fV*Ji*i*4>»^Vl^ .->t . . :3e 'tt M?Vltc. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW 1^ \^Q CASES ON CRIMINAL PROCEDURE (ABRIDGED EDITION) SELECTED FROM DECISIONS OF ENGLISH AND AMERICAN COURTS BY WILLIAM E. MIKELL, B. S. PROFESSOR OF LAW IN THE UNIVERSITY OF PENNSYLVANIA AMERICAN CASEBOOK SERIES JAMES BROWN SCOTT GENERAL EDITOR ST. PAUL WEST PUBLISHING COMPANY 1912 COPTBIGHT, 1910 BY WEST PUBLISHING COMPANY Copyright, 1912 BY WEST PUBLISHING COMPANY (Mik.Cr.Pb.Abk.Ed.) To WILLIAM DRAPER LEWIS, B.S., LL.B., Ph. D. who during many years of close association has been a constant friend, a helpful critic, and an inspiring colleague (iii)* 670177 THE AMERICAN CASEBOOK SERIES The first of the American Casebook Series, Mikell's Cases on Crim- inal Law, issued in December, 1908, contained in its preface an able argument by Mr. James Brown Scott, the General Editor of the Se- ries, in favor of the case method of law teaching. Until 1915 this preface appeared in each of the volumes published in the series. But the teachers of law have moved onward, and the argument that was necessary in 1908 has now become needless. That such is the case becomes strikingly manifest to one examining three im- portant documents that fittingly mark the progress of legal education in America. In 1893 the United States Bureau of Education pub- lished a report on Legal Education prepared by the American Bar As- sociation's Committee on Legal Education, and manifestly the work of that Committee's accomplished chairman, William G. Hammond, in which the three methods of teaching law then in vogue — that is, by lectures, by text-book, and by selected cases — were described and com- mented upon, but without indication of preference. The next report of the Bureau of Education dealing with legal education, published in 1914, contains these unequivocal statements: "To-day the case method forms the principal, if not the exclusive, method of teaching in nearly all of the stronger law schools of the country. Lectures on special subjects are of course still delivered in all law schools, and this doubtless always will be the case. But for staple instruction in the important branches of common law the case has proved itself as the best available material for use practically ev- erywhere. * * * The case method is to-day the principal method of instruction in the great majority of the schools of this country." But the most striking evidence of the present stage of development of legal instruction in American Law Schools is to be found in the special report, made by Professor Redlich to the Carnegie Foundation for the Advancement of Teaching, on "The Case Method in American Law Schools." Professor Redlich, of the Faculty of Law in the Uni- versity of Vienna, was brought to this country to make a special study of jiiethods of legal instruction in the United States from the stand- point of one free from those prejudices necessarily engendered in American teachers through their relation to the struggle for supremacy so long, and at one time so vehemently, waged among the rival sys- tems. From this masterly report, so replete with brilliant analysis and discriminating comment, the following brief extracts are taken. Speaking of the text-book method Professor Redlich says: "The principles are laid down in the text-book and in the profes- .sor's lectures, ready made and neatly rounded, the predigested essence (V) VI PREFACE of many judicial decisions. The pupil has simply to accept them and to inscribe them so far as possible in his memory. In this way the scientific element of inrtruction is apparently excluded from the very first. Even though the representatives of this instruction certainly do regard law as a science — that is to say, as a system of thought, a group- ing of concepts to be satit factorily explained by historical research and logical deduction — they are not willing to teach this science, but only its results. The inevitable danger which appears to accompany this method of teaching is that of developing a mechanical, superficial in- struction in abstract maxims, instead of a genuine intellectual probing of the subject-matter of the law, fulfilling the requirements of a science." Turning to the case method Professor Redlich comments as follows : "It emphasizes the scientific character of legal thought; it goes now a step further, however, and demands that law, just because it is a science, must also be taught scientifically. From this point of view it very properly rejects the elementary school type of existing legal edu- cation as inadequate to develop the specific legal mode of thinking, as inadequate to make the basis, the logical foundation, of the separate legal principles really intelligible to the students. Consequently, as the method was developed, it laid the main emphasis upon precisely that aspect of the training which the older text-book school entirely neg- lected — the training of the student in intellectual independence, in in- dividual thinking, in digging out the principles through penetrating analysis of the material found within separate cases ; material which contains, all mixed in with one another, both the facts, as life creates them, which generate the law, and at the same time rules of the law itself, component parts of the general system. In the fact that, as has been said before, it has actually accomplished this purpose, lies the great success of the case method. For it really teaches the pupil to think in the way that any practical lawyer — whether dealing with writ- ten or with unwritten law — ought to and has to think. It prepares the student in precisely the way which, in a country of case law, leads to full powers of legal understanding and legal acumen ; that is to say, by making the law pupil familiar with the law through incessant prac- tice in the analysis of law cases, where the concepts, principles, and rules of Anglo-American law are recorded, not as dry abstractions, but as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating, social and economic life of man. Thus in the modern American law school professional practice is preceded by a genuine course of study, the methods of which are perfectly adapted to the nature of the com- mon law." The general i)urpose and scope of this series were clearly stated in the original announcement: "The General Editor takes pleasure in announcing a series of schol- arly casebooks, prepared with special reference to the needs and limi- PRKFACB3 VU tr.tions of llic classroom, on tlie fundamental subjects of legal educa- tion, which, through a judicious rearrangement of emphasis, shall pro- vide adequate training combined with a thorough knowledge of the general principles of the subject. The collection will develop the law historically and scientitically ; English cases will give the origin and development of the law in England ; American cases will trace its ex- pansion and modification in America ; notes and annotations will sug- gest phases omitted in the printed case. Cumulative references will be avoided, for the footnote may not hope to rival the digest. The law will thus be presented as an organic growth, and the necessary con- nection between the past and the present will be obvious. ■'The importance and difficulty of the subject as well as the time that can properly be devoted to it will be carefully considered so that each book may be completed within the time allotted to the particular sub- ject. * * * If it be granted that all, or nearly all, the studies re- quired for admission to the bar should be studied in course by every student — and the soundness of this contention can hardly be seriously doubted — it follows necessarily that the preparation and publication of collections of cases exactly adapted to the purpose would be a genuine and by no means unimportant service to the cause of legal education. And this result can best be obtained by the preparation of a systematic series of casebooks constructed upon a uniform plan under the super- vision of an editor in chief. * * * "The preparation of the casebooks has been intrusted to experienced and well-known teachers of the various subjects included, so that the experience of the classroom and the needs of the students will furnish a sound basis of selection." Since this announcement of the Series was first made there have been publi-shed books on the following subjects : Administrative Law. By Ernst Freund, Professor of Law in the University of Chicago. Agency. By Edwin C. Goddard, Professor of Law in the University of Michigan. Bills and Notes. Second Edition. By Howard L. Smith, Professor of Law in the University of Wisconsin, and Underbill Moore, Pro- fessor of Law in Columbia University. Carriers. By Frederick Green, Professor of Law in the University of Illinois. Conflict of Lazi's. By Ernest G. Lorenzen, Professor of Law in Yale University. Constitutional Lazv. By James Parker Hall, Dean of the Faculty of Law, in the University of Chicago. Contracts. By Arthur L. Corbin, Professor of Law in Yale University. Vill PRF.FACB Corporations. Ey Harry S. Richards, Dean of the Faculty of Law in the University of Wisconsin. Criminal Law. By WilHam E. Mikell, Dean of the Faculty of Law in the University of Pennsylvania. Criminal Procedure. By William E. Mikell, Dean of the Faculty of Law in the University of Pennsylvania. Damages. By Floyd R. Mechem, Professor of Law in the University of Chicago, and Barry Gilbert, of the Chicago Bar. Equity. By George H. Boke, formerly Professor of Law in the Uni- versity of California. Equity. By Walter Wheeler Cook, Professor of Law in Yale Uni- versity. Volume L Volumes 2 and 3 in preparation. Evidence. By Edward W^ Hinton, Professor of Law in the Universi- ty of Chicago. Insurance. By William R. \^ance, Professor of Law in Yale Uni- versity. International Lazv. By James Brown Scott, Lecturer on International Law and the Foreign Relations of the United States in the School of Foreign Service, Georgetown University. Legal Ethics, Cases and Other Authorities on. By George P. Costigan, Jr., Professor of Law in the University of California. Partnership. By Eugene A. Gilmore, Professor of Law in the Uni- versity of Wisconsin. Persons (including Marriage and Divorce). By Albert M. Kales, late of the Chicago Bar, and Chester G. Vernier, Professor of Law in Stanford University. Pleading (Common Lazv). By Clarke B. Whittier, Professor of Law in Stanford University, and Edmund Al. Morgan, Professor of Law in Yale University. Property (Future Interests). By Albert M. Kales, late of the Chicago Bar. Property (Personal). By Harry A. Bigelow, Professor of Law in the University of Chicago. Property (Rights in Land). By Harry A. Bigelow, Professor of Law in the University of Chicago. Property (Titles to Real Property). By Ralph W. Aigler, Professor of Law in the University of Michigan. Property (Wills, Descent, and Administration). By George P. Costi- gan, Jr., Professor of Law in the University of California. Quasi Contracts. By Edward S. Thurston, Professor of Law in Yale University. Sales. By Frederic C. Woodward, Professor of Law in the University of Chicago. PUEFACB 1^ SurefysJi'fy. "Cy Crawford D. Honing, formerly Professor of Law in the University of Pennsylvania. Torts. By Charles INI. Plepburn, Dean of the Faculty of Law in the University of Lidiana. Trade Regulation. By Herman Oliphant, Professor of Law in Colum- bia University. Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer- sity of New York. It is earnestly hoped and believed that the books thus far published in this series, with the sincere purpose of furthering scientific training m the law, have not been without their influence in bringing about a fuller understanding and a wider use of the case method. 'a Wii,i.iAM R. Vaxce, General Editor. TABLE OF CONTENTS CHAPTER I. Section ^^^^ Jurisdiction and Venue 1 CHAPTER II. Prosecution ^^ CHAPTER III. Arrest. 1 . What Constitutes Arrest 22 2. Who May Arrest 24 3. Rights and Duties of Person Making Arrest 29 CHAPTER IV. Extradition 37 CHAPTER V. Proceedings before Magistrate 43 CHAPTER VI. Bail 48 CHAPTER VII. The Grand Jury 52 CHAPTER VIII. The Indictment. 1. Form and Requisites of the Indictment in General 57 I. The Caption 57 II. The Statement of the Offense 59 III. The Conclusion 66 IV. Duplicity, Repugnancy, and Surplusage 68 Mik.Cr.Pr.(Abridged Ed.) (xi) Xii TABLE OF CONTENTS CHAPTER IX. Thb Indictment — Continued. Section Pagp 1. Particular Averments 77 I. Averment of Facts and Circumstances Necessary to Consti- tute the Offense 77 II. Averment of Time and Place of the Offense 90 III. Description of Persons Connected with the Offense 95 IV. Description, Ownership, and Value of Property 100 V. Averment of the Degree of Defendant's Connection with the Offense 106 2. Joinder of Defendants 108 3. Joinder of Offenses 110 4. Amendments 112 CHAPTER X. Arraignment, Pleas, and Motions. 1. Arraignment and Pleas in General 116 2. Nolle Prosequi and Motion to Quash 122 3. Plea of Former Jeopardy 125 CHAPTER XI. Presence of Defendant at Trial 109 CHAPTER XII. Verdict 144 CHAPTER XIII. New Trial j^gg CHAPTER XIV. Arrest of Judgment 100 CHAPTER XV. Judgment, Sentence, and Execution 172 CHAPTER XVI. Appeax, Writ of Error, and Certiorari I79 TABLE OF CASES [cases CITED IN FOOTNOTES ABE INDICATED BY ITALICS. WHERE SMALL CAPITALS ARE USED, TnE CASE IS REFERRED TO IN THE TEXT] Page Adams v. People 3 Adams v. State 142 Anonymous 31, 32, 53, 67, 90, lOS, 113, 128, 144 Banson v. Ossley 106 Barnesciotta v. People 96 Bepley v. State 165 Blodgett V. Race 45 Burden, Ex parte 175 Burrell v. State 175 Burrough's Case 66 Campton v. State 171 Carlisle V. State 10 Champney's Case 132 Charge to the Grand Jury 47 Conim;= * * Field, J. I also am of opinion that this conviction should be af- firmed, and I have come to this conclusion on the ground that a ma- terial part of the offense was committed in the county of Middlesex. It was not the duty of the prisoner to remit the specific money which he had received, but it was his duty to remit that money or its equiva- lent at once to his employers ; i. e., in the course of the week in which he received it. On the ISth day of April the prisoner received the money in question at York, and on the 19th and 20th the prisoner was at Hull, and wrote letters to his employers in London, saying nothing about the receipt of the money at York. Again on the 21st, when at Doncaster, he wrote a letter to his employers in London ; and, in answer to a question left to them, the jury say that the prisoner in- tended that the prosecutors should understand from the statements in that letter that he had not then received the amount in question, and the prisoner had thus in effect rendered a willfully false account. Upon these facts the question arises whether any material part of this oft'ense was committed in the county of Middlesex? Starting with this, that the law presumes every man to be innocent till he is proved to be guilty, I am at a loss to find any evidence of the complete offense of embezzlement in Yorkshire, except the writing and posting there of the letters addressed to the prisoner's employers in Middlesex. On the authority of Evans v. Nicholson, 45 L. J. C. P. Ill, note 4, which decided that a letter, in which ,the defendant ad- mitted a debt and promised to pay it, addressed to and received by the plaintiff in the city of London, was evidence of an account stated 8 In state v. McGraw, 87 Mo. 161 (1SS5), it was held that a law was un- constitutional which authorized a prosecution for burglary in a county other than that in which the burglary was committed, into whicli the goods ac- quired by the burglary were taken. » Part of this case is omitted. 