked by Burr. & Stark, on the pages above quoted, that when the offence is of an infe- rior nature, and there is probable cause, this writ is grantable of right, and not merely ex gratia. It is diflScult to conceive, that in a country of laws, the same right can be granted to one citizen and withheld from another. Upon the foregoing principle, however erroneous a judgment may be, it cannot be cor- rected but by the^ of the Attorney General, or by warrant from the king. 284 WRITS OV HABEAS (CORPUS. cess aforesaid appearing, being found, may be reversed, annul- led, and held as enlirely void ; and thai the said A. B. may be restored to all things which he has lost, by occasion of the judgment aforesaid, and that, as well from said conviction as of the indictment aforesaid, he may be dismissed and discharged. WRITS OF HABEAS CORPUS. Writ of Habeas Corpus, ad Suhjiciandum} Commonwealth of Massachusetts. Suffolk ss. To Greeting. We command yon, that the body of A. B., of in our prison, under your custody, [or by you imprisoned and restrained of his liberty, as the case may 6e,] as it is said, together with the day and cause of his taking and detaining, by whatsoever name the said A. B. shall be called or charged, you have before our Justices of our Supreme Judicial Court, holden at B., within and for the county of S., immediately after the receipt of this writ ; to do and receive what our said justices shall then and there consider concerning him, in this behalf. And have you there this writ. Witness, W. C, Esq., at B., this day of in the year of our Lord he. Clerk. Habeas Corpus, ad Testificandum.^ Commonwealth of Massachusetts. Suffolk ss. To the Sheriff of our county of and to the under-keeper of our gaol in said county, Greeting. We command you that the body of A. B., detained in our prison under your custody, as it is said, by whatsoever name the ' Statute of Massachusetts of 1784, c. 72. * Habeas corpus, ad deliberandum et recipiendum, to remove a prisoner into the county for trial, where the crime was committed. See 1 Chitt. 132. No precedent for this writ is found either in Chitty, Starkie, or Tremaine. WRITS or HABEAS CORPUS. 28 said A. B. shall be called, you have, under safe and secure conduct, before our justices of our Supreme Judicial Court, holden at within and for the said county of imme- diately upon the receipt of this writ ; to testify in a certain cause depending in our said Court, and then and there to be heard, between the said Commonwealth and one C. D. ; and that im- mediately after the said A. B. shall then and there hav-e given his testimony before our said justices, that you return him the said A. B. to our said prison, under safe and secure conduct. Hereof fail not; and have there this writ. Witness, L. S., Esq., at the day of in the year of our Lord one thousand eight hundred and J. C, Clerk. END OF THE PRECEDENTS. APPENDIX NOTES. Formerly all indictments were in Latin, but now they are in English, in England as well as in this country ; that they should be in a language capable of being understood by those whose Hves and liberties may be aitected by them. Figures to express words are not allowable in an indictment ; but numbers must be expressed in words. Forgery is an ex- ception, when a fac simile of the instrument forged is given in the indictment. An indictment for an offence created by a statute, must, by express words, bring the offence within the description used in the statute. If a statute prohibit an act, and by a substantive clause, gives a recovery by action of debt, bill, plaint, or information, but men- tions no indictment, the party may be indicted upon the prohibi- tory clause. 2 H. H., 171. If the offence be at common law, judgment may be given as an offence at common law, though the indictment concludes contra formam statuti; for this conclusion may be rejected as surplusage. 2 Hawk. c. 25, § 116 ; 5 T. R. 162 ; Common- luealth V. Hoxey, 16 Mass. R. 385 ; Commonwealth v. Boynton, 2 Mass. R. 77. If there be several offenders that commit the same offence, though in law they are several offences in relation to the several offenders, yet they may be joined in one indictment. 2 H. H. 173. 288 APPENDIX NOTES. As to the name and addition of the party, if he be indicted by a wrong name or addition, and he plead to that indictment not guilty, or answer to it by that name, he shall not be allowed afterwards to plead a misnomer, or falsify the addition ; for he is concluded by his plea by that name. 2 H. H. 175. Iftherebeno addition, yet if the party appears and pleads not guilty, without taking advantage of it, he shall not stop his trial or judgment ; for by such appearance the indictment is af- firmed. The addition ought to be to the substantive name, not to the alias dictiis. But in an indictment for felony (murder), there must be " then and there" to the stroke, or to the robbery; for the day and place of the assault are not sufficient. It is usual, therefore, to re- peat the " then and there " in the several parts of the act. 2 H. H. 178. A mistake in not laying the ofFence on the very same day on which it was afterwards proved on the trial, is not material upon evidence. 2 Hawk. 236, .(6th Ed.) ; 2 H. P. C. 179. A mistake in the place in which an ofFence is alleged to be committed, will not be material upon evidence, or not guilty pleaded, if the fact be proved in some other place in the same county. 2 Hawk. 237, (6th Ed.) 337, (7th Ed.) The name of the person upon whom the ofFence is committed. An indictment for murder " of a certain person to the jurors aforesaid unknown," is good ; and so for stealing goods " of a person unknown." 2 H. H. 181. There is no need of an addition of the person murdered or robbed, unless there be a plurality of persons of the same name, in the same indictment. 2 H. H. 181. The number and value of the things stolen, must be set down in the indictment. 2 H. H. 183. An indictment against a person for that he did feloniously lead away a horse, without saying " take," is not good. The value of the iveapon or deodand need not be alleged. This ancient doctrine is exploded by Foster and others. APPENDIX NOTES. 289 The indictment must show in what part of the body the wound was given. It is not necessary to allege that the party " was in the peace of the Commonwealth." Foster, 35 1 . The length and depth of the wound should be described. It is necessary to allege that the party died of the wounds given. See the conclusions in the indictments for murder in the preceding collection of precedents. Joinder of offences. It is no objection to the indictment that the punishment for one of the offences is positive, and for the other discretionary. Rex v. Darley, 4 East Rep. 174. False pretences, SfC. Any material variance between the pretence alleged and proved, will vitiate the indictment ; as, where the indictment averred, that the defendant pretended that he had paid a sum of money into a"^ bank ; and in evidence it appeared that he had merely pretended that the money had been paid into the bank. Rex v. Plestoiv, 1 Camp. 194. Perjury. Assignment of Perjury. The indictment will be supported on motion in arrest of judgment, if any one assignment of perjury be good, though the rest are vicious. Rex v. Rhodes, 2 Lord Raym. 886. Ownership. If a feme sole be robbed, and marry before an indictment is found, the ownership should be described by her maiden name. Leach, GOG. The court can only take notice of misrecitnls of a private act or statute, where md tiel record is pleaded. 1 Lev. 206 ; Doug. 97; 1 Lord Raym. 318; 1 Salk. 330. Strictness and certainty required in indictments. The appli- cation of this rule has often been regretted by the ablest judges. Lord Hcde observed, that the strictness required in indictments was grown to be a blemish and inconvenience to the law, and the administration thereof; that more offenders escape by the over easy ear given to exceptions to indictments, than by the mani- festation of their innocence ; and that the grossest crimes had gone unpunished by reason of these unseemly niceties. 2 Hale, 193. This opinion has been confirmed by Lord Xe»?/OM, 1 East, 37 290 APPENDIX NOTES. 314 ; Lord Ellenhorough, 5 East, 260, and 2 M. U S. 386. And Lord Mansfield has declared his opinion, that it was almost as bad to let a crime go unpunished, as to permit an innocent man to suffer. 1 Leach, 3S3 ; 1 Chitt. 170, 171. An indictment, charging a defendant with stealing " a bank note of the value of ten dollars," is good ; as the term " bank note " necessarily implies a note for the payment of money. 1 Mass. R. 340. In an indictment for forging a bill of exchange, it is not ne- cessary to insert the marks, letters, or figures used in the margin of the bill for ornament, or the more easy detection of forgeries ; as such marks or ciphers form no part of the bill. 3 Johns. Cases, 299 ; also, 1 Mass. R. G2, 208. When an instrument is set forth with the word " tenor," there must be no variance between the instrument set forth, and that given in evidence ; because identity is intended by the term. 3 Salk. 225 ; 2 Leach, 661 ; 1 Chitt. 175. The word purport may be adopted instead of tenor. 2 East P. C. 983 ; Doug. 300. An indictment must not contain abbreviations or figures. But to this rule there is an exception in the case of forgery, wHere a/ac simile of the instrument forged must be given in the indict- ment. I Chitt. 176 ; 2 Hale, 170 ; Cr. C. C. 33. Another rule in the mode of stating the offence is, that it must not be in the disjunctive. 1 Chitt. 236 ; Hawk. b. 2, c. 25, § 57 ; Bac. Abr. Indictment, G. 3. As where the indictment stated that the prisoner murdered, or caused to be murdered. This is bad, because uncertain. Mere clerical or grammatical errors will not vitiate, unless they change the word, or render the meaning obscure. 1 Chitt. 239; 5 T. R. 317, 318. Technical language of the indictment. Some terms are so appropriated, that none other, however synonymous, are capable of doing it. While there are others, which, though usual, are not necessary to be inserted. Of the latter is the following ; that the prisoner, " not having the fear of God before his eyes, but being APPENDIX NOTES. 291 moved and seduced by the instigation of the devil," ^ perpetrated the crime. There is no authority to show, that the omission of them would be material. 1 Chitt. 239, 210 ; G East, 472, 473, 474. The words, " by force and arms," were necessary at com- mon law, in indictments for offences, amounting to an actual disturbance of the peace. But these words are clearly super- fluous, even where the crime is of a forcible nature. I Stark. 85; 2 Lev. 221 ; P. Williams, 497. In the conclusion of the indictment, or the several counts, there are sentences in common use, which are not at all necessary. Of this description are, " to the great damage " of the party ; " to the evil example of all others in the like case offending ; " and " to the great displeasure of Almighty God." 1 Chitt. 245 ; 2 Ld. Raym. 1462. Against the 'peace. Every indictment must conclude against the peace of the government under which the prosecution takes place ; as, " against the peace of said Commonwealth ;" " against the peace of the United States of America ; " " against the peace of the people of New York," &c. The words, against the dignity, are immaterial. 1 Chitt. 248 ; 2 Hale, 188 ; Hawk. b. 2, c. 25, § 94 ; Cr. C. C. 43. Joinder of several offences. In cases of felony, no more than one distinct offence at one time should be charged upon the prisoner in one indictment. But this is matter of prudence. For, in point of law, there is no objection to the insertion of several distinct felonies of the same degree in the same indictment, against the same person. 1 Chitt. 253 ; 2 Hale, 173; 2 Leach, 1103. This course ought to be confined to cases, where the dif- ferent offences were committed at the same time, and might con- stitute but one offence. 1 Chitt. 253 ; 2 East P. C. 935, 936 ; as where several forged receipts or bank notes were uttered at the same time. There is no necessity of reciting a public statute in an indict- ment; for the judges are bound, ex officio, to take notice of all * There is not a precedent in this volume which is rendered ludicrous by the inMertion of this phrase. 292 APPENDIX NOTES. public statutes. 1 Chitt. 27G, 277. But the parts of a private act, upon which an indictment is framed, must be set out special- ly, the same as other facts, and a variance will be fatal. 1 Chitt. 277 ; 2 Hale, 172 ; Hawk. b. 2, c. 25, § 103. Amend mend of Indictments. Indictments cannot be amended, but by the concurrence of the grand jury. And it is a common practice in England for the grand jury to consent, that the court shall amend all matters of form, altering no matter of substance. Cro. C. C. 44 ; Hawk. b. 2, c. 25, § 98 ; Bac. Abr. Irulid' ment, H. 11. Habeas Corpus. Although this writ is demandable of right, it does not issue as a mere matter of course, but must be ob- tained by motion to the court in term time, and by application to a judge in vacation. 1 Chitt. 124; 3 Bl. Com. 132; Bac. Abr. Habeas Corpus, B. 5. The Supreme Court of the United States has power, under the constitution and laws, to issue a habeas corpus. Ex parte Burford, 3 Cranch, 448. They have power to issue a habeas corpus, ad subjiciandum, under the statute of the United States, but have no common law power for that purpose. Ex parte Bolman and Swartout, 4 Cranch, 75. In Pennsylvania a penalty of £300 is imposed upon any judge who shall refuse to award a habeas corpus, according to the provisions of the act of 1785. 