8 JURISDICTION AND VENUE (Ch. 1 in the city of London, I think that the letter of the 21st day of April, addressed to and received by the prosecutors, and intended to act on their minds, in Middlesex, was in effect an act done by the prisoner in Middlesex. The case to my mind is the same as if a man standing in one county with a long- spear or a pistol kills or injures a man in the adjoining county, or as if a man with one leg in one county and one in another does a criminal act. So as to a letter posted in one county and received in another. There may have been evidence on which the prisoner might have been properly convicted in Yorkshire ; but I am clearly of opinion that there was evidence which justified his conviction in Middlesex. In Rex V. Burdett, 4 B. & Aid. 95, which has been followed uni- versally, the libel was contained in a letter written in county L., but received in county M., and it was held that the defendant might be indicted in either county. The case of Rex v. Taylor, 3 Bos. & Pul. 596, also makes the matter very plain. In that case the prosecutor's servant received 10s. for him in the county of Surrey, after which the same evening he returned to his master, in the county of Middlesex, who asked him if he had brought the money, and the prisoner said he had not, and that it had not been paid to him ; and it was held that he was properly indicted in the county of Middlesex. Lord Alvanley, C. J., said : "The receipt of the money was perfectly legal, and there was no evidence that he ever came to the determination of appropriat- ing- the money to his own use until after he had returned into the county of Middlesex. It was not proved that the money was ever em- bezzled until the prisoner was in the county of Middlesex. * * * In such a case as this, even if there had been evidence of the prisoner having spent the money in Surrey, it would not necessarily confine the trial of the offense to the county of Surrey. But here there is no evidence of any act to bring the prisoner within the statute until he was called upon by his master to account." The act of nonaccounting is a continuing act, and extended in the present case to the time of the receipt of the prisoner's letter of the 21st day of April in the county of Middlesex. That was the first act from which it is possible to say with certainty that the prisoner intended to embezzle the money. Maule, J., put the matter in much the same way in Reg. v. Murdock [5 Cox, Cr. Cas. 3G3] : "It ap- pears to me that there was evidence to go to the jury that the offense was committed when the prisoner met his master in Nottingham, and, being asked by him for the money, did not pay over the amount." I think, therefore, that the conviction should be affirmed. Conviction affirmed.^" 10 Kelly, C. B., and Lindley and Manisty, JJ., delivered concurring opinions, and Iludillopton, B., a tli^-solltin;J: opinion. By statute in some states embezzlement is indictable In any county into which the accused carries the property. See Pen. Code Cal., >§ 7SC; People v. Garcia, 25 Cal. 531 (1S(M) ; Brown v. State, 23 Tex. App. 214, 4 S. W. 58S (18S7); Code Cr. Proc. Tex., art. 21f). At common law the receiver of stolen goods can be prosecuted only in the Ch. 1) JURISDICTION AND VENUE 9 If a man were accessory before or after the fact in another county than where the principal felony was committed, at common law it was dispunishable, but now by the statute of 2 & 3 Edw. VI., c. 24, the accessory is indictable in that county where he was an accessory, and shall be tried there, as if the felony had been committed in the same county. 1 Hale, P. C. 623. conntv where the goods were first received as stolen goods. Roach v. State, 5 C-old. (Tenn.) 39 (1S67). By statute in England, and In some states, the receiver of stolen goods may be prosecuted either in the county in which he first received the goods or in any county in which he at any time thereafter had them. 2 Russ. Cr. 238. See Wills v. People, 3 Parker, Cr. R. (N. Y.) 473 (1S57) ; Moseley V. State. 36 Tex. Cr. R, 5TS, 37 S. W. 736, 38 S. W. 197 (1896). In the absence of a statute, the offense of obtaining goods by false pretense can be prosecuted only in the county where the goods were first obtained, not in the county where the false pretense was made (Connor v. State, 29 Fla. 455, 10 South. 891, 30 Am. St. Rep. 126 [1892] ; Rex v. Buttery, cited in Reg. v. Ellis, [1899] 1 Q. B. 235) ; nor in a county into which the goods are afterwards carried (Reg. V. Stanbury, 9 Cox, C. C. 94 [1862]). The proper venue in forgery is the county where the act of making or altering the instrument was done. Commonwealth' v. Parmenter, 5 Pick. (Mass.) 279 (1827). And in uttering a forged instrument, the county in which the instrument was uttered. People v. Rathbun, 21 Wend. (N. Y.) 509 (1S39). Where the forged instrument is sent by mail from the county where It was forged to another county where it is used to defraud, the weight of authority is that the proper venue of the uttering is the latter county, in the absence of a statute to the contrary (People v. Rathbun, 21 Wend. [N. Y.] 509 [1839] ; State v. Hudson, 13 Mont. 112, 32 Pac. 413, 19 L. R, A. 775 [1893]), though some authorities are to the effect that the offense may be tried in the county where the letter was mailed (Perkin's Case, 2 Lewin, 150 [1826]). For the venue in libel at common law and under statutes, see Common- wealth V. Blanding, 3 Pick. (Mass.) 304, 15 Am. Dec. 214 (1825); Rex v. Burdett, 4 B. & Aid. 95 (1820) ; U. S. v. Smith (D. C.) 173 Fed. 227 (1909). In bisamy: People v. Mosher, 2 Parker, Cr. R. (N. Y.) 195 (1855) ; Houser V. People, 46 Barb, (N. Y.) 33 (1866) ; State v. Hughes, 58 Iowa, 165, 11 N. W. 706 (1SS2); State v. Smiley, 98 Mo. 605, 12 S. W. 247 (1889). In attempts: Griffin v. State, 26 Ga. 493 (1858). Cf. State v. Terry, 109 Mo. 601, 19 S. W. 200 (1891). Robbery: Sweat v. State, 90 Ga. 315, 17 S. E. 273 (1892). By St. 7 Geo. IV, c. 64, § 12 (1826), it is provided that, where any felony or misdemeanor shall be begun in one county and completed in another, it may be dealt with in any of the said counties in the same manner as if it had been actually and wholly committed therein. Similar statutes have been enacted in the United States. See Connor v. State. 29 Fla. 455, 10 South. 891, 30 Am. St. Rep. 126 (1892). Section 134 of the Code of Criminal Pro- cedure of New York provides: "When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county." See People v. Mitchell, 49 App. Div. 531, 63 N. Y. Supp. 522 (1900). Affirmed in 168 N. Y. 604, 61 X. E. 182 (1901). The Constitution of the United States provides as to crimes against the United States: "The trial of all crimes * * * shall be held in the state where the said crimes shall have been committed ; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." Article 3, § 2, cl. 3. "Where a county is divided, a criminal act done before the division is to be prosecuted in the particular new county in which is the place of the of- fense." White, P. J., in Hernandez v. State, 19 Tex. App. 408 (1SS5). 10 JURISDICTION AND VENDS (Ch. 1 CARLISLE V. STATE. (Court of Criminal Appeals of Texas, 1893. 31 Tex. Cr. R. 537, 21 S. W. 358.) Hurt, P. T.'^ * * * In the city of Denison, Grayson county, between the hours of 1 and 2 o'clock a. m. on the night of the 28th of April, 1892, while lying in bed with his wife and infant child, W. T. Sharman was shot with a shotgun by some person standing upon a ladder placed against the house, shooting over the top of the window sash, which had been lowered about six inches. Charles Luttrell was indicted as principal, tried, and convicted of murder of the first de- gree with the death penalty, appealed to this court, and the judgment was affirmed. On May 25, 1892, John T. Carlisle was indicted, being charged as an accomplice, also, for the murder of W. T. Sharman, was on the 28th of October, 1892, tried and convicted of murder in the first degree, with the death penalty assessed against him also. From this conviction and judgment he appeals. The acts constituting appellant an accomplice occurring in Collin county, counsel for appellant contends that Grayson county, the coun- ty of the homicide, was without authority to try the case. If an ac- complice to a felony be guilty of a distinct offense from the felony •committed by his principal, the position of counsel is well taken. We have no definition of a crime named or called "accomplice," but we are informed by our Code what acts and things will make a person doing them an accomplice to all felonies to which there can be an accomplice. We are aware that there are numerous opinions of learn- ed courts strongly intimating that an accessory before the fact (our accomplice) is guilty of a distinct offense from that of his principal. We desire to notice the reason or legal ratiocination of these opinions. The following proposition is supported by a strong line of authori- ties: Accessory before the fact in one state, to crime committed in another, cannot be punished in the state where the substantive crime is committed. The reasoning by which this proposition is sustained is that, as the acts constituting a person an accessory occurred in a state other than that in which the principal committed the crime, the state of the substantive crime cannot punish those acts or the perpe- trators, because done beyond the jurisdiction of the state in which the crime is committed by the principal. Let us examine this subject, in the light of the same authorities which support the above proposition, a little further. A. lives in Texas. He procures B., who also lives in Texas, to go to Missouri, and there commit an act which is a felony in Missouri. B. is innocent of anything wrong in what he does. These same au- thorities hold that Missouri would have authority to try and punish A. Upon what ground? Because A. would be the principal. Again, A. employs B. to go to Missouri, and there commit a misdemeanor. 11 Part of this case Is omitted. Ch. 1) JURISDICTION AND VENUB 11 B., with full knowledge of the criminal intent of A., would be guilty as a principal ; and, as it was a misdemeanor, all would be principals, and Missouri would have authority to punish A. when in fact A. had done no act whatever in Missouri, except through B. Again, A. sends B. to Missouri armed and equipped for the purpose of murder- ing C, being instigated thereto by A. Missouri would not have au- thority to try and punish A., because all of his acts were done in Tex- as, and because he was accessory and not principal. Now for the dilemma. Suppose Missouri should by statute make accessories before the fact principals, as several states have done, then she would have authority to try and punish A. for the murder of C. when A. had done no act in Missouri personally, acting alone through his guilty agent, B. What is the result of such doctrine? It is that the power or au- thority to punish acts committed beyond the border of the state, which are crimes within the state, depends upon technical distinctions between felonies and misdemeanors, accessories and principals, or whether the agent was guilty or innocent, and not upon the fact that the crim- inal act was or was not committed in the state. There is another line of authorities resting upon solid foundation. The doctrine is this: That distinctions between accessories and prin- cipals rest solely in authority, being without foundation either in natural reason or the ordinary doctrine of law; for the general rule of law is that what one does through another's agency is to be re- garded as done by himself. In this state there is no distinction be- tween the punishment of an accomplice and a principal. Why? Be- cause the crime is the same. In morals there are circumstances in which we attach more blame to the accomplice than to his principal ; as, when a husband commands his wife, or master his servant, to do for his benefit a criminal thing, which in his absence is done reluctant- ly, through fear or affection overpowering a subject mind. That the crime committed by the accomplice is the same as committed by his principal is evident. This proposition rests upon solid legal ground. In 1 Broom. Leg. Max. (2d Ed.) 643, we find this maxim: "The prin- ciple of common law, 'qui facit per alium, facit per se,' is of universal application both in criminal and civil cases." If ?ippellant be guilty, of what offense is he guilty? He is guilty of murder of the first degree. Why is he guilty of murder of the first degree? Simply because he, with his malice aforethought, ex- pressed through his agent and tool, Luttrell, killed W. T. Sharman. He is guilty because Luttrell's act was his act; Luttrell being his agent. Appellant is guilty of the murder of Sharman in Grayson county, though the acts constituting him an accomplice may have all occurred in Collin county. Why? Because, when his agent Luttrell shot and killed Sharman in the city of Denison, Grayson county, it was appellant, also, who, through Luttrell, shot and killed him in Grayson county. * * * We are of opinion that the offense of the accomplice and his prin- cipal is the same, and, if at all, his crime was murder of the first de- 12 JURISDICTION AND VENUE (Ch. 1 gree committed in Gra3'son county, and hence the venue of the case was in Grayson county. Some further observations on this subject. We desire to call at- tention to the very wise remark of Judge Alarcy in People v. Mather, 4 Wend. (N. Y.) 229, 256 (21 Am. Dec. 122). He says: "Writers on criminal law make some difference between the offense of prin- cipal and accessory, but it is chiefly as to the order and mode of proceeding against them." By statute of New York it is provided that all suits, informations, and indictments for any crime or misde- meanor, murder excepted, should be brought within three years after its commission. The word "murder" was held to include as well ac- cessories before the fact as principals. If an accomplice is guilty of a distinct felony from that of his principal, then a prosecution for being an accomplice to murder is barred by three years, for such an offense is not named in the statute regulating limitations. The indictment is sufficient, and not obnoxious to the objections made to it. The evidence complained of, under the circumstances of this case, was admissible. The evidence amply supports the verdict. The judgment is aflfirmed. Judges all present and concurring.^^ HEWITT V. STATE. (Supreme Court of Florida, 1901. 43 Fla. 194, 30 South. 795.) Mabry, J.-^ In October, 1898, plaintiffs in error, Dick Hewitt and Lum Hewitt, were indicted in Bradford county for the murder of J. T. Johnson, and plaintiff in error, Moss Hewitt, and one Minnie Hew- itt, were jointly indicted with them as accessories before, the fact of said murder. Upon a trial of the case in Bradford county in Janu- ary, 1899, the jury acquitted Minnie Hewitt and disagreed as to the 12 See, also. People v. Wiley, 65 Hun. 624, 20 N. Y. Sur)p. 445 (1S92). But see People v. Hodges, 27 Cal. 340 (ISCj) ; Commonwealth v. Pettes, 114 Mass. 307 (1S73). "The olfeuse is compounded of the connivance of the accessory and the actual killing by the principal felon, and the crime of the accessory, though inchoate in the act of counseling, hiring, or commanding, is not consummate until the deed is actually done. The law in such case holds the accessory before the fact to be guilty of the murder itself, not as principal, it is true, but as accessory before the fact ; for it is the doing of the deed, and not the counseling, hiring, or commanding, that makes his crime complete, and it is for the murder that he is indicted, and not for the counseling or procuring. We hold, therefore, that the locus in quo of the offense of an accessory before the fact to the crime of murder is the county in which the murder is done, and that the jurisdiction is there. ♦ » • The crime of the accessory be- fore the fact being only complete when the murder is done, the jurisdiction for his trial is where the mui'der is dune. This is 'the county in which the crime was committed, in the sense of the Constitution.'" McWhorter, J., in State V. Ellison. 