2 Smith's Laws, 278. In England, if the officer refuse to return the writ, an attach- ment will immediately issue. 5 T. R. 89 ; Bacon's Abr. Habeas Corpus, B. 8-12. In Massachusetts, one judge of the Supreme Court, in term time, as well as in vacation, is authorized and required to award the writ of habeas corpus, in all cases required by the constituiion and laws of the land, returnable forthwith. Stat. 1808, c. 80. Officers refusing or neglecting to obey the writ, unless from necessity, shall forfeit to the party £100, and may be further punished for such disobedience, as for a contempt, and be com- pelled to obedience thereto by process of attachment. Mass. Laws, Stat. 1784, c. 72, § 7, 8. APPENDIX NOTES. 29'J Certiorari. The Supreme Judicial Court has a general power to correct errors in the proceedings of inferior courts, either by wn't of error, or certiorari, in all cases where another remedy is not provided. Savage v. Gulliver, 4 Mass. R. 171. Where the proceedings of the court below are, in any stage of them, different from the course of the common law, the only mode of correcting errors in them is by a writ of certiorari. Commonwealth v. Ellis, 1 1 Mass. R. 465 ; JlJelvin v. Bridge, 3 Mass. R. 305 ; 4 Mass. R. 670, he. As in cases or the maintenance of bastard children. Drown V. Simpson, 2 Mass. R. 445. Proceedings before a justice to recover a fine for neglect of military duty. 4 Mass. R. 239, 376, 670 ;, 5 Pvlass. R. 406. So to correct the proceedings of the Court of Sessions, in laying out a new highway. Commonivealth v. Coombs, 2 Mass. R. 489. To remove proteedings of the Common Pleas, on a complaint by the owner of lands overflowed by the erection of a mill-dam, as they are not according to the course of the common law. 6 Mass. R. 398 3 Mass. R. 184. Judgment for costs cannot be rendered upon a certiorari ; but only the proceedings affirmed or quashed. 11 Mass. R. 465 ; 3 Mass. R. 305 ; 4 Mass. R. 670 ; 5 Mass. R. 420. A certiorari to remove an indictment for a forcible entry and detainer, into the Supreme Court, is grantable of course. The People V. Runkell, 6 Johns. R. 334. The delivery of a certiorari to a justice supersedes his powers, and renders all subsequent proceedings coram non judice. Cap V. Shepherd, 2 Johns. R. 27. The law is said to be the same in Pennsylvania. 1 Chit. 391, note. Penitential confessions of an offence voluntarily made by one member of a church, to other members of the same church, may be given in evidence on an indictment for the same offence. Commonwealth v. Drake, 15 Mass. R.I 61. In a libel for a divorce for the cause of adultery, the confes- sions of the libellee, uncorroborated by other circumstances, are not admissible to prove the fact of adultery. Baxter v. Butler, 1 Mass. R. 346 j Holland v. Holland, 2 Mass. R. 154. 294 APPENDIX NOTES. The alteration of a record may be proved hy parole evidence, in the same manner as any other facts. Brier v. Woodbury et al, 1 Pick. 362. Accessories. In crimes under the degree oi felony, there can be no accessories ; but all persons concerned therein, if guilty at all, are principals. I Russ. 44 ; 1 Hale, 613. If a statute create a felony, though it mention nothing of acces- sories before or after, yet virtually and consequentially, those that counsel or command the offence are accessories before the fact, and those who knowingly receive and conceal the offender, are accessories after. 1 Russ. 44; 1 Hale, 613, 614, 704. Where a person is mortally wounded or poisoned in one coun- ty, and die thereof in another, the offender may be tried in the county where the death shall happen. Commonwealth v. Parker et ah, 2 Pick. 550. INDEX TREATISE UPON THE OFFICE OF GRAND JURORS, The Antiquity of Grand Jurors, 1. Historical Sketches of the Institution, 2. The Difference in the Mode of selecting them in this Country and in England, 2, 3. Preference to the Mode of selecting in this Country, 3. The Mode of arranging the Subjects stated, viz. — 1. Their Number and Qualifications, 4. 2. The Mode of selecting and summoning them, 4. 3. The Mode of proceeding after their Appearance in Court j their Oath ; its Nature and Obligations, 4. 4. The Right of challenging Grand Jurors, 4. 5. The Mode of proceeding after the Grand Jury are organ- ized, 4. 6. The Nature of the Evidence to be submitted to them, and the Principles upon which it is to be received and con- sidered, 4. 7. The Right of the Grand Jury to compel the Attendance of Witnesses. The finding of the Bills, &c. 4. 8. The Amendment of Indictments by Consent of the Grand Jury, 4. First, Their Number ; — they must consist of 12 at least, 4. The Reasons for this stated, 4. Their Qualifications stated, 4, 6, 7. 296 INDEX TO THE TREATISE UPON GRAND JURORS. Their Disqualifications stated, 5. Mode of taking Advantage of them stated, 5. Their Number &c. in the Courts of the United States, 7. Grand Jurors de ialibus circumstantibus ; the Law as to this, 7. Second, The Mode of selecting and summoning them, 7. This is regulated by the Statutes of the several States, and of the United States, which are referred to, 7, 8. Third, The Course of Proceeding after their Appearance in Court, their Oath, &c. 8. Proclamation made to Answer to their Names, 8, The Oatli administered, 9. Alphabetical List prepared, 9. The Oath administered to the first two, 9. The Charge then given, 9. They retire and elect a Foreman, 9. Foreman is authorized to swear Witnesses in the Presence of the public Prosecutor, 9. Form of the Oath to the Witness, 9. The fact of their being sworn and a List of their Names return- ed and filed in Court, 10. The Form of the Oath nearly the same as in England, 10. The Form of the Oath expresses the Obligations it imposes, 11. Remarks upon the different Branches of it, 11, 12. The Injunction of Secrecy the most important, 12. Pernicious Effects of a Breach of it stated, 13. The Obligation of Secrecy is perpetual, 13, 14. Remarks upon the closing Parts of the Oath, 14. Their Time of Service, Remarks upon, 14, 15. The Power of the Court to discharge them conditionally, 15. Fourth, The Right to challenge the Grand Jury, and of instructing them in the Principles of Evidence, 16. If a Grand Juror has been convicted of an infamous Crime, he may be challenged, 16. If he does not possess the legal Qualifications, 16. May be challenged for Favor, 17. The Right of the Court to instruct the Grand Jury when request- ed by them, is well established, 17. INDl^X TO THE TREATISE UPON GRAND JURORS. 297 But the Right of the Accused to move the Court to instruct the Grand Jury, has never been admitted, 17. Fifth, The Mode of proceeding after the Grand Jury are organized. The different Modes in this Country and England stated, 18. The Mode of not offering the Bill till after the Examination of the Witness, nor until it has been ordered, preferred, 18. Reasons for this, 18. The Right of the public Prosecutor to be present at the Exami- nation of Witnesses before the Grand Jury, defended, 18, 20, 22. The Impossibility of proper Despatch without it, stated, 18, 19, 20. A Mode of proceeding by the public Prosecutor pointed out and recommended, 20, 21. Capital Cases should be first attended to, 20. The Duty^of the public Prosecutor explained, 21. The Inconvenience of his preparing his Bills from the Minutes of the Grand Jury, explained, 22, 23. The Origin of the Objection of the Presence of the public Pros- ecutor stated, 23. Sixth, The Nature of the Evidence before the Grand Jury, and the Manner it is to be decided upon. Generally they can hear no other Evidence than that produced by the Government, 23. But if it appear, that there is other Evidence which will elucidate that produced by the Government, it is said they may require it, 24. The Idea that a Bill may bo found upon probable Evidence is exploded, 24, 25. They cannot find a Bill except upon such Evidence as would justify them, as a Traverse Jury, to convict the Prisoner, 24, The Grand Jury cannot receive Evidence not under Oath, 25. Nor any Evidence which would not be admitted on the Trial, 25. An Accomplice, not otherwise disqualified, may give Evidence before the Grand Jury against his Associate, 25. The Grand Jury may ask the Opinion of the Court, if they have Doubts as to admitting the Evidence offered them, 26. 38 298 INDEX TO THE TREATISE UPON GRAND JURORS. If the Proceedings were permitted to be made public, the whole Object of the Institution would be defeated, 26. The Case of the Earl of Shajleshury, where the Evidence before the Grand Jury was received in open Court ! 26. Seventh, The Right of the Grand Jury to compel the Attendance of Witnesses. The Grand Jury may order Witnesses summoned, 27. And in all Cases, when properly summoned, if they refuse to attend, the Court will issue an Attachment against them, 27. If the Foreman does not agree to the Bill, he must, neverthe- less, sign it, if twelve agree to it ; for it is not the Foreman's Bill, 28. It is a Rule, in Cases of Homicide, to return a Bill for Mur- der ; upon which the Prisoner may be found guilty of Man- slaughter, and not of Murder, 28. Eighth, Amendment of Indictments. It is the common Practice in England to amend Indictments in mere Matters of Form, by the Consent of the Grand Jury, 29. Different Opinions as to the Stage of the Proceedings at wliich this Consent is to be given, 29. The Manner in which this Consent is given, stated, 30. There appears to be no Objection to introducing the English Practice of Amendment of Indictments, in this Country, 30. The Opinion of eminent Judges that it ought to be, 31. The Improvements lately introduced in England by the Statute of7Geo. 4, c. 64,<§19, 31. The Statute of Massachusetts of 1830, c. 49, adopting the Im- provements in the Statute of 7 Geo. 4, 32. INDEX TO THE PRECEDENTS. A. ABORTION. At Common Law ; for administering a Potion, with Intent to cause an Abortion, 33. For causing an Abortion by an Instrument, 34. For administering noxious Potions, &c. with Intent to procure an Abortion, 35. For administering a Decoction of Savin, to procure an Abortion in a Woman before the Quickening, 36. ACCESSORY. Larcent. Indictment against an Accessory to a Larceny before the Fact, 36. Against an Accessory, for receiving the principal Felon, 37. Against an Accessory, for receiving stolen Goods, 37. Indictment for a Misdemeanor, against an Accessory, for re- ceiving stolen Goods, the Principal not having been prose- cuted, 38. Against an Accessory for a Misdemeanor, in receiving stolen Goods, the principal Felon being unknown, 38. Against an Accessory, for a second offence in receiving stolen Goods, the principal Felon being unknown, 39. Accessory before the Fact, to a Robbery, 39. Against an Accessory after the Fact, 40. Indictment against an Accessory before the Fact, in Murder, 40. 300 INDEX. Another Precedent against an Accessory before the Fact in Murder, 41. Ao-ainst an Accessory, for harboring a principal Felon in Murder, Indictment against an Accessory to a Murder after the Fact, upon the Statute of Massachusetts, ISO-l, c. 123, § 2, 42. Indictment against the Principal and Accessories before the Fact in Burglary, 42. Indictment against an Accessory to a Burglary, after the Fact, 43. Indictment against an Accessory to a Burglary before the Fact, where the Principal committed Suicide before he was tried, 43. Indictment against an Accessory to a Rape, before the Fact, 44. Against an Accessory to a Rape after the Fact, 45. Indictment against an Accessory before the Fact to an Arson, 45. Against an Accessory after the Fact for harboring &c. the Principal to an Arson : On the 5th Section of the Statute of Massachusetts, 1804, c. 131, 46. Indictment against an Accessory to a Mayhem before the Fact, 47. ADULTERY. Indictment for Adultery, by a Married Man with an Unmarried Woman, 48. For Adultery, by a Married Man with a Married Woman, 48. ARSON, AND OTHER MALICIOUS BURNING. Indictment for Arson, 49. For setting Fire to a Building, whereby a Dwelling-House was burnt in the Night Time, 49. For maliciously setting Fire to a Building adjoining a Dwelling- House, whereby the Dwelling-House was burnt, 49. For maliciously burning a Stable within the Curtilage of a Dwel- ling-House, 50. For burning a Dwelling-House in the Day Time : On the second Section of the Statute of Massachusetts of 1804, c. 1.31, § 2, 50. For maliciously burning a Meeting-House : On the second Sec- tion of the Statute of Massachusetts of 1804, c. 131, 50. For maliciously burning a Vessel, lying within the body of the County: On the third Section of the Statute of Massachusetts of 1804, c. 131, 51. Another Precedent for Arson, 51. For burning his own House, with Intent to defraud the Insurers, 52. INDEX. 301 For setting Fire to a Gaol, 52. For a Misdemeanor at Common Law, in setting Fire to Defend- ant's own House, contiguous to others ; to the public Alarm, ^c. 53. For a Misdemeanor at Common Law against a Lodger, for setting Fire to the Wainscot of her Room, with Intent to burn the other Rooms, 53. ASSAULTS. For an Assault not accompanied with a Battery, 54. For a common Assault and Battery, 54. For an Assault and Battery, by casting a Person on a Brick Floor, kicking, ^c. 55. For an Assault, and beating out an Eye, 55. For an Assault, and tearing the Hair off Prosecutor's Head, 56. For an Assault with a Cane, 56. For assaulting the Driver of a Chaise, and overturning the Chaise with a Wheel of a Cart, 57. For an Assault by driving a Coach against Prosecutor's Chaise, 57. For an Assault, and driving a Cart against a Chaise, and throwing the Driver therefrom, 58. For an Assault and encouraging a Dog to bite, 58. For assaulting a Woman pregnant with a Quick Child, 59. For riding over a Person with a Horse, 59. For an Assault, and presenting a loaded Gun, and threatening to fire it, 60. For an Asssult, and forcibly taking away a Receipt for a Debt, 60. For a violent Assault, and wounding Prosecutor, with a Bayonet, 61. For an Assault and False Imprisonment, 61. For the same Offence, and obtaining Money for discharging the Prosecutor, 62. For the same, and for obtaining a Note for discharging the Prosecutor, 62. For entering a Public House, making a Noise therein, (assaulting,) and threatening the Owner with bodily Harm, 62. ASSAULTS UPON OFFICERS. For an Assalt upon a Constable, in the Execution of his Office, 63. For an Assault upon a Collector of a Turnpike Corporation in the Execution of his Office, 63. 