49 W. Vn. 74. .^S S. E. 574 (IDOl). In U. S. V. Ramsay, Hempst., 481, Fed. Cas. No. 16.115 (1847). it was held that, under the act of congress giving the circuit court jurisdiction of niurdor. such courts did not acquire jurisdiction of the crime of accessory to murder. 18 Part of this case is omitted. Zh. 1) JURISDICTION AND VENUE 13 Other defendants. The case came on for trial at another t£rm of court in Bradford county, held in October, 1899, and after the exhaustion of two special venires, one for one hundred jurors and the other for twenty-five, and the issuance of another for thirty jurors, the court made the following order, viz.: "Came again the defendants, each in his own proper person and attended by his counsel, whereupon, it appearing to the court that a qualified jury cannot be obtained in this county to try said case, now, therefore, it is considered that said case be and the same is hereby transferred and the venue changed to the circuit court of Duval county for trial." The order further pro- vided for the transmission of the necessary papers to Duval county. It appears from a transcript of the proceedings in Bradford county that, in addition to the regular panel of jurors for the terms when the indictment was found and when the mistrial occurred, a special venire of one hundred jurors was served for the last-mentioned term. When the court made the order changing the venue on the unsuccess- ful effort to obtain a jury, it appears that defendants neither requested it nor interposed any objections thereto. The case came on for trial in Duval county without any objection on the part of defendants, and thereupon Dick Hewitt and Lum Hew- itt were convicted of murder in the second degree, and ]\,Ioss Hewitt was convicted of being accessory before the fact of said offense. From the judgment of the court imposing the sentences of the law upon the defendants, writ of error has been sued out by them, and two grounds of error are presented for consideration, viz. : First, the court erred in changing the venue from Bradford county; second, Moss Hewitt should be discharged because under the laws of Florida a party cannot be convicted as being an accessory before the fact to murder in the second degree. Our present Constitution (section 11, Declaration of Rights) de- clares that "in all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed." This provision was not contained in the Constitution of 1868. Section 2358, Revised Statutes, provides that "all criminal causes shall be tried in the county where the offense was committed, except when otherwise provided by law." It is pro- vided in section 2928, Revised Statutes, that "the judge of the circuit court may order a change of venue in all criminal cases, when he shall be satisfied that it is impracticable to get a qualified jury to try the same in the county in which the crime was committed," and the change hereby authorized may be ordered as provided in section 2929 "upon the application either of the prosecuting attorney or of the de- fendant upon affidavit setting forth the necessity for such change." By chapter 4394, laws 1895, it is enacted "that whenever it shall be made to appear to the satisfaction of the presiding judge of any of the circuit courts of this state that the venue of any cause, civil or criminal, then pending in such court, should for any of the grounds 14 JURISDICTION AND VENUE (Ch. 1 now prescribed by law be changed, it shall be in the power and dis- cretion of such judge to change the venue of such cause, civil or crim- inal, as the case may be, from the circuit court of the county where such cause is at the time pending to the circuit court of any other county within the same circuit, but said judge shall not be compelled to trans- fer said cause to any adjoining county." Other provisions as to trans- fer of causes need not be mentioned. The provision in our Constitution in reference to the right of trial' by an impartial jury in the county where the crime is committed is an important one to the accused. At common law a defendant had a right to be tried in the county in which the offense was alleged to have- been committed, where he was surrounded by the influences of a good character if he had established one, and where the witnesses were accessible for the purposes of a trial. If an impartial trial could not be had in such county, the practice was to change the venue to some other county where such trial could be obtained. The abuse of the right to change the venue to the detriment of the accused would be serious to him, and no doubt constitutional provisions like ours were designed to permanently secure this right of trial by an impartial jury in the county where the offense is alleged to have been committed. Some courts have held that the guaranty is not only of an impartial trial, but also a trial in the county where the offense was committed, and that it was not competent for the Legislature to provide for a transfer to another county for any cause without the consent of the accused. Armstrong v. State, 1 Cold. (Tenn.) 337; Kirk v. State, Id. 344; State v. Knapp, 40 Kan. 148, 19 Pac. 728. Where a trial by an impartial jury can be secured in the county where the crime is com- mitted the accused cannot be deprived of a trial there, even under sanction of legislative action. If he applied for a change of venue and it be granted on his request, it may very properly be said that he has waived the right and no question can arise in reference to it. We do not think it was the purpose of the framers of the Constitu- tion to force a trial in a county where an impartial jury cannot be had. as to do so would defeat the greater and more important right of a speedy and public trial by an impartial jury. State v. Miller, 15 Minn. 344 (Gil. 277). Our statute is comprehensive enough to authorize the court to direct a change of venue when an impartial jury cannot be secured in the county where the offense is alleged to have been com- mitted, and limiting it to the impossibility of securing an impartial jury in that county, we think it is constitutional. It is not contended in this case that an actual necessity for the change did not exist when the order changing the venue was made. The only point of contention under this head is that the law authorizing the change was unconstitu- tional. The record clearly indicates that the trial court put the question of obtaining an impartial jury in Bradford county to actual test, and in such a case we do not conceive that the provision of our Constitu- tion was intended as a barrier against the change. The act of the Ch. 1) JURISDICTION AND VENUE 15- Legislature may and should have effect in so far as it does not con- flict with the Constitution, and to the extent of authorizins: a chansfe under circumstances disclosed in this case we are of opinion that there is no conflict. Care should, however, always be exercised to avoid any deprivation of the right of the accused to his constitutional mode of trial in applications to change the venue without his con- sent. * * * Finding no error in the points presented, the judgment must be affirmed; and it is so ordered.^* 1* See, also. State v. Miller, 15 Minn. 344, Gil. 277 (1870). Contra, State v. Denton, 6 Cold. (Tenn.) 539 (1869) ; State v. Kindig, 55 Kan. 113, 39 Pac. 1028 (1895). The matter of change of venue for prejudice in the county Is now generally regulated by statute. Whether the application for such change shall be granted is usually made to rest in the sound discretion of the judge, to whom the application is properly made ; and the exercise of that discretion will not be reviewed on appeal, unless it has been clearly abused. Smith v. State, 145 Ind. 176, 42 N. E. 1019 (1S9G) ; State v. Hawkins, 23 Wash. 289. 63 Pac. 258 (1900). For discretion of court, when the application is founded on prejudice of the judge, see State v. Hawkins. 23 Wash. 289, 63 Pac. 258 (1900); State v. Thomas, 32 ISIo. App. 159 (18SS) ; State v. Griustead, 10 Kan. App. 78. 61 Pac. 975 (1900). For procedure for change of venue on ground of disqualification of judge, see Kelly v. Ferguson, 5 Okl. Cr. 316, 114 Pac. 631 (1911). IS PROSECUTION (Ch. 2 CHAPTER II PROSECUTION The next step towards the punishment of offenders is their prose- cution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury, or without such previous finding. The former way is either by present- ment or indictment. L A presentment, generally taken, is a very comprehensive term, including not only presentments properly so called, but also inquisi- tions of office and indictments by a grand jury. A presentment, proper- ly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king; as the presentment of a nui- sance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown upon evidence laid before them. Some of these are in themselves convic- tions, and cannot afterward be traversed or denied; and therefore the inquest or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony ; of deodands and the like ; and presentments of petty offenses in the sheriff's tourn or courtleet, whereupon the pre- siding officer may set a fine. Other inquisitions may be afterwards traversed and examined, as particularly the coroner's inquisition of the death of a man when it finds any one guilty of homicide; for in such cases the offender scr presented must be arraigned upon this inquisition and may dispute the truth of it, which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely. II. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to re- turn to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which on the part of our lord the king shall then and there be commanded them. The remaining methods of prosecution are, without any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation. One of these, by the common law, was when a thief was taken with the mainor; that is, with the thing stolen upon him in Ch. 2) PROSECUTION 17 nianu. For he might, when so detected flagrante delicto, be brought into court, arraigned and tried without indictment, as, by the Danish law, he might be taken and hanged upon the spot, without accusation or trial. But this proceeding was taken away by several statutes in the reign of Edward the Third, though in Scotland a similar process remains to this day. So that the only species of proceeding at the suit of the king, without a previous indictment or presentment by a grand jury, now seems to be that of information. III. Informations are of two sorts: First, those which are partly at the suit of the king, and partly at that of a subject; and, secondly, such as are only in the name of the king. The former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to the use of the king, and another to the use of the informer, and are a sort of qui tam actions (the nature of which was explained in a former book), only carried on by a crim- inal instead of a civil process, upon which I shall therefore only ob- serve that, by the statute 31 Ehz. c. 5, no prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king and in part to the prosecutor, can be brought by any common informer after one year is expired since the commission of the offense; nor on behalf of the crown after the lapse of two years longer; nor, where the forfeiture is originally given only to the king, can such prosecution be had after the expiration of two years from the com- mission of the oft'ense. The informations that are exhibited in the name of the king alone are also of two kinds: First, those which are truly and properly his own suits, and filed ex officio, by his own immediate officer, the At- torney General; secondly, those in which, though the king is the nominal prosecutor, yet it is at the relation of some private person or common informer, and they are filed by the king's coroner and at- torney in the Court of King's Bench, usually called the master of the crown office, who is for this purpose the standing officer of the pub- lic. The objects of the king's own prosecutions, filed ex officio by his own Attorney General, are properly such enormous misdemeanors as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offenses so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal, which power, thus necessary not only to the ease and safety but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations, filed by the master of the crown office upon the complaint or relation of a private subject, are any gross and notorious misde- meanors, riots, batteries, libels, and other immoralities of an atrocious Mik.Cr.Pb.(Abkidged Ed.) — 2 18 PKOSECUTION (Ch. 2 kind, not peculiarly tending to disturb the government (for those are left to the care of the Attorney General), but which, on account of their magnitude or pernicious example, deserve the most public animad- version. 4 Black. Comm. 301 et seq. A second sort of proceeding in cases capital without indictment is where an appeal is brought at the suit of the party, and the plaintiff is nonsuit upon that appeal, yet the offender shall be arraigned at the king's suit upon such appeal. 2'Hale, P. C. 149. STATE V. ANDERSON. (Supreme Court of New Jersey, 187S. 40 N. J. Law. 224.) Beasley, C. J.^ From the facts agreed upon, it appears that there are two indictments in the county of Passaic against the defendant: The one for the sale of ardent spirits without license, and the other for keeping a disorderly house, by frequently selling therein ardent .spirits contrary to law. Both offenses were committed in the city of Paterson, in which city there was, at the time in question, an ordi- nance forbidding the keeping of a disorderly house within the city, under a penalty of $35. By the act approved March 26, 1874 (Rev. St. 1874, p. 493), it is declared that the provisions of the thirty-seventh section of the act concerning inns and taverns, and those of the supplements thereto, approved respectively March 8, 1848, and February 20, 1849, which are the clauses making it an indictable offense to sell ardent spirits without license, shall not thereafter apply to offenses committed in any of the incorporated cities of this state, the ordinances of which shall provide for the punishment of the unlicensed sale of spirituous liquors, and for the punishment of the same on Sunday. The second section of the same statute enacts that, where the ordinances of such cities provide for the punishment of the offense of keeping a disorderly house, it shall not thereafter be lawful to prosecute, by indictment, any person accused of keeping a disorderly house in such city, where the alleged offense consists only of the continuous or frequent violation of the provisions of the laws above mentioned inhibiting the sale of ardent spirits by unqualified persons. * * * Is the act constitutional? The keeping of a disorderly house is a crime indictable at common law, and in this state it is punishable by tine and imprisonment in the state prison. Therefore it is clear that if this offense can, for the purpose of crimination, trial, and punishment, be put into the hands of these municipal authorities, it follows that all 1 Tart of t'.iis case is omitted. Ch. 2) PROSEctrriON 19 common-law offenses of the same grade can be, in like manner, so deposited. This, I think, cannot be conceded. Such an arrangement would, in a very plain way, infringe an important provision of the Constitution of this state. Article 1, § 9, of that instrument declares that "no person shall be held to answer for a criminal ofifense, unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace," etc. The purpose of this clause was to prevent the bringing of any citizen under the reproach of being arraigned for crime before the public, unless, by a previous examination taken in private, the grand inquest had certified that there existed some solid ground for making the charge. It took from the law officer of the state, the Attorney General, one of the established prerogatives of his office— that of filing his information against supposed offenders, and thus putting them on trial at his own volition. The reputation of every man was thus put under the care of a single specified body. The language of the consti- tutional clause is very comprehensive, and the specified exceptions show conclusively that it was intended to cover the residue of the en- tire field of criminal accusation. In the presence of such a prohibition, how then is it permissible to put a man on trial before a city court, charged with this common-law offense, without the preliminary sanc- tion of a grand jury? If it be said the punishment is only a fine, the answer is : The restraining clause in question has nothing to do with the result or effect of the trial, its object being to save from the shame of being brought before the bar of a criminal court, except in the authorized method after an antecedent inquisition. I am clearly of opinion that a trial of a person for this offense before the municipal court would be an act utterly void. This conclusion also has led me to tlie further result that the clause of the statute in question must be held to be a nullity. The declara- tion that was intended to prohibit the trial of the offense of keeping a disorderly house by an indictment is too dependent on the establish- ment of another mode of trial and punishment to permit it to stand as an independent provision. The repeal of the old method of prosecu- tion, and its substitute, are part of a scheme, and, as the scheme fails, the entire section must fail. The present indictment for this crime is sustainable. With regard to the other indictment, the questions involved are of a different character. The offense of selling liquor without a license is a purely statutory offense. Independently of a prohibition by the Leg- islature, such a sale is neither immoral nor illegal, and the lawmaker, therefore, can put it under such control as may be thought best. Not being in its nature an indictable offense, it can be made punishable by a penalty, without indictment. Such is the effect of the present law in certain localities, and I can perceive nothing unconstitutional or illegal in such an arrangement. This law, therefore, which gives the exclu- 20 PROSECUTION (Ch. 2 sive right of prosecution and punishment to the city of Paterson in this case, is vaHd and must be sustained. The sessions should be advised accordingly.' STATE V. KEL^L (Supreme Court of Missouri, 1SS3. 79 Mo. ."15.) Phillips, C.^ This is a prosecution for petit larceny, instituted in justice's court on the affidavit of a private citizen. On a trial had therein the defendant was fined $1. From this judgment he appealed to the circuit court, where, on a trial de novo, he was again found guilty and fined $10. The circuit court sustained a motion in arrest of judgment for certain defects in the proceedings unnecessary to particularize, as our decision is placed upon other grounds fatal to the proceeding. The state has brought the case here on appeal. Section 12, art, 2, of the state Constitution declares that "no person shall, for felony, be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; in all other cases offenses shall be prosecuted criminally by indictment or information as concurrent remedies." In Ex parte Slater, 72 Mo. 102, this court held that the word "in- dictment," as used in said section, "has a well-defined meaning, and must be accepted and understood as having been inserted in the Con- stitution with the meaning attached to it at common law." The court then quoted from Bacon's Abridgment and other common-law text- writers to show what were the qualities and incidents of an indictment as employed in the ancient proceedings. This being unquestionably a correct construction of the term "in- dictment" as used in the Constitution, it must follow that the term "information," as employed in the same section, should be subjected to the same common-law meaning. The text-books are uniform in defining an information to be an accusation or complaint exhibited against a person for some criminal offense, "either immediately against the king or against a private person, which, from its enormity or dan- gerous tendency, the public good requires should be restrained and punished, and differs principally from an indictment in this: That an indictment is an accusation found by the oath of twelve men. where- as an information is only the allegation of the officer who exhibits it. 5 Bacon's Abr. OD. 167, 170, 172; Hawk. P. C. 2G, § 4. 2 See, also, Natal v. Louisiana, 139 U. S. G21, 11 Sup. Ct. 636, 33 L. Ed. 2SS (1S91). "When the punishment will be only an amercement, the presentment Is treated, not as an accusation, but as testimony, and conclusive testimony. We believe that in Henry Ill's day anything that we could call a trial of a man upon an indictment for misdemeanor was exceedingly rare," Pollock and Mait. Hist. Eng. Law, H. CAO. 3 I'arL of this case is omitted. Ch. 2) PROSECUTION 21 The information at common law was uniformly exhibited by the Attorney General in certain cases, but at his discretion, except, per- haps, where directed by the House of Lords or House of Commons, or some of the high officials, as the lords of the treasury, etc. The king's coroner and attorney in the Court of King's Bench, called the crown officer, might file informations. This he might do, and usually did, at the prompting of some private individual. But no private citi- zen could beget a criminal prosecution on his mere affidavit or in- formation.'* 1 Bishop, Crim. Proc. (3d Ed.) 141, 143; Jacob's Law Diet, title "Information." Bishop (section 144) says: "In our states the criminal information should be deemed to be such, and such only, as in England^ is presented by the Attorney or the Solicitor General. This part of the English common law has plainly become common law with us. And as with us the powers, which in England are exercised by the Attorney General and Solicitor General, are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to be entitled, under our common law, to prosecute by information as a right adhering to their office, and with- out leave of court." Wharton lays down the same doctrine. Crim. Pr. and Pr. (8th Ed.) § 87. So jealous were the English people, from whom comes our com- mon-law heritage, of their personal liberty and the protection of due process of law, that they contended for a time earnestly against the summary proceeding by information as violative of the Magna Charta, and threw around its exercise many safeguards against abuses. If reasons were necessary to justify the conclusion reached in this opin- ion, they are numerous why no such right should be intrusted to a private citizen to inaugurate a proceeding like this upon his own affidavit. The injustice and abuse of such process, left at the caprice, spite, or malice of one not under the sanction of official duty, is ap- parent, and therefore the framers of the Constitution employed the term "information," without more, well understanding its common- law import and meaning. And we are not authorized, nor is the Legis- lature, to extend its meaning and use. * ♦ * The proceeding in question should have been dismissed; but, as the court below arrested the judgment, its judgment will be affirmed, and tlie prosecution dismissed. All concur.^ * "Informations at common law (which are very ancient in this court) were filed by the coroner, who did it upon any application, as a matter of course. The statute of 4 W. & M. c. 18, was therefore made to limit it, and other grounds there are by which the court has limited itself." Mansfield, C. J., in Res V. Robinson, 1 W. Black. 541 (1765). 6 Accord : State v. Dover, 9 N. H. 468 (1838). In some jurisdictions that permit prosecution by information, statutes- re- quire that no such information shall be filed until the accused shall have had a preliminary examination before an examining magistrate or officer, unless accused is a fugitive from justice or waives the examination. See Washburn v. People, 10 Mich. 372 (1862). 22 ARREST (Ch. 3 CHAPTER III ARREST SECTION 1.— WHAT CONSTITUTES ARREST An arrest is the apprehending and first restraining of a man's per- son, depriving it of his own will and liberty, and may be called the' beginning of imprisonment. Dalton's Country Justice, c. IIS. RUSSEN V. LUCAS, Sheriff, et al. (Court of King's Bench, 1824. 1 Car. & P. 153.) Action against the sheriff for an escape. The only point in dispute was whether a person named Hamer was arrested by the sherift''s of- ficer and escaped. The officer having the warrant went to the One Tun tavern in Jermyn street, where Hamer was ^sitting. He said, "Mr. Hamer, I want you." Hamer replied, "Wait for me outside the door, and I will come to you." The officer went out to wait, and Hamer went out at another door, and got away. Abbott, C. J. Mere words will not constitute an arrest; and if the officer says, "I arrest you," and the party runs away, it is no escape ; but if the party acquiesces in the arrest, and goes with the officer, it will be a good arrest. If Hamer had gone even into the passage with the officer, the arrest would have been' complete ; but, on these facts, if I had been applied to for an escape warrant I would not have grant- ed it. Nonsuit.* iSee. also, B.-ildwIn v. Mnrpliy, S2 111. 4S5 (1S76). In Grosse v. State, 11 Tex. App. 3(j4 (18S2), the marshal who had taken the prisoner in charge testifled that he took charge of the prisoner in his capaci- ty of marshal, but that he did not consider the prisoner under arrest The court said: "The question is not so much the intentions and opinions of the marshal in regard to the matter, but the actual situntion of the defendant; and he was uut only in acluul but intuntioual arrest." Ch. 3) ARREST 23 REGINA V. NUGENT. (Dundalk Spring Assizes, ISGS. 11 C!ox, Cr. Cas. 64.) The prisoner was indicted for that he, being lawfully in custody un- der a warrant of the Lords Justices of Ireland, unlawfully did escape out of the said custody. * * ♦ Battersby, J. * * * Evidence was given that two policemen had gone up to the prisoner's house, and had met him in the yard, and asked him to come into the parlor. On going in, they said the sub-in- spector of police wanted to see him. The prisoner asked what he wanted. They said he would tell him himself when he came. He asked, "Am I to consider myself under arrest?" They said he might. They did not, however, tell him there was a warrant for his arrest. One of the policemen then went away, and the other remained in the room with the prisoner. The prisoner asked if he might go into the next room for his dinner. The policemen said, "No" but that he might have his dinner brought in there. Shortly after, Sub-Inspector Gardiner came in. He held the warrant in his hand, and said to the prisoner that this was a warrant for his arrest. He did not read it, nor touch the prisoner. The prisoner said, "Is my name in it?" and came forward, as though to look at the warrant, turned the key in the door, and leaped out of the window. He was not arrested till nearly one year and a half afterwards. Sub-Inspector Gardiner admitted, on cross-examination, that the movements of the prisoner and his conversation were not of a nature to imply submission to the warrant, but merely a desire to gain time.- Falkiner, Q. C, for the prisoner, submitted that there was no evi- dence of an arrest. The policemen had made no arrest in the first in- stance. The prisoner had merely waited for the visit of the sub-in- spector at their request. Even if the prisoner was under compulsion, it was not a legal arrest, as the police had not a warrant, nor did they communicate its existence to the prisoner. On the arrival of the war- rant there was no arrest, actual or constructive. After Gardiner's ar- rival, the prisoner was never put under compulsion, nor made any sub- mission. His Lordship ruled that the arrest was perfect. The arrest by the policemen was good, subject to the production of the warrant after- wards. On the arrival of Gardiner with the warrant the arrest was complete. * * * Convicted.^ * Part of this cape Is omitted. 3 See. also. Willinms v. .Topes, ras. t Ilardw. 29S (1735); Shannon v. Jones, 7a Tex. 141, 13 S. W. 477 (1890). 24 ARREST (Ch. 3 SECTION 2.— WHO MAY ARREST It has been provided by the king and by his counsel that all, as well knights as others, who are of fifteen and more, ought to swear, that * * * if they shall hear hue and cry * * * they shall follow with their households and the men of their land, * * * and that they shall arrest, as far as may be in their power, those whom they regard as suspected without waiting for the mandate of the justice or of the viscount, g,nd that what they shall have done thereupon they shall certify to the justices or the viscount.* Bracton, fol. 116. COMMONWEALTH v. CAREY. (Supreme Judicial Court of Massachusetts, 1S53. 12 Cush. 246.) This was an indictment . for murder, tried at Cambridge, June 2, 1851, before the Chief Justice, and Fletcher and Bigelow, JJ., charg- ing the prisoner with the murder of George Heywood, at Lincoln, in the county of Middlesex, the 27th day of December, 1850. * * * Shaw, C. j.s * * * Upon the question of the legality of the arrest, the opinion of the court was that any person, whether a police officer or a private person, may lawfully arrest any one guilty of a felony, with a view to bring him before a mtigistrate, that proceedings may be further taken to bring him to punishment.® There was this difference, however, that a private person, Vv^ho ar- rests another on a charge of felony, does it at the peril of being able to prove a felony actually committed by the person arrested.'' But if a constable or other peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually * "The ordinary man seems to have been expected to he very active In the pursuit of malefactors, and yet 'to act at his peril.' This may be one of the reasons whj*, as any eyre roll will show, arrests were rarely made, except when there was hot pursuit after a 'hand-having' thief." 2 Pol. & Mait. Hist. Eng. Law, 581. » Part of this case Is omitted. • Accord: On fresh pursuit: Commonwealth t. Grether, 204 Pa. 203, 53 Atl. 7.^3 (1902) ; Rex v. Howarth, 1 Moody, 207 (1S2S). T Accord: Siegel, Cooper & Co. v Connor, 70 111. App. 116 (1S07). The more general rule Is stated by Savage, C J., In Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702 (1829), as follows: "If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested." Accord: Allen v. Wright, 8 C. & P. 522 (1838); Reuck v. Mc- Gregor, 32 N. J. Law, 70 (1800); Teagarden v. Graham. 31 Ind. 422 (1809); Brooks V. Commonwealth, 01 Pa. 332, 100 Am. Dec. G45 (ISUU) ; Carr 7. State, 43 Ark. 90 (1SS4). Ch. 3) ARRfiST 25 committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful. Nor is it necessary, when a third person makes a complaint to a peace officer against a person, and gives him in charge to the officer, that the accusation should in terms technically import a felony; but when the language in its popular sense would import such charge, it is sufficient, as where one says to a peace officer, I wish you to take such a person in charge for having in his possession counterfeit bills, the natural import is that he intends to charge the party accused with having in his possession counterfeit bills, knowing them to be counter- feit, and with an intent to pass the same, without which incidents such possession would be innocent, and import no criminal charge at all. But the court were further of opinion that a constable or other peace officer could not arrest one without a warrant for a crime proved or suspected, if such crime were not an offense amounting in law to fel- ony.