302 INDEX. For an Assault on a Deputy Gaoler, in the Execution of his Office, 64. For an Assault upon a Minister of the Gospel, whereby he was rendered incapable of discharging his Duty, C4. ASSAULTS, WITH A FELONIOUS INTENT. For an Assault, with Intent to maim, G5. For a felonious Assault, with a drawn Sword, with Intent to mur- der, 65. For a felonious Assault, and casting into a Pond, with Intent to suffocate and drown, 66. For a felonious Assault, with Intent to commit a Rape, 66. For a felonious Assault, with Intent carnally to know and abuse a Female Child under the Age of ten Years, 67. For a felonious Assault upon a Woman, by two Persons, with Intent that one of them should ravish her, 67. For an Assault with Intent to rob, 68. For an Assault upon a Boy, with Intent to commit the Crime against Nature, 68. For an Assault, with Intent to steal from the Person, 68. B. BARRATRY. Indictment for being a common Barrator, 69» Against an Attorney, for suing a Person in the Name of one who was ignorant of, and had no interest in the Suit, 69. Against an Attorney for advancing Money to procure himself to be retained, in the Collection of a Note, 70. BASTARD. Indictment against a Woman for concealing her Pregnancy, 71. Against a Woman for concealing the Death of a Bastard Child, 71. BAWDY-HOUSE. — See Nuisance. BESTIALITY. — See Sodomy. BIGAMY. — See Polygamy. MURDER OF BASTARD CHILDREN. — See Murder. INDEX. 303 BLASPHEMY. For Blasphemy, by blaspheming the holy Name of God, 72. For Blasphemy, by cursing and reproaching Jesus Christ, 73. For Blasphemy, by cursing and reproaching the Holy Ghost, 73. For Blasphemy, by cursing and contumeliously reproaching the Holy Scriptures, 74. For Blasphemy ; at Common Law, 74. BRIBERY. Against a Justice of the Court of Common Pleas, for accepting a Bribe, 75. For attempting to bribe a Justice of the Court of Common Pleas, 76. For bribing a Person to procure an Office of Trust : On the Pro- vincial Statute of Massachusetts of 1758, 77. For accepting a Bribe to procure an Office of Trust : On the Pro- vincial Statute of Massachusetts of 1758, 77. For offering to bribe a Commissioner of the Revenue of the United States, 77. For endeavouring to bribe a Constable, 78. For Bribery of a Judge of the United States : On the Act of April 30, 1790, § 21, 79. For giving a Bribe to the President or Directors of the Bank of the United States : On the Act of March 3, 1819, § 4, 79. Against an Officer of the Customs for receiving a Bribe for a false Entry of a Vessel, Goods, &c. : On the Act of the United States of March 2, 1719, § 88, 80. BURYING PLACES. — See Sepulchres of the Dead. BURNING. — See Arson. BRIDGES. — See Nuisance. BURGLARY : AND OTHER BREAKING AND ENTERING OF BUILDINGS. Indictment for Burglary at Common Law, 81. For a Burglary with Intent to steal, 81. For a Burglary, Defendant being armed with a dangerous Wea- pon, 82. For a Burglary by breaking out of a Dwelling-House, 82. For Burglary, where the Prisoner armed himself with a dangerous Weapon in the Dwelling-House, 83. 304 INDEX. For Burglary, where the Prisoner committed an Assault upon a Person lawfully in the House, 83. Burglary against the Principal, and others present, aiding, assist- ing, &c. For entering a Dwelling-House, in the Night Time, without break- ing, with Intent &c. For breaking and entering a Ship or Vessel, in the Day Time, with Intent &c. 85. CHALLENGING TO FIGHT. For sending a written Challenge, 86. For sending a Challenge in a Letter, 86. Another Precedent for challenging by Letter, 87. For a verbal Challenge, 87. Another Precedent for a verbal Challenge, 87. For carrying a Challenge to the Prosecutor, 88. For provoking and inciting Prosecutor to fight, 88. For engaging in a Duel where no Homicide ensued, 89. For challenging, by written Message, to fight a Duel, 89. For being a Second in a Duel, 90. For being a Second to a Person given a Challenge, when no Duel is fought, 90. For accepting a Challenge when no Duel ensued, 90. For being a Second to a Person accepting a Challenge, when no Duel is fought, 91. CHAMPERTY. — See Maintenance. CHEATS. Indictment at Common Law for selling by false Scales, 91. For defrauding a Person by means of a counterfeit Letter and other false Tokens : On the Statute of 33 H. 8, c. 1, 92. For obtaining Goods of a Shopkeeper, under Pretence of being Servant to a Customer, 93. For obtaining Goods under Pretence of being Merchants of Proper- ty and Credit, 94. For obtaining Money by drawing upon a Person whom the De- fendant pretended was indebted to him and was a Person of Property, 95. For obtaining a Note under Pretence of inspecting it, and then cancelling and destroying it, 96. INDEX. 305 COMPOUNDING A FELONY. For compounding a Felony, 97. For compounding an Offence against a penal Statute, 98. CONSPIRACY. For a Conspiracy to charge a Man with a Rape, with Intent to obtain Money from him, 99. For a Conspiracy to charge a Man with receiving stolen Goods, knowing them to be stolen, and obtaining Money for com- pounding the same, 100. For a Conspiracy among Workmen to raise their Wages and les^n the Time of Labor, lOL For a Conspiracy to charge a Man with being the Father of a Bastard Child, 101. For a Conspiracy to cheat a Man of his Goods, under Pretence of buying them, 102. For a Conspiracy to make an unlawful and oppressive Tax, 103. For a Conspiracy to defraud an illiterate Person, by falsely read- ing to him a Deed of Bargain and Sale, as and for a Bond of Indemnity, 103. For a Conspiracy to obtain Goods upon Credit, and then to ab- scond, and defraud the Vendor thereof, 104. For a Conspiracy to manufacture spurious Indigo, with Intent to sell the same as genuine Indigo of the best Quality, 105. For a Conspiracy by Perons confined in Prison, lo effect their own Escape and that of others, 106. For a Conspiracy, by Prisoners, to effect their Escape, and break- ing down a part of the Wall of the Prison, 107. For a Conspiracy by Prisoners, and attempting to blow up the » Wall of a Prison with Gunpowder, 107. For a Conspiracy to persuade a Man not to give Evidence against One committed for Trial, 108. Another Form for the same Conspiracy, without averring any Overt Act, 109. For a Conspiracy to cheat Another, without alleging any Overt Act, 109. CORRECTION, House of. — See Nuisance. COUNTERFEITING. — See Forgery. 39 306 INDEX. D. DECEIT. — See Cheats. DUELLING. — See Challenges to fight. E. ELECTIONS. Indictment for fraudulently voting at an Election of Governor, ^c. 110. Against the Selectmen of a Town, for fraudulently admitting Persons not qualified to vote at an Election, 111. EMBRACERY. For Embracery, by persuading a Juror to give Lis Verdict in Favor of the Defendant, and for soliciting the other Jurors to do the like, 113. ESCAPE. Indictment at Common Law^ for escaping from a Constable, being in Custody under a Warrant for Larceny, 114. Against a Prisoner in Custody, for breaking out of Gaol, 115. Against a Constable for a negligent Escape, 115, Against a Gaoler, for a voluntary Escape of a Prisoner convicted of Felony, 116. For conveying Instruments into a Prison, w^ith Intent to facilitate the Escape of a Prisoner, 117. i^ gainst a Prisoner confined in Gaol, for attempting to break the Gaol in order to make his Escape, 119. EXTORTION. Indictment against a Justice of the Peace for Extortion : On the sixth Section of the Statute of Massachusetts, 119. Against a Constable, for taking Money under Pretence of getting the Party discharged without any Proceedings to be had before a Justice of the Peace, 120. Against a Constable for extorting Money of a Person apprehended by him upon a Warrant, to let him go at large, 121. INDEX. 307 Against a Justice of the Peace for extorting Fees for discharging a Recognisance, and for not returning the same to the Court for which it was taken, 121. F. FORCIBLE ENTRY AND DETAINER. Indictment for a Forcible Entry and Detainer, at Common Law, 122. FORESTALLING, ENGROSSING, AND REGRATING. For forestalling Lambs in their Way to a public Market, 123. For Engrossing, 124. For Regrating, 124. FORGERY AND COUNTERFEITING. For forging a Promissory Note for the Payment of Money : On the first Section of the Statute of Massachusetts of 1804, c. 120, 124. For forging a Certificate of a Justice of the Peace : On the first Section of the Statute, 125. For uttering and publishing a forged Instrument : On the last Clause of the first Section of the Statute, 125. Precedents upon the Second Section of the Statute. For forging a Certificate of a public Debt, 126. For forging a Bank Bill of a Bank incorporated within this State, 127. For being possessed of ten counterfeit Bank Bills at the same time, with Intent to pass the same, 127. Indictments framed upon the Third Section of the Statute. For uttering and tendering in Payment a Counterfeit Bank Bill of an incorporated Bank in Massachusetts, 128. For a second Offence in passing a Counterfeit Bank Bill, 128. For bringing into, and being possessed of a Counterfeit Bill within this Commonwealth, with intent &c. : Drawn upon the fourth Section of the Statute, 129. 308 INDEX. Forms of Lndictments upon the Fifth Section of the Statute. For making or memlinfr any Tool &c., to be used in counterfeit- ing Bank Bills &c., 130. For being possessed of any Tool &c., to be used in counterfeiting Bills &c., 130. Forms &c. upon the Sixth Section of the Statute. For counterfeiting any Gold or Silver Coin, 131. Another Form for the Same, more fully set forth, 131. For being possessed often Pieces of Counterfeit Coin, with intent to pass the same, J 31. Forms &c. upon the Seventh Section of the Statute. For being possessed of any number of Pieces of false Coin, with intent &c., 132. For uttering and passing Counterfeit Coin, knowing &c., 132. For making or being possessed of any Tool &c., to be used in counterfeiting Coin : On the eighth Section of the Statute, 133. For forging a Bond signed with a Mark, with intent to defraud the Executors of a deceased Person, 133. Precedents of Indictments for Forgery and Counterfeiting, DRAWN upon the STATUTES OF THE UnITED StATES. For forging a Bill or Note of the United States Bank, 134. For uttering and publishing a forged Bill of the United States Bank, on the same Section of the Statute, 135. For selling and delivering a forged Bill of the United States Bank: On the same Section of the Statute, 135. For uttering and passing a falsely altered Bill, &c. : On the same Section of the Statute, 136. Forms of Indictments for Counterfeiting the Current Coin OF the United Staes. For counterfeiting any Gold or Silver Coin, resembling the Gold and Silver Coin which has been coined at the Mint of the United States, 137. For uttering and publishing counterfeit Coin, which has been coined at the Mint of the United States, 137. For debasing the Coin of the United States by an OfRcer employed at the Mint, 138. For fraudulently diminishing the Coin of the United States, 138. INDEX. 309 G. GAMING AND GAMING-HOUSES. For playing at Cards at a House of Entertainment, 139. For exposing to View Implements of Gaming, 139. For winning Money by Gaming : On the third Section of the Statute of Massachusetts of 17S5, c. 58, 139. For keeping a common Gaming-House for Billiards : On the Statute of 1798, c. 1, § 1, 140. For keeping a private Billiard Table for hire, &c. : On the second Section of the Statute of 1798, c. 20, 140. For playing at Billiards : On the third Section of the Statute of 1798, c. 20, 141. L. LARCENY AND ROBBERY. For simple Larceny, at Common Law, for stealing the Property of several Persons, 141. For simple Larceny : On the first Section of the Statute of Mas sachusetts, of 1804, ch. 143, 142. For breaking and entering a Shop in the Night, and commit- ting a Larceny therein : On tlie fourth Section of the Stat- ute, 142. For breaking and entering a Vessel in the Night Time and com- mitting a Larceny therein : On the fourth Section of the Statute, 143. For entering a Dwelling-House in the Night Time, without breaking, the Owner being therein, and put in Fear : On the fifth Section of the Statute, 143. For breaking and entering a Dwelling-House in the Day Time, the Owner being therein, and put in Fear : On the fifth Section of the Statute, 14.3. For breaking and entering an Out-House, adjoining a Dwelling- House &c., in the Day Time, the Owner being therein, and put in Fear: On the fifth Section of the Statute, 144. For committing a Larceny in the Day Time, in a Dwelling-House : On the sixth Section of the Statute, 144. For breaking and entering a Meeting-House in the Night Time, and committing a Larceny therein : On the sixth Section of the Statute, 145. ;J0 INDEX. For breaking and entering a Court-House in the Night Time, and comnaitting a Larceny