* This is the old established rule of the common law, adopted and acted upon in this commonwealth, by which courts of justice are bound to be governed, until altered by the Legislature; that anciently there was a broad and marked distinction between felony and misdemeanor, the former being attended at common law with forfeiture of all the offender's goods ; that by the statutes of this commonwealth, and es- pecially by the revised statutes, the line of distinction between felonies and misdemeanors was in a great measure obliterated, and in many instances the law regarded as misdemeanors offenses of a greater mor- al turpitude than many felonies, yet it had not changed the rule in question, though perhaps it might be more wise in the Legislature to make the rule in question apphcable to offenses measured by a differ- 8 Accord: S. A. & A. Ry. Co. v. Griffin, 20 Tex. Civ. App. 91, 48 S. W. 542 (1S9S) ; In re Wav, 41 Jlich. 299, 1 N. W. 1021 (1879) ; Commonwealth V. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R- A. 206. 35 Am. St. Rep. 475 (1893). Except in breaches of the peace when the officer is present at the time the breach of the peace is committed. Coupey v. Henley, 2 Esp. 540 (1796); Shanley v. Wells, 71 111. 78 (1873); Pow v. Beckner, 3 Ind. 475 (1852) ; Cook v. Nethercote, 6 C. & P. 741 (1835) ; Fox v. Gaunt, 3 Barn. & Adolt 798 (1832). Or unless the offense may be reasonably supposed to eventuate in a felony, as woundin? in an affray. Coupey v. Henley, 2 Esp. 540 (1796) ; Shanley v. Wells. 71 111. 78 (1873). Statutes now very generally allow arrests by officers without warrant for misdemeanors done in the presence of the officer, or on immediate pur- suit of the offender. O'Brian v. State, 12 Ind. 369 (1859) ; Hanway v. Boult- bee, 4 C. & P. 350 (1830). "The authorities from the Year Books down to the most recent and ap- proved text-writers flow in one uniform course, and all agree that a justice of the peace, in a criminal case, may authorize any person whom he pleases to be his officer. All, however, consider that it is better to direct his process to the constable of the place where it is to be executed ; and this because no other constable (or, a fortiori, a private person) can be compelled to execute it." King, P., in Commonwealth v. Keeper, 1 Ashm. (Pa.) 183 (1828), -26 ARREST (Ch. 3 ent standard of aggravation, as by being punishable in the state prison, or otherwise. The court further held, under this rule, and as applicable to this case, that if Mr. Heywood suspected, or had reasonable cause to sus- pect, and acted on the suspicion, that the person had stolen money, or any other property, from the ticket office, inasmuch as such stealing would have been larceny, and of course felony, the arrest was lawful, and the homicide committed by the person in attempting to escape woulci be murder, and not manslaughter, and that this would be a ques- tion of fact for the jury. But, further, that the breaking open of the ticket office, though with an intent to steal, but without in fact steal- ing, was a misdemeanor, and not a felony, and the arrest of the prison- er for that offense, or on a suspicion and belief, by a peace officer, that he had committed that offense, would not be a lawful arrest. It was the breaking of an office in the daytime, and came under the provisions of Rev. St. c. 126, § 13. The court remarked that St. 1804, c. 143, § 5, which had been cited, had denominated the breaking a shop in the daytime, under certain cir- cumstances, a felonious offense ; yet two circumstances rendered that statute inapplicable to the present case. One was that it was accom- panied with the circumstance that such breaking be done when some one is in the house, and putting such person in fear, one of the aggra- vating circumstances belonging to the offenses of burglary and rob- bery ; and the other was that the statute has been repealed, without the re-enactment of any similar provision describing it as felony, but leav- ing it, as at common law, in the class of misdemeanors. If the de- ceased, therefore, in the present case, although legally qualified as a peace officer, understood, suspected, and believed only that the pris- oner hadl broken open the ticket office, though with an intent to steal, and, acting upon that knowledge, suspicion, or belief, arrested the per- son without a warrant, it was an unlawful arrest. In regard to the letter sent by Blaisdell to the deceased, the court were of opinion that it did not charge a felony, so as to make the ar- rest lawful without a warrant. It did not state or imply that the pris- oner had stolen anything from the Stony Brook depot. Breaking open the depot would, of itself, be an offense for which the perpetrator would be liable to a severe punishment, but in character it was a mis- demeanor, and not a felony ; and, therefore, charging the prisoner with having broken open that depot did not directly, or by implication, charge a felonious offense, for which he could lawfully be arrested without a warrant. It is distinguishable from the case before men- tioned, of giving one in charge for having counterfeit notes in his pos- session, because that charge necessarily implies a guilty knowledge and a guilty purpose, which, if they make the act criminal at all, make it a felonious one. Such were held to be the rules of law under which the court determined that the case must go to the jury. Upon the announcement of the foregoing rulings, the counsel for Ch. 3) ARREST 27 the prisoner stated that they were not aware of any testimony which would essentially modify or control the case as it was presented by the evidence submitted on behalf of the government ; and they proposed to submit it to the jury under the instructions of the court. The Chief Justice then charged the jury in conformity with the fore- going rulings, and they returned a verdict of guilty of manslaughter. STATE V. TAYLOR et al. (Supreme Court of Vermont, Windsor, 1S9S. 70 Vt. 1, 39 Atl. 447, 42 L. R, A. 673, 67 Am- St. Rep. 648.) Indictment of G. O. Taylor and John O'Donald for an assault with intent to kill and murder. Verdict and judgment of guilty, and sen- tence imposed at the respondents' request. The respondents excepted. Exceptions sustained. MuNSON, J,^ The alleged assault was committed upon Paul Tink- ham, constable of Rochester, and three persons acting under him, while they were effecting an arrest of the respondents and two others, without a warrant, on suspicion of felony. The officer acted upon in- formation received from Brandon by telephone, to the effect that the post office at Ticonderoga, N. Y., had been burglarized the night be- fore, and that four persons suspected of the crime had left Forestdale, going in the direction of Rochester. When met by the officer and his assistants, the suspected party were coming along the highway in a wagon, driven by a liveryman from Forestdale. The jury have found, under the charge of the court, that when Tink- ham met the respondents' party he said to them that he arrested them by the authority of the state of Vermont, and that, upon inquiry being made as to which was the officer, Tinkham was designated as such by one of his party. The remainder of the transaction must be taken to have been in accordance with the testimony most favorable to the re- spondents' claim. The purport of this was that one of the respondents' party then asked Tinkham if he had any papers, and that Tinkham thereupon pulled a revolver from his pocket, saying that was all the papers he needed, at once returning the revolver to his pocket; and that respondent Taylor then said, with an oath, "You can't take this party without papers;" and that upon this all four of the suspected persons commenced to get out of the wagon, some of them firing at the constable's party as they did so. The jury were instructed, in substance, that, if Tinkham had rea- sonable cause to suspect that the respondents had committed a bur- glary, he could arrest them without a warrant ; and that if he told them that he arrested them by the authority of the state of Vermont, and if they knew he was an officer, it was their duty to submit; and that, iJ • Part of this case is omitted. Ttie judgment was reversed on other grounds 28 ARREST (Ch. 3 they shot the officer under these circumstances, they were guilty of an assault with intent to murder. The respondents insist that the officer had no right to arrest without a warrant for a felony committed in an- other state; and that, if he had that right, there was a failure to dis- close his authority, which justified their resistance; and that, in any event, the manner of the arrest was such that the grade of the offense should have been left to the determination of the jury. It has been held in most of the states that, when one charged with the commission of a felony in one state escapes to another, he may be there arrested and detained before a demand for his return has been made by the governor of the state from which he has fled. In most of the cases where this doctrine has been enunciated the arrest was made upon the warrant of a magistrate. But in State v. Anderson, 1 Hill (S. C.) 327, it was held that an arrest by a private person, without a' warrant, could be justified by showing prima facie that a felony had been committed in another state, and that the party arrested was the perpetrator. It is clearly the tenor of the decisions that the machinery provided for the arrest of local offenders is available for the arrest of fugitives from another jurisdiction ; and it must follow that, when the arrest without warrant is made by an officer, it will be sufficient for his justification if it appear that he had reasonable cause to believe that the person arrested had committed a felony in another state, although more than this may be required for his detention, when brought be- fore a magistrate. So, in Ex parte Henry, 29 How. Prac. (N. Y.) 185, it was said that the officers were undoubtedly authorized to arrest the prisoner upon reasonable ground of suspicion, although there was no proof on the hearing that the suspicion was well founded. It is well settled that the person whose arrest is attempted must have notice of the authority and purpose of the person who undertakes to arrest him. The first case in which this matter is elaborately treated is that of Mackaley, reported in Cro. Jac. 279, and more fully in 9 Coke, 61. 4E * 4: It is frequently said in the text-books and in judicial discussions that an officer must show his warrant, or state the grounds of the arrest, if demanded. But an examination of the authorities will show conclu- sively that this is not a part of the arrest, but a duty which imme- diately follows it. Upon submitting to the officer, the arrested party is entitled to this information; but he cannot put off the arrest, and increase his chances of escape, by requiring an explanation in advance. * * * It is evident from the adjudged cases that in the rule above stated, as to what is essential in making an arrest, notice of the of- ficer's authority means notice of his official character, and not of the exact circumstances which authorize the arrest; and that notice of his purpose relates to the purpose to arrest, and not to the purpose of the arrest. It is beyond question that, in making an arrest by vir- tue of a warrant, the officer cannot be required to show the warrant, Cli.3) ARREST 29 or state the substance of it, until the arrest is accomplished. In this case there was no warrant, and the officer could arrest without one only in certain classes of cases. But we think the officer was no more obliged to state the conditions which authorized him to arrest without a warrant than he would have been to produce his warrant, or state the substance of it, in case of an arrest on warrant. All that the re- spondents could require, in the first instance, was a statement suffi- cient to show that the person who demanded their arrest was an of- ficer, acting in his official capacity. This was clearly covered by the designation of Tinkham as the officer, and by his statement that he arrested them by the authority of the state of Vermont. It appears, then, that the words of arrest employed by the officer were such as entitled him to an immediate submission to his authority, without answering the question regarding papers. * * * Excep- tions sustained, sentence vacated, and cause remanded. SECTION 3.— RIGHTS AND DUTIES OF PERSON MAKING ARREST ]\IACKALLEY'S CASE. (Court of King's Bench, 1611. 9 Coke, 65, b.) By the king's command all the judges of England were ordered to meet together to resolve what the law was, upon the said record ; and accordingly all the judges of England, and barons of the exchequer, met together the beginning of Hilary term now last past, and heard counsel learned upon this special verdict, as well of the prisoners, as of the king; that is to say, Serjeant Harris the younger, Anthony Diot and Randall Crewe of counsel with the prisoners, and Yelverton, Wa- ters, and Coventry for the king. And the matter was very well ar- gued by counsel learned on both sides at two several days in the same term ; and divers exceptions were taken to the indictment and to the verdict also. First, against the indictment five exceptions were moved. (1) Be- cause it appears that the arrest was tortious, and by consequence the killing of the serjeant could not be murder, but manslaughter, and they argued that the arrest alledged in the indictment was tortious, because it was made in the night, that is to say, 18 Diem Nov. inter horas quin- tam et sextam post meridiem, which appears to the court to be in the night, and the night is a time of rest and repose, and not to arrest any by his body, for thereof would ensue (as in hoc casu accidit) blood- shed; for the officer and minister of justice cannot have such assist- ance, nor can the peace be so well kept in the night, that is to say, in 30 ARREST ^ (Ch. 3 tenebris, as in the day, in aperta luce : and the prisoner cannot know the officer or ministers of justice in the night; nor can the prisoner so soon find sureties for his appearance in the night and thereby avoid his imprisonment, as he may in the day : and they cited 11 H. VII, 5, a, that the lord shall not distrain for his rent or services in the nicht. But It was answered by the counsel with the king, and in the end re- solved by all the judges and barons of the exchequer, that the arrest in the night is lawful, as well at the suit of a subject as at the king's suit; for the officer or minister of justice ought to arrest him when he can find him; for otherwise perhaps he will never arrest him. * * * As the officer or minister of justice may, by force of a warrant di- rected to him, arrest any at the king's suit either for felony or other crime in the night, so may he do at a subject's suit; for the king has no more prerogative as to the time to make an arrest, than a subject; for the arrest is to no other intent than to bring the party to justice; and it appears by the opinion of the court in the King's Bench in Se- maine's Case in the fifth part of my Reports, that the sheriffs may arrest in the night, as well at the suit of a subject, as at the king's suit. And in Heydon's Case in the fourth part of my Reports it is resolved, that if one kills a watchman in execution of his office, it is murder, and yet that is done in the night ; and if an affray be made in the night, and the constable, or any other who comes to aid him to keep the peace, be killed, it is murder; for when the constable commands them in the king's name to keep the peace, although they cannot dis- cern or know him to be a constable, yet at their peril they ought to obey him.^** It was also resolved, that although in truth between five and six of the clock in November is part of the night, yet the court is not bound ex officio to take conusance of it, no more than in the case of burglary, without these words, in nocte ejusdem diei, or noctanter. 