therein : On the sixth Section of the Statute, 145. For breaking and entering a Stable in the Night Time, and com- mitting a Larceny therein : On the sixth Section of the Stat- ute, 146. For stealing from the Person, openly and violently : On the eighth Section of the Statute, 14G. For stealing from the Person privily and fraudulently : On the eighth Section of the Statute, 146. For a second Conviction of Larceny : On the third Section of the Statute, 147. Precedents for Larceny on the Statutes of the United States. Against an Officer of the Bank of the United States, for a Larceny of the Property of the Bank: On the Statute of 3d March, 1816, §18, 147. Against an Officer of the Bank of the United States for embezzling Money, Goods, &lc. : On the latter Claus'e of the same Section of the Act, 148. For Larceny and Embezzlement of public Property: On the Statute of the United States of 30th April, 1790, § 26, 149. Against an Assistant Postmaster, for stealing Money which came into his hands as Assistant Postmaster : On the Act of 3d March, 1825, § 21, 149. Forms of Indictments for Robbery. Form of Indictment for Robbery: On the Statute of Massachusetts of 1804, c. 143, 150. For a capital Robbery, the Prisoner being armed with a dangerous Weapon, with intent to kill or maim : On the first Section of the Statute of Massachusetts of 1818, c. 124, 150. For a capital Robbery, the Prisoner being armed with a danger- ous Weapon, and actually striking and wounding the Person assaulted and robbed : On the latter Clause of the first Section of the Statute of 1818, c. 124, 151. For robbing a Carrier of the Mail of the United States by the Use of a dangerous Weapon : On the Act of Congress of 3d March 1825, c. 29, 1.52. INDEX. 311 LEWDNESS AND LASCIVIOUS COHABITATION. For Lewd and Lascivious Cohabitation, 153. For open, gross Lewdness, and Lascivious Behaviour, 153. At Common Law, for exposing Defendant's naked Body in a public Street, 153. LIBEL. For publishing a Libellous Letter, imputing the Crime of Theft to the Prosecutor, 154. For a Libel upon a private Individual, 1.54. For a Libel upon an Attorney, contained in a Letter, 155. Against the Printer of a Newspaper, for publishing an Advertise- ment by a married Woman, offering to become a Mistress, 156. For a Libel, by hanging Prosecutor in Effigy, 157. For publishing an ex parte Statement of an Examination before a Magistrate, for an Offence with which the Defendant was charged, 158. For a Libel on a Person who was dead, 158. For publishing an obscene Print, 159. For publishing a seditious Libel, 160. For writing a libellous Letter to the Prosecutor, 160. For a blasphemous Libel, 161. For a Libel upon a Senator of the United States, 161. LOTTERY. Forms of Indictments upon the Statutes prohibit- ing THE Sale &c. of Lottery Tickets. For selling a Lottery Ticket : On the Statute of Massachusetts of 1825, c. 184, § 1, 162. For exhibiting a Sign or other emblematical Representation of a Lottery, &.c. : On the Statute of Massachusetts of 1828, c. 134, §1, 163. M. MAINTENANCE. For Maintenance of an /u tion of Debt, 164, For Maintenance of an Act,: of Ejectment, 164. MALICIOUS MISCHIEF. For maliciously burning a Quantity of Boards, 164. For wilfully and maliciously maiming and disfiguring a Horse, 165. 321 INDEX. MARRIAGE UNLAWFULLY SOLEMNIZED. For solemnizing a Marriage without lawful Authority, 165. MANSLAUGHTER. Against the Driver of a Cart for driving over Deceased, 166. MAYHEM. For Mayhem by slitting the Nose, 167, MISPRISION OF FELONY. Indictment for Misprision or Concealment of Felony, 168. Another Form for Misprision of Felony, 168. For a Misprision of an intended Felony, 169. MURDER. For Murder, by shooting with a Pistol, 170. For Murder, by stabbing with a Knife, 172. For Murder, by cutting the Throat, 173. For Murder, by throwing a Knife, 173. For Murder, by casting a Stone, 174. For Murder, by striking with a Poker, 175. For Murder, by beating with Fists, and kicking on the Ground, 176. For Murder, by choking and strangling, 177. For Murder, by riding over a Person with a Horse, 177. For Murder, by strangling with a Handkerciiief, 178. For the Murder of a Bastard Child, by folding it in a Cloth, 178. For Murder, by throwing a Child into a Privy, 179. For killing a Bastard Child, by Strangling, 180. For the Murder of a Child, by hiding and starving it, 181. For Murder, by Drowning, 181. For Murder, by secretly conveying Poison to the Deceased, 182. For Murder, by placing Poison so as to be mistaken for Medi- cine, 183. For Murder, by sending Poison, 185. For Murder, by Poisoning, 186. For forcing the Deceased to drink Spirits to Excess, 187. By forcing a sick Person into the Street, 187. By confining and starving an Apprentence, 188. Against a Woman for drowning her own Child, 189 For Murder with a Bludgeon, 190. INDEX. 313 N. NUISANCE. For erecting a Soap Manufactory near a Highway and Dwel- ling-House, 191. For mixing Lees, and boiling Tallow, Soap, ^c. 192. For keeping Hogs near a public Street, 192. For erecting Obstructions on a Navigable River, 193. For obstructing a public Street by leaving empty Drays in it, 194. Against the Inhabitants of a Town for not repairing a Highway, 195. For laying Rubbish in a Street, whereby a Carriage was overturn- ed, 196. For erecting a Building on a common Highway, 197. For keeping a disorderly House, 198. For keeping a common Bawdy House, 198. P. FALSE PERSONATING. Form of Indictment for personating the Proprietor of Consolidated Bank Annuities, and transferring the same, 199. PERJURY. For Perjury in an Affidavit to hold to Bail, in falsely swearing to a Debt, 200. For Perjury, by a Witness, on the Trial of an Issue in the Supreme Judicial Court, 201. For Perjury, in an Answer sworn to before a Master in Chancery, 202. For Perjury, in Answer to Interrogatories exhibited in Chancery, 204. For Perjury, by a Bankrupt, in his Examination before the Com- missioners in the Circuit Court of the United States, 206. For Perjury, in a Complaint before a Magistrate, 207. For Perjury, in filiating a Child, before a Justice of the Peace, 209. For Perjury, in giving Evidence on the Trial of an Issue on an Indictment for Perjury, 210. 40 314 INDEX. For Perjury, on a Trial in the Supreme Judicial Court in a Civil Action, 211. For Perjury, on the Trial of an Issue in an Action of Assumpsit, 212. For Perjury, in taking the Poor Debtors' Oath, &c, 213. SUBORNATION OF PERJURY. For Subornation of Perjury, by procuring a Woman to swear a Bastard Child upon an innocent Man, 217. For endeavouring to suborn a Person to give Evidence on the Trial of an Issue in the Supreme Judicial Court, 218. For persuading a Witness not to give Evidence against a Person charged with an Offence before the Grand Jury, 219. For Subornation of Perjury, on a Trial for Robbery, where the Prisoner set up an Alibi, 220. PIRACY. Against several, for Piratically attacking, taking, and carrying away a Ship, with Goods &c. on board, 221. For Piratically running away with a Vessel by the Mariners of the same Vessel, 222. For Piracy, by causing a Revolt in a Merchant Ship, 223. For piratically taking and running away with a Ship, Tackle? Cargo, &c. 224. Against a Captain or Mariner for voluntarily yielding up his Vessel to a Pirate, 225. Against a Seaman for laying violent Hands upon his Commander, with Intent to prevent his fighting in Defence of his Ship, 225. Against an Accessory to a Piracy before the Fact, 226. Against an Accessory to a Piracy after the Fact, 226. For breaking and boarding a Ship, assaulting &c. the Crew, and stealing &c. the Cargo, 227. For stabbing, casting into the Sea, and drowning the Deceased, 228. POLYGAMY. Indictment for having two Wives at the same Time, 229. Indictment for having two Husbands at the same Time, 229. INDEX. 315 SELLING UNWHOLESOME PROVISIONS. For Selling unwholesome Provisions : On the Statute of Massa- chusetts, 1784, c. 50, 230. At common law, for supplying unwholesome Bread, 230. R. RAPE. Form of an Indictment for a Rape, 23L For carnally knowing and abusing a female Child undar the Age ofTen Years, 231. Against two Persons for assaulting a married Woman witli Intent that one of them should ravish her, 231. RESCUE. Indictment for rescuing a Person in Custody of a Constable under a Justice's Warrant, 232. For rescuing Goods distrained for Rent, 233. For rescuing Cattle out of a Pound taken as Distress, Damage Feasant, 234. For breaking a Pound and letting out a Mare, 235. RIOT. Indictment for a Riot, 236. For a Riot and Assault, 236. For a Riot, Assault, and False Imprisonment, 237. For riotously assembling to prevent the Execution of an Act of the Legislature, relative to the Revenue, 237. For a Riot in the Theatre, and preventing the Performance of a Play, 238. For riotously assembling and hanging the Effigy of a Person, 239. For a Riot and pulling down an Out-House, 239. For a Riot in a House, and assaulting a Lodger, 240. For riotously attacking a Dwelling-House, breaking the Windows, &c. 240. For riotously breaking a Dwelling-House and removing Goods, 241. For a Riot, in breaking into a Dwelling-House on Pretence of an Execution, 242. 316 INDEX. Indictment for a Riot, breaking into a Room with offensive Wea- pons, &c., Assault and Battery in the Room, and breaking the Furniture, 242. For a Riot, by twelve Persons remaining an Hour after Proclama- tion read, 243. ROBBERY. — See Larceny and Robbery. SABBATH-BREAKING. For keeping an open Shop on the Lord's Day, 245. Against a Drover for travelling and driving Droves of Cattle oh the Lord's Day: On the 2d Section of the Statute, 246. For indecent and rude Behaviour within the Walls of a Place of Public Worship: On the 7th Section of the Statute, 247. For interrupting and disturbing Public Worship : On the 8th Sec- tion of the Statute, 247. SEPULCHRES OF THE DEAD. At Common Law, for digging up and carrying away a Dead Body out of a Church Yard, 248. For digging up a Human Body &c. : On the 1st Section of the Statute of Massachusetts, of February 28, 1831, 248. Against an Accessory before the Fact for digging up a Human Body : On the 2d Section of the Statute, 249. SODOMY AND BESTIALITY. For Sodomy, committed with a Boy, 250. For Sodomy, committed with a Beast, 250. T. TREASON. Form of an Indictment for Treason, by levying War against the United States, 251. For levying War against the State of Massachusetts: On the Statute of 1777, 252. INDEX. 317 For traitorously adhering to, and giving aid and comfort to the Enemies of the United States, 253. For levying War against the United States, 254. Another Precedent for Treason by levying War, 255. Another Form of an Indictment for Treason by levying War against the United States, 256. TRESPASS, Indictments for trespasses upon the statute of Massachusetts of 1785, ch. 28. For cutting down Trees growing for Ornament : On the first Sec- tion of the Statute, 257. Against a Person for throwing down and leaving open Bars, inclos- ing Land not his own : On the first Section of the Statute, 257. Against a Person for digging up and carrying away Stones and Gravel, on Land not his own : On the first Section of the Stat- ute, 258. Against a Person for carrying away Goods from a Wharf (or Landing-place), whereof he was not a Proprietor: On the first Section of the Statute, 258. Against a Person for breaking the Glass in a Building not his own: On the first Section of the Statute, 258. For wilfully breaking and defacing a Mile-stone : On the second Section of the Statute, 259. For cutting down Trees secretly in the Night Time : On the third Section of the Statute, 259. Forms of Indictments for preventing Trespasses, upon the addi- tional Act of Massachusetts, of 1818, ch. 3, § 2, 259. For breaking and injuring Trees and Shrubs : On the third Sec- tion of the Statute of 1818, ch. 3, 260. For entering on Grass-land, and carrying away Hay : On the second Section of the Statute of 1818, ch. .3, 260. For committing any of the Trespasses mentioned in the foregoing Act of 1818, ch. 3, on the Lord's Day : On the fourth Sec- tion of the Statute, 260. For committing a Trespass mentioned in the Act of 1818, ch. 3, in the Night Time : On the Fourth Section of the Statute, 261. 318 INDEX. U. USURY Form of an Indictment for Usury, 262. INFORMATIONS IN CRIMINAL CASES. Form of an Information in a Criminal Case, 264. INFORMATIONS QUO WARRANTO. Commonwealth v. John Breed, 266. Plea to the foregoing Information, 268. Information, quo Warranto, against S. F., Esq., for exercising the Office of Judge of Probate, without Warrant, 270. Form of a Judgment upon an Information in the Nature of a Q,uo Warranto : Entered by Order of Court in the Case of The Commonwealth v. Fowler, 273. The People of the State of New York, tx relatione, The Attor- ney General, against The Utica Insurance Company, 273. The Plea, 274. PLEADINGS IN CRIMINAL CASES. Plea to the Jurisdiction of the Court, 276. Replication to the above Plea, 276. Plea in Abatement for a Misnomer, 276. Replication to the Plea of Misnomer, 277. PLEAS IN BAR, IN CRIMINAL CASES. Plea of Auterfois Acquit, 278. Plea of Auterfois Convict, 278. Demurrer to an Indictment, 279. Joinder in Demurrer, 279. ' PLEA OF PARDON, 280. INDEX. 319 CERTIORARI. To the Court of Common Pleas, 282. WRIT OF ERROR. Writ of Error (coram nobis) in a criminal Case, where Judg- ment had been rendered in the Supreme Judicial Court, 283. Assignment of Errors, 283. WRITS OF HABEAS CORPUS. Writ of Habeas Corpus, ad Subjiciandum, 284. Habeas Corpus, ad Testificandum, 287. APPENDIX NOTES, 288. THE END. 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