2. It was objected, that Sunday is not dies jurisdicus, and therefore no arrest can be made thereon, but it is the sabbath, and therefore thereon everyone ought to abstain from secular affairs for the better worship and service of God in spirit and truth. As to that it was answered and resolved, that no judicial act ought to be done on that day, but ministerial acts may be lawfully executed on the Sunday ; for otherwise peradventure they can never be executed ; and God permits things of necessity to be done that day; and Christ says in the Gos- pel, "Eonum est benefacere in Sabbatho." * * * 4. It was objected, that the said arrest found by the verdict was not lawful, for the serjeant in this case ought to have, wiicn he ar- rested him, shewed at whose suit, out of what court, for what cause he made the arrest, and in what court it is returnable, to the intent, that if it be for any execution, he might pay the money, and free his body; and if it be upon mean process, either to agree with the party to put 10 Tart of tliis cape is omitted. Ch. 3) ARKEST 3t in bail according to the law, and to know when he shall appear, as it is resolved in the Countess of Rutland's Case, in the sixth part of my Reports, f. 54. But in the case at bar the serjeant said nothing but "I arrest you in the king's name, at the suit of Mr. Radford," and so the arrest not lawful, and by consequence the offense is not murder. As to that it was answered and resolved, that it is true that it is held in the Countess of Rutland's Case, that the sheriff, etc., or serjeant ought upon the arrest to show at whose suit, etc., but that is to be intended when the party arrested submits himself to the arrest, and not when the party (as in this case Murray did) makes resistance and interrupts him, and before he could speak all his words, he was by them mortally wounded and murdered, in which case, the prisoners shall not take advantage of their own wrong. It was also resolved, that if one knows that the sheriff, etc., has process to arrest him, and the sheriff, etc., coming to arrest him, the defendant to prevent the sherift"'s arresting him, kills him with a gun or any other engine or weapon, before any arrest made, it is murder ; a fortiori in the case at bar, when he knew by the said words, that the serjeant came to ar- rest him. * * * 6. It was objected, that the serjeant at the time, nor before the ar- rest showed the prisoner his mace ; for thereby he is known to be the minister of the law, and from thence he has his name, S. Serviens ad clavam; et non allocatur for two causes: (1) Because the jury have- found, that he was serviens ad clavam dicti vicecomitis, et juratus, et cognitus, et minister cur; and a bailiff* sworn and known need not (al- though the party demands it) show his warrant ; nor any other special bailiff' is not bound to show his warrant, without demand of it (8 Edw. IV, 14, a ; 14 Hen. VII, 9, b; 21 Hen. VII, 23, a), and where the books speak of a known bailiff, it is not requisite that he be known to the party who is to be arrested, but if he be commonly known it is suffi- cient. (2) If notice was requisite, he gave sufficient notice when he said, "I arrest you in the king's name," etc., and the party at his peril ought to obey him; and if he has no lawful warrant, he may have his action of false imprisonment. So that in this case without question the serjeant need not show his mace; and if they should be obliged to show. their mace, it would be a warning for the party to be arrested to fly. - * * ANONYMOUS. (Upper Bench, 1G50. Style, 23S.) The court was moved that one was arrested upon a day of thanks- giving appointed by Parliament, and that he was forced to put in bond to the sheriff for his appearance, and therefore it was prayed that the party arrested might be discharged, and that the bond given to the sheriff might be delivered up. 32 ARREST (Ch. 3 RoLiv, the Chief Justice, answered : Indict the bailies that made the arrest, or brini::^ your action against them, if you please, for we will not discharge the party arrested.^^ ANONYMOUS. (Upper Bench, 1G53. Style, 395.) The court was moved to discharge one Cullins, that was arrested as he was attending the court to give testimony as a witness in a cause, and for an attachment against the parties that did arrest him. German, Justice (absente, Roll, Chief Justice)., Take a supersede- as, and let the parties show cause why an attachment shall not be granted against them that arrested him/- UNITED STATES v. RICE. ^Circuit Court, W- D. North Carolina, 1S75. 1 Hughes, 5G0, Fed. Cas. No. 1G,353.) On the 15th of last September, Andrew Woody, of Spring Creek, Madison county, was killed by Noah H. Rice, a United States deputy marshal, who was endeavoring to serve a capias on him for violation of the internal revenue laws. From facts developed before the court it appears that Woody had expressed a determination to resist any process which might issue against him, and had threatened to kill the defendant, Rice, if he attempted to arrest him. When this officer came upon Woody, the latter was armed with a rifle. His demeanor was hostile, and when commanded to surrender he so acted as to impress the officer with the belief that his intention was to shoot him, and in self-defense he fired upon Woody wdth fatal efi'ect. Rice came to Asheville and surrendered himself to the authorities, was examined by Commissioner Watts on application for bail, and committed to jail. His case was finally removed to the United States court. On Tuesday, May 11, 1875, he was placed upon trial for his life. The jury hav- ing requested full instructions from the bench, they were given as follows by Dick, J.^' As this is a case of considerable importance to the de- fendant, and also to the due administration of justice, I have deemed 11 By St. 29 Car. IT, c. 7. the service of all processes, warrants, orders, etc., on Sunday, were made unlawful, except for treason, felony, or breach of the peace. Under this statute it was held thnt any offense which sulijected the party to an indictment was constructively a breach of the peace. See Pearce v. Atwood, 13 .^lass. 347 (181 G). 12 See Carle v. Delesdernier, 13 Me. 3fi3. 29 Am. Dec. 50S (1S36) ; State T. Polachcck, 101 Wis. 427, 77 N. W. 708 (1898). 13 Part of the charge is omitted. Ch. 3) ARREST 33 it proper to commit to writing my instructions to the jury upon the questions of law involved. * * * It is conceded that the alleged homicide was committed by the de- fendant, and he places his defense upon the ground that he was a reg- ular constituted officer of the United States, and had in his hands at the time of the homicide the process of law which authorized and com- manded him to arrest the deceased for a crime against the United States; that the deceased resisted the execution of such process with a deadly weapon in his hands, and had manifested a purpose to use such deadly weapon in resistance; and that the homicide was neces- sarily committed in the attempt to make an arrest. This defense necessarily leads us to inquire what protection the com- mon law affords to ministerial officers, and how far they are author- ized to go in the performance of their public duties. * =•'■ '■'■ Mr. Justice Foster says: "Ministers of justice while in the execu- tion of their offices are under the peculiar protection of the law." Fos- ter, 308. If an officer is killed while performing his duty, the law deems such kilHng murder of mahce prepense. This protection is not confined to the precise time when the officer is performing his official duty, but extends over him while going to, remaining at, and returning from the place of action. Any opposition, obstruction, or resistance intended to prevent an officer from doing his official duty is an indictable offense at common law, and the punish- ment is regulated by the nature of the offense. An officer is authorized to summons as many persons as may be necessary to assist him in the performance of his legal duties, and such persons are bound to obey such summons, and they are under the same protection aft'orded to officers, as they are for the time officers of the law. The law imposes upon private persons the duty of suppressing affrays, preventing felonies from being committed in their presence, and arresting such offenders and bringing them to justice; and such private persons, while performing their duties, are under the protec- tion of the law. We may confidently lay down the broad general prin- ciple that, when any person is performing a public duty required of him by law, he is under the protection of the law. An officer of the lav/ who has legal process in his hands is bound to execute it accord- ing to the mandate of the writ. If he is resisted in the performance of this duty, he must overcome such resistance by the use of such force as may be necessary for him to execute his duty. If necessary, the law authorizes him to resort to extreme measures, and if the resist- ing party is killed in the struggle the homicide is justifiable. Garrett's Case, 60 N. C. 144, 84 Am. Dec. 359.i* 14 \ccoi-fl- U. S. V. Jailer, 2 Abb. (U. S.) 265, 15 Fed. Cas. No. 15.4^3 (1867^) ; Smith v. State, 59 Ark. 132. 26 S. W. 712, 43 Am. St. Rep. 20 (1S94) ; State of North Carolina v. Gosnell (C. C.) 74 Fed. 734 (1S9G) ; Lynn v. People, 170 111. 527, 48 N. E. 964 (1897). Contra, where arrest is for a misdemeanor: Stephens v.' Commonwealth (Ky.) 47 S. \V. 229 (1S9S). Mik.Cr.Pe.(Abbidged Ed.) — 3 34 ARREST (Ch. 3 If unnecessary and excessive force is used, after resistance has en- tirely ceased and the defendant in the writ has manifested his willing- ness to submit to the mandates of the law and be arrested, then, if the said defendant is killed, the officer will be guilty of manslaughter; and if the blood had time to cool, the killing would be murder, 2 Whar- ton, Crim. Law, 1030, 1031, and authorities referred to in note.^* If, however, the defendant in the writ only ceases his resistance upon the officer desisting from his attempt to arrest, and still keeps himself in a condition to renew the resistance with a deadly weapon, if the of- ficer should renew the effort to arrest, and the officer cannot make the arrest without great personal danger, he would be justified in kill- ing the defendant. The submission of the defendant in such a case is not complete, and as long as he refuses to be arrested he is in a state of resistance ; and if he is armed with a deadly weapon, and has manifested an intent to use it, and still keeps the weapon in his possession convenient for an emergency, and the officer has reasonable grounds for believing that the weapon will be used if an arrest is attempted, the officer is not re- quired to risk his life in a rencounter, or desist from an effort to per- form his duty. When a person puts himself in an armed and deadly resistance to the process of the law, he becomes virtually an outlaw, and officers are not required to show him the courtesy of a chivalrous antagonist and give him an open field and fair fight. It is only when a criminal submits to the law that it throws round him the mantle of protection and administers justice with mercy. It is the duty of every offender charged with crime in due process of law to quietlv yield himself up to public justice. State v. Bryant, 65 N. C. 327; Slate v. Garrett, 60 N. C. 144, 84 Am. Dec. 359. A known officer, in attempting to make an arrest by virtue of a war- rant, is not bound to exhibit his warrant and read it to a defendant before he secures him. if he resists : if no resistance is offered, the of- ficer ought always, upon demand made, show his warrant to the party arrested or notify him of the substance of the warrant, so that he may have no excuse for placing himself in opposition to the process of the law. This is only a rule of precaution. A defendant is bound to sub- mit to a known officer ; to yield himself immediately and peaceably into the custody of the officer before the law gives him the right of having the warrant read and explained, when in resistance the law shows him no favor. A defendant, knowing the arresting, party to be an ofiicer, is bound to submit to the arrest, reserving the right of action against the officer in case the latter be in tlie wrong. When a person acts in a public capacity as an officer, it will be presumed that he was rightfully appointed. 1 Wharton Cr. Law, §§ 1289, 2925; Cooky's Case, 6 Gray (Mass.) 350. One who is not a known officer ought to show his warrant and read IS Arrnrd: Hnsse's Case, Veut 216 (1C73) ; State v. Kose, 142 Mo. 418, 44 S. \V. li-0 (ISJS). Ch. 3) ARREST 35 it, if required ; but it would seem that this duty is not so imperative as that a neglect of it would make him a trespasser ab initio, when there is proof that the party subject to be arrested had notice of the warrant, and was fully aware of its contents, and had made up his mind to resist its execution at all hazards. Garrett's Case, supra. The law, in its humanity an'd justice, will not allow unnecessary force to be used in the execution of its process. If a defendant, with- out any deadly weapon or manifestation of excessive violence, makes resistance, an officer is not justified in willfully shooting him down; but if a defendant has a deadly weapon, and has manifested a pur- pose to use it if an arrest is attempted, the officer is not bound to wait for him to have an opportunity of carrying his purpose into ef- fect. If the warrant is for a misdemeanor, and a defendant attempts to avoid an arrest by flight, the officer has no right to shoot him down to prevent escape, nor even after an arrest has been made and defend- ant escapes from custody. Foster's Case, 1 Lew. Cr. Cas. 187.^® The rule is different in cases of felony. Bryant's Case, supra. ^^ If an officer has process in his hands issuing from a court of com- petent jurisdiction over the subject-matter, authorizing and command- ing him to arrest a defendant, he is entitled to the protection which the laws afford officers acting under process, although the process in his hands is informal and irregular. If the process is illegal and void on its face, or is against the wrong person, or its execution is attempt- ed out of the district in which it can alone be executed, then the officer would not be under the protection of the law;^* but it would seem that, if he kills a resisting party under such circumstances, he would only be guilty of manslaughter, unless he had actual knowledge of his want of authority, or acted from express malice. * * * The jury, after a retirement of two hours, found a verdict of "not guilty." 1^ le Accord: Renean v. State. 2 Lea (Tenn.') 720, 31 Am. Rep. fi2G (1S70) ; Handley v. State, 96 Ala. 48. 11 South. .^22. 38 Am. St. Rep. 81 (1892); State V. Smith. 127 Iowa, .534, 103 N. W. 944, 70 L. R. A. 246, 109 Am. St. Rep. 402, 4 Ann. Cas. 758 (1905). 17 Accord: Carr v. State, 43 Ark. 99 (1SS4). 18 "A warrant issued before indictment must specify the offense charged, the authority under which it issues, the person who is to execute it. aud the person to be arrested." Nisbit, J., in Brady v. Davis, 9 Ga. 73 (1850). "By the common law, a warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him ; * * * and by the great weight of authority in this country a warrant that does not do so will not justify the officer making the arrest." Gray, J., in West V. Cabell, 153 U. S. 78, 14 Sup. Ct. 752. 38 L. Ed. 643 (1891). lUit see Bailey v. Wiggins, 5 Har. (Del.) 4G2, 60 Am. Dec. 650 (18.54) ; Allen v. Leon- ard, 28 Iowa, 529 (1870) ; Tidball v. Williams, 2 Ariz. 50, 8 Pac. 351 (1S85). 19 In effecting an arrest without a warrant, for a felony, the person ar- resting, whether he be an officer or a private person, may use sufficient force to effect the arrest of the felon, even to the extent of taking life if necessary. 1 Hale, P. C. 587, 588; Conraddy v. People, 5 Parker, Cr. R, 234 (18G2). Cf. Regina v. ?»Iurphy, 1 Cr. & Dix. 20 (1830). In arresting upon suspicion of a felony, an officer (and, a fortiori, a private person) can only justify killing the person he seeks to arrest by proof that 3G ARREST (Ch. 3 SEMAYNE'S CASE. (Court of King's Bench, IGOl. 5 Coke. 91 a.) In an action on the case by Peter Semayne, plaintiff, and Richard Gresham, defendant, * * * these points were resolved. * * * (3) In all cases when the king is party, the sheriff, if the doors be not open, may break the party's house, either to arrest him or to do other execution of the king's process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open the doors ; and that appears well by the Stat- ute of Westm. I, c. 17 (which is but an affirmance of the common law), as hereafter appears, for the law without a default in the owner ab- hors the destruction or breaking of any house (which is for the habi- tation and safety of man), by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be pre- sumed that he would obey it, and that appears by the book in 18 Edw. II, Execut. 252, where it is said that the king's officer who comes to do execution, etc., may open the doors which are shut, and break them if he cannot have the keys, which proves, that he ought first to demand them. * * *2o the felony was actually committed by some one. Conradcly v. Teople, 5 Par- ker. Cr. R. 234 (18(;2). Cf. Re-, v. Dadson, 3 Car. & K. 14S jlSoO). Since one arresting for a misdemeanor, with a warrant, cannot kill merely to effect the arrest, in arresting for such an offense without a warrant hia . rights are no greater. "It is common learning that an officer may, without a precept, arrest any person he finds committing an offense. It is also well known that he must within a reasonable time, bring his prisoner before the proper court, or obtain a legal precept for detaining him. A failure to do so may make the olHcer a trespasser. Rev. St. c. 133, § 4. An officer, making an arrest upon a criminal charge, may also take from his prisoner the instruments of the crime and such other articles as may be of use as evidence upon the trial. These may not be confiscated or destroyed by the officer, however, without some order or judgment of a court. We do not find any authority or reason for the officer rendering any judgment in the matter. He holds the property, as he does the i)risoner, to await and subject to the order of the court." Emery, J., in Thatcher v. Weeks, 79 Me. 54S. 11 Atl. 599 (ISST). 20 Part of this case is omitted. Accord: State v. Oliver, 2 Iloust. (Del.) 585 (1855); State v. Mooring. 11, l N. C. 709, 20 S. E. 182 (1894). Even though the oecupnnt know the i)urpose for which the officer comes. Hall v. Hall, 6 Gill & .7. (Md.) 3SG (1S34). Rut see Commonwealth v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510 (187G). The officer does not become a trespasser ab inilio if the accused is in fact not in the house, even though he is notified of this fact by persons iu the house. State v. Mooring, supra. The officer need not inform the occupant ■^•ho the person sought Is, unless such information is demanded. Commonwealth v. Reynolds, 120 Mass. 190. 21 Am. Rep. 510 (1S7G). It seems that the right to break doors when the arrest is on a warrant extends to arrests for misdemeanors as well as felonie-s. State v. Shaw, 1 Root (Conn.) 134 (1789); State v. Mooring, supra. Contra: Commonwealth T. Supt. Co. Prison, 5 Pa. Dist. R. 635 (189G). Arrest Without Warrant.— Whether doors may be broken in the arrest Ch. 4) EXTKADITION CHAPTER IV EXTRADITION S7 STATE OF KENTUCKY v. DENNISON. (Supreme Court of the United States, ISCO. 24 How. G6, IG L. Ed. 717.) A motion was made in behalf of the state of Kentucky, by the direc- tion and in the name of the Governor of the state, for a rule on the Governor of Ohio to show cause why a mandamus should not be is- sued by this court, commanding him to cause Willis Lago, a fugitive from justice, to be delivered up, to be removed to the stat^ of Ken- tucky, having jurisdiction of the crime with which he is char- ged.^ * * * Mr. Chief Justice Taney delivered the opinion of the court. * * * This brings us to the examination of the clause of the Constitution which has given rise to this controversy. It is in the following words : "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on de- mand of the executive authority of the state from which he fled, b^^ delivered up, to be removed to the state having jurisdiction of th'. crime." Looking to the language of the clause, it is difficult to comprehen/ how any doubt could have arisen as to its meaning and construction The words, "treason, felony, or other crime," in their plain and obvi- ous import, as well as in their legal and technical sense, embrace every act forbidden and made punishable by a law of the state. The word "crime" of itself includes every offense, from the highest to the lowest in the grade of offenses, and includes what are called "misdemeanors." as well as treason and felony. 4 Bl. Com. 5, 6, and note 3, Wendall's edition. But as the word "crime" would have included treason and felony, without specially mentioning those offenses, it seems to^ be supposed that the natural and legal import of the word, by associating it with those offenses, must be restricted and confined to offenses already known to the common law and to the usage of nations, and regarded as off'enses in every civilized community, and that they do not extend of a felon, -without a warrant, see 2 Hawk. P. C. c. 14 ; 1 Hale, P. C. 5S3 ; 4 Black. Comm. 292. Since a court has no jurisdiction over foreign sovereigns, their ambassa- dors, diplomatic agents, and persons belonging to their suites, such persons are exempt from arrest. See Dupont v. Piehon, 4 Dall. 321. 1 L. Ed. 851 (1805); Musurus Bey v. Gadban. [1894] 1 Q. B. 533; Rev. St. §§ 40G2-10G5 lU. S. Comp. St. 1901, pp. 27G0 27G1). 1 Part of this case Is omitted. 38 EXTRADITION (Ch. 4 to acts made offenses by local statutes growing- out of local circum- stances, nor to offenses against ordinary police regulations. This is one of the grounds upon which the Governor of Ohio refused to de- liver Lago, under the advice of the Attorney General of that state. But this inference is founded upon an obvious mistake as to the purpose for which the words "treason and felony" were introduced. They were introduced for the purpose of guarding against any restric- tion of the word "crime," and to prevent this provision from being construed by the rules and usages of independent nations in compacts for delivering up fugitives from justice. According to these usages, even where they admitted the obligation to deliver the fugitive, per- sons who fled on account of political offenses were almost always ex- cepted, and the nation upon which the demand is made also uniformly claims and exercises a discretion in weighing the evidence of the crime, and the character of the oft'ense. The policy of dift'erent na- tions, in this respect, with the opinions of eminent writers upon public law, are collected in Wheaton on the Law of Nations, 171, Foelix, 312, and Martin (Verge's Ed.) 182. And the English government, from which we have borrowed our general system of law and jurisprudence, has always refused to deliver up political oft'enders who had sought an asylum within its dominions. And as the states of this Union, al- though united as one nation for certain specified purposes, are yet, so far as concerns their internal government, separate sovereignties, independent of each other, it was obviously deemed necessary to show, by the terms used, that this compact was not to be regarded or con- strued as an ordinary treaty for extradition between nations altogether independent of each other, but was intended to embrace political of- fenses against the sovereignty of the state, as well as all other crimes. And, as treason was also a "felony" (4 Bl. Com, 94), it was neces- sary to insert those words, to show in language that could not be mis- taken, that political oft'enders were included in it. ♦■ * * The argument on behalf of the Governor of Ohio, which insists up- on excluding from this clause new oft'enses created by a statute of the state, and growing out of its local institutions, and which are not ad- mitted to be offenses in the state where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with anything like certainty? Who is to mark it? The Governor of the demanding state would probably draw one line, and the Governor of the other state another. And, if they differed, who is to decide between them? Under such a vague and indefinite construction, the article would not be a bond of peace and union, but a constant source of controversy and irritating discussion. It would have been far better to omit it altogether, and to have left it to the comity of the states, and their own sense of their respective interests, than to have inserted it as conferring a right, and yet defining that right so loosely as to make it a never-failing subject of dispute and ill will. * * * Ch. 4) EXTHADITION 39 Looking, therefore, to the words of the Constitution— to the obvious policy and necessity of this provision to preserve harmony between states, and order and law within their respective borders, and to its early adoption by the colonies, and then by the confederated states, whose mutual interest it was to give each other aid and support when- ever it was needed — phe. conclusion is irresistible that this compact in- grafted in the Constitution included, and was intended to include, ev- ery offense made punishable by the law of the state in which it was committed, and that it gives the right to the executive authority of the state to demand the fugitive from the executive authority of the state in which he is found; that the right given to "demand" implies that it is an absolute right; and it follows that there must be a cor- relative obligation to deliver, without any reference to the character of the crime charged, or to the policy or laws of the state to which the fugitive has fled. * * * The question which remains to be examined is a grave and import- ant one. When the demand was made, the proofs required by the act of 1793 to support it were exhibited to the Governor of Ohio, duly certified and authenticated; and the objection made to the validity of the indictment is altogether untenable. Kentucky has an undoubted right to regulate the forms of pleading and process in her own courts, in criminal as well as civil cases, and is not bound to conform to those of any other state. And whether the charge against Lago is legally and sufficiently laid in this indictment according to the laws of Ken- tucky is a judicial question to be decided by the courts of the state, and not by the executive authority of the state of Ohio. The demand being thus made, the act of Congress declares that "it shall be the duty of the executive authority of the state" to cause the fugitive to be arrested and secured, and delivered to the agent of the demanding state. The words, "it shall be the duty," in ordinary legis- lation, imply the assertion of the power to command and to coerce obedience. But looking to the subject-matter of this law, and the re- lations which the United States and the several states bear to each other, the court is of opinion the words "it shall be the duty" were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact created, when Congress had provided the mode of carrying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punish- ment for neglect or refusal on the part of the executive of the state ; nor is there any clause or provision in the Constitution which arms the government of the United States with this power. Indeed, such a power would place every state under the control and dominion of the general government, even in the administration of its internal con- cerns and reserved rights. And we think it clear that the federal gov- ernment, under the Constitution, has no power to impose on a state officer, as such, any duty whatever, and compel him to perform it ; for, if it possessed this power, it might overload the oflicer with duties 40 EXTRADITION (Ch. 4 which would fill up all his time, and disable him from performing his obligations to the state, and might impose on him duties of a char- acter incompatible with the rank and dignity to which he was elevated by the state. * * * And it would seem that when the Constitution was framed, and when this law was passed, it was confidently believed that a sense of justice and of mutual interest would insure a faithful execution of this constitutional provision by the executive of every state, for every state had an equal interest in the execution of a compact absolutely essen- tial to their peace and well-being in their internal concerns, as well as members of the Union. Hence the use of the words ordinarily em- ployed when an undoubted obligation is required to be performed, "it shall be his duty." But if the Governor of Ohio refuses to discharge this duty, there is no power delegated to the general government, either through the ju- dicial department or any other department, to use any coercive means to compel him. And upon this ground the motion for the mandamus must be over- ruled.' In re INIOHR. (Supreme Court of Alabama,* 1SS3. 73 Ala. 503, 49 Am. Rep. 63.) Somervillh;, J.^ The purpose of the present application is to va- cate the action of the probate judge, discharging one Alexander Mohr from alleged illegal custody, on his petition for the writ of habeas corpus. The return to the writ showed that the petitioner was held in the custody of the relator, Frederick Centner, as agent of the state of Pennsylvania, under a warrant of arrest issued by authority of the Governor of Alabama, pursuant to a requisition from the Governor of the former state, demanding his extradition as a fugitive from jus- tice. The crime charged is that of obtaining goods by false pretenses. The probate judge permitted evidence to be introduced, showing that the prisoner was not in the state of Pennsylvania at the time of the commission of the alleged offense, and had never been there since ; that the goods v,^ere obtained by purchase from an agent of the prose- cutor in the state of New York, to whom the false representations, if any, were made ; and that the petitioner had never fled from the state of Pennsylvania, and was not a fugitive from justice. It is claimed that the state courts have no jurisdiction of the case, and, if so. that the probate judge had no jurisdiction to go behind the warrant of the executive, to investigate the question as to whether or not the prisoner * "The power to surrender fugitives, who, having committed ofTensop In a foreign country, have fled to this for shelter, belongs, under the Constitiition of the United States, exclusively to the federal governraeut," Taney, C. J., in Holmes v. Jennison, 39 U. S. 579, 10 L. EiL 579 (1S40;. » Part of this case is omitted. Ch. 4) EXTRADITION 41 was in fact a fugitive from justice, and that the proceedings before him were coram non judice and void. * * * Is it permissible to show that the case is not one coming within the provisions of the Constitution and act of Congress, because the party charged is not a fugitive from justice, having committed the alleged offense, if 2.t all, only constructively while outside of the territorial jurisdiction of the demanding state? Or are the papers in the case, in connection with the warrant of arrest issued by the Governor of this state, to be regarded as importing absolute verity in this particular, so as to be incapable of contradiction? The statute provides that, if the return to the writ of habeas corpus shows that the petitioner is "in custody for any public offense, com- mitted in any other state or territory, for which, by the Constitution and laws of the United States, he should be delivered up to the au- thority of such state or territory," he should be remanded. Code 1876, § 4957. This is, perhaps, merely declaratory of what the law would require in the absence of the statute. The power claimed by the pris- oner is the right to show that his case is one outside of the class in- tended to be covered by the Constitution and laws of the United States. The authorities are not in harmony as to what questions can be re- viewed by habeas corpus in cases of extradition. It seems very cer- tain that there is no power to go behind the indictment or affidavit, with the view of investigating the question of the prisoner's guilt or innocence. In re Clark, 9 Wend. (N. Y.) 212. He cannot be put upon trial for the crime with which he is charged, nor can any inquiry be made into either the merits of his defense, or mere formal defects in the charge. These inquiries are reserved for the courts of the demand- ing state, having jurisdiction of the offense. People v. Brady, 56 N. Y. 182 ; Robinson v. Flanders, 29 Ind. 10. Congress has seen fit to adopt special legislation regulating this phase of the evidence in the case. The act of 1793 makes conclusive the production of a copy of the indictment found, or an affidavit made before a magistrate of the demanding state, "charging the person demanded with having com- mitted treason, felony, or other crime," certified as authentic by the Governor of such state. Rev. St. U. S. § 5278 (U. S. Comp. St. 1901,. p. 3597). These papers, if in due form, are made conclusive evidence of the guilt of the accused, when assailed on habeas corpus. It may be considered, therefore, as the settled doctrine of the courts, that a prima facie case is made, when the return to the writ of habeas corpus shows: (1) A demand or requisition for the prisoner, made by the executive of another state, from which he is alleged to have fled; (2) a copy of the indictment found, or affidavit made before a magistrate, charging the alleged fugitive with the commission of the crime, cer- tified as authentic by the executive of the state making the demand; (3) the warrant of the Governor authorizing the arrest. Where these facts are made to appear by papers regular on their face, there is a weight of authority holding that the prisoner is prima facie under legal 42 EXTRADITION (Ch. 4 restraint. Spear's Law of Extrad. 208-303 ; IMatter of Clark, 9 Wend. (N. Y.) 212; State v. Schlenin, 4 Har. (Del.) 577; In re Hooper, 52 Wis. 699, 58 N. W. 741 ; People v. Brady, 56 N. Y. 182 ; Bump's Notes of Const. Dec. 295-297 ; Johnston v. Riley, 13 Ga. 97. ]\Iany of the cases hold that the warrant of the Governor, reciting these jurisdictional facts, is itself prima facie sufficient to show that all the necessary prerequisites have been complied with prior to its issue by him, although as to this proposition there is a conflict of opinion. Davis' Case, 122 Mass. 324; Kingsbury's Case, 106 Mass. 223; Rob- inson V. Flanders, 29 Ind. 10; Hartman v. Aveline, 63 Ind. 344, 30 Am. Rep. 217. Which of these is the correct view we need not de- cide, as all the proper papers in due form are set out in the return made to the writ by the respondent, Gentner, who is the relator in this proceeding. It is obvious that the extradition clause of the federal Constitution has reference only to a specified class, and not to all criminals. Its language is : A person charged with any crime "who shall flee from justice and be found in another state." Article 4, § 2. The act of Congress is more emphatic, if possible, in describing such person as an actual fugitive, characterizing him as one who "has fled," and the state in which he is found as the state to which he "has fled." Rev. St. U. S. § 5278 (U. S. Comp. St. 1901, p. 3597). It may be con- sidered clear, therefore, without any conflict of authority, that the Constitution and laws of Congress do not provide for the extradition of any persons except those who may have fled from or left the de- manding state as fugitives from the justice of that state. Whart. Cr. PI. & Pr. (8th Ed.) 31, and cases cited; Spear's Law of Extrad. 273, 310-316. "The offense," says Mr. Cooley, "must have been actually committed within the state making the demand, and the accused must have fled therefrom." Cooley's Const. Lim. (5th Ed.) 16, note 1. There is a difference of opinion as to what must be the exact nature of this flight on the part of the criminal, but the better view, perhaps, is that any person is a fugitive, within the purview of the Constitu- tion, "who goes into a state, commits a crime, and then returns home." Kingsbury's Case, 106 Mass. 223 ; Hurd on Hab. Corp. 606. In the Case of Voorhces, 32 N. J. Law, 141, he was characterized as one "who commits a crime in a state, and withdraws himself from such jurisdiction." This point, however, we need not decide, as it is shown that the prisoner, Mohr, has never been into the jurisdiction of the demanding state since the commission of the alleged crime. He can- not, therefore, be said to be a fugitive from the justice of that state. It is clear to our mind that crimes, which are not actually, but are only constructively, committed within the jurisdiction of the demand- ing state, do not fall within the class of cases intended to be embraced by the Constitution or act of Congress, Such at least is the rule, un- less the criminal afterwards goes into such state and departs from it, thus subjecting himself to the sovereignty of its jurisdiction. The rea- son is, not that the jurisdiction to try the crime is lacking, but that Ch. '!) EXTRADITION 43 no one can in any sense be alleged to have "fled" from a state, into the domain of whose territorial jurisdiction he has never been cor- porally present since the commission of the crime. And only this class of persons are embraced within either the letter or spirit of the Constitution, the purpose of which was to make the extradition of fugitive criminals a matter of duty, instead of mere comity between the states. The language of the Constitution and the law of Congress are entirely free from ambiguity on this point, being too obvious to admit of judicial construction ; and the authorities are uniform in adoption of this view as to its manifest meaning. Whart. Cr, PI. & Pr. (8th Ed.) § 31 ; Spear's Law of Extrad. 309-316 ; V«orhees' Case, 32 N. J. Eaw, 147; Kingsbury's Case, lOG Mass. 223; Ex parte Smith, 3 McLean, 121, Fed. Cas. No. 12,968; Wilcox v. Nolze, 3-4 Ohio St. 520. We are of opinion that it was never intended by Congress, in their enactment of the law of 1793, that the finding of the Governor of a state that one is a fugitive from justice should be conclusive evidence of that fact, incapable of contradiction by facts showing the contrary. It is an important feature of the law, throwing some light upon its proper construction, that while it expressly prescribes the mode by which evidence of the crime charged shall be authenticated, it nowhere prescribes how the fact that he is a fugitive from justice shall be es- tablished. There seems to us to have been a good and sufficient rea- son for this distinction. Nothing was more proper than the policy of precluding the fugitive from disputing the certified records from the courts of a sister state, in view of the constitutional requirement that "full faith and credit" shall be given in each state to "the records and judicial proceedings of every other state." Const. U. S. art. 4, § 1. But no such reason applies to the implication of the defendant's be- ing a fugitive, because he is found in another state than the one in whose courts the charge is pending. It may be asserted that it was within the power of the Governor to investigate this fact before he is- sued the warrant, so as to satisfy himself of its truth. Perhaps this is the correct view ; but this duty must, in its very nature, be discre- tionary. In practice, the fact of the criminal's flight is usually shown by affidavit; but this cannot be regarded as conclusive upon any prin- ciple known to us, in the absence of statutory regulation so declar- ing the law. The better view seems to us to be that one of the pur- poses of pretermitting express congressional legislation on this point was to refer the matter to executive determination, subject to review by habeas corpus in the courts in all proper cases. The papers being regular, the Governor has a right to suppose that a prima facie case exists for a warrant, and the safer practice would seem to be tliat the accused should be remitted to the courts to establish matters of defense aliunde the record. Especially is this true in doubtful cases. As we have said, the grounds of imprisonment in this class of cases are constantly reviewed by habeas corpus, in the state courts. Whart. Cr. PI. & Pr. § 35. It is just as material to show that the prisoner u EXTRADITION (Ch. 4 does not come within the law, on the ground that he has never fled from the demanding state, as on the ground that he is not the identical person intended to be indicted, or that there is no authenticated copy of the indictment, or other charge against him. All of these facts must concur, before the law authorizes the requisition to be made, or the warrant of arrest to issue. They are jurisdictional facts, in the absence of which the prisoner is excluded from the operation and in- fluence of the law, and no extradition can be constitutionally author- ized by congressional legislation. Whart. Cr. PL & Pr. (8th Ed.) §§ 31, 34, 35. This view is supported by the best-considered cases, and parol evi- dence has been often admitted by the courts, in proceedings by habeas corpus, for the purpose of showing that the warrant of the Governor was improvidently issued under the mistaken belief that the prisoner was a fugitive. * * * We are of opinion that the probate judge did not err in discharging the petitioner, and that it was competent for him to hear oral evi- dence, in order to establish the fact that the petitioner was not a fugi- tive from justice. Any other conclusion than this would establish a doctrine very dan- gerous to the liberty of the citizen. It would greatly impair the ef- ficacy of the proceeding of habeas corpus, which has often been char- acterized as the great writ of liberty, and may be regarded, not less than the right of trial by jury, as one of the chief corner stones in the structure of our judiciary system. It might justly be considered as alarming to announce that a writ, which has so frequently been used for centuries past to prevent the encroachment of kings upon popular liberty, is inadequate for the just purpose for which it has been in- voked in this case. The application made by the relator must be denied.* Brickell, C. J., dissents. * See, also, Illinois v. Pease, 207 U. S. 100, 28 Sup. Ct. 58, 52 L. Ed. 121 (IDOT). "Whether an extraditable crime has been committed is a question of mixed law and fact, but chiefly of fact, and the judgment of the magistrate ren- dered in good faith on le.^al evidence that the accused is guilty of the act charged, and that it constitutes an extraditable crime, cannot be reviewed on the weight of evidence, and is final for the purpose of the preliminary examination unless palpably erroneous In law." Fuller, C. J.^ in Ornelas v. Ruiz. IGl U. S. 509, IG Sup. Ct. 691, 40 L. Ed. 784 (189G). "It is not necessary that the party charged should have left the state in which the crime is alleged to have been couunitted, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a state committed that which by its laws constitutes a . crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction, and is found within the territory of another." Matthews, J., in Roberts v. Reilly, 116 U. S. 97, 6 Sup. Ct. 300, 29 L. Ed. 544 (1885). Before the fugitive can be lawfully delivered up. It mu.st appear in the proceedings for extradition that he has been charged with the commission of the crime either by indictment or allidavit. Rev. St. U. S. § 5278 (U. S. Comp. St. 1901, p. 3597). A charge by Information is not sufficient. Ex parte Hart. Ch. 5) PROCEEDINGS BEFORE MAGISTRATE 46 I CHAPTER V PROCEEDINGS BEFORE MAGISTRATE WINDHAM V. CLERK. (Court of Queen's Beuch, 15SS. Cro. Eliz. 130.) Action upon the case. And declares, that the defendant was a jus- tice of peace in the county of N. And whereas the plaintiff was a loyal subject, etc. the defendant maliciously intending to deprive him of his good name and fame, did direct his warrant, and shews it in certainty, etc. to divers constables to attach him; alleging he was ac- cused of the stealing of the horse of A. B. by reason whereof he was arrested, till he put in bond to appear, etc. ubi revera he was never accused, nor did steal the horse, and the defendant did know him to be guiltless; by reason whereof he was greatly discredited. Upon non culp' pleaded, it was found for the plaintiff. And it was held by Clench and Gawdy, the action was maintainable. If a man be ac- cused to a justice of peace for an oft'ense, for which he causes him to be arrested by his warrant, although the accusation be false, yet he is excusable; but if the party be never accused, but the justice of his malice and own head cause him to be arrested, it is otherwise. And they commanded judgment to be given for the plaintiff. 14 Hen. VIII. BLODGETT V. RACE. (Supreme Court of New York, 1ST9. 18 Hun, 132.) BoCKES, J.^ A complaint in writing, charging a criminal offense, although on information and belief only as to the person suspected of having committed it, is sufficient to authorize an investigation be- fore a magistrate by the examination of witnesses. The magistrate on such complaint may issue subpoenas for witnesses, and has jurisdic- tion of the subject-matter of the offence charged to have been com- mitted, and may compel the attendance of witnesses by attachment in case of disobedience of the subpoena. People v. Hicks, 15 Barb. 153. 63 Fed. 249, 11 C. O. A. 16.5, 28 L. R. A. 801 (1894). Contra : In re Hooper. 52 Wis. 699, 58 N. W. 741 (ISSl). One convicted of an offense against a state, who before the expiration of his sentence is delivered to the federal authorities to serve out a prior sen- tence, is, at the end of that sentence, a "fugitive from justice." and can he taktn by the state. People v. Benham, 71 Misc. Rep. 345, 128 N. Y. Supp. 010 (1911). 1 The statement of facts is omitted. 46 PROCEEDINGS BEFORE MAGISTRATE (Ch. 5 But before a warrant can lawfully issue for the arrest of the offender the magistrate must have some evidence of his guilt. Facts and cir- cumstances, stated on information and belief only, without giving any sufficient grounds on which to base the belief, are insufficient to con- fer jurisdiction as to the person. The magistrate must have evidence of probable cause, both as to the commission of the offense and the guilt of the offender, before he can have jurisdiction to cause the ar- rest. Comfort V. Fulton, 39 Barb. 56 ; Vredenburgh v. Hendricks, 17 Barb. 179 ; Wilson v. Robinson, 6 How. Prac. 110 ; Pratt v. Bogardus, 49 Barb. 89; People v. Hicks, 15 Barb. 153; Wells v. Sisson, U Hun, 267 ; Carl v. Ayers, 53 N. Y. 14. It is laid down in Waterman's Notes to Archbold's Criminal Practice and Pleadings (vol. 1, 20, marginal page 31) that a warrant cannot be issued against one, if his guilt ap- pears only from hearsay and mere rumor, but that a case of probable guilt, on the part of the accused, must be made out. If facts and cir- cumstances be stated, sufficient to call for judicial determination, the magistrate will be protected in his action, and this, although he might err in judgment. In such case he is to be fully protected and the er- ror can only be made available on writ of error or appeal in the ac- tion, or proceeding in which the error occurred. As to the case in hand, it seems that the warrant was issued on less proof even than information or belief as regards the plaintiff. It was issued on an allegation only of "suspicion and belief" as to the plain- tiff's guilt. No fact or circumstance whatever was stated to support the suspicion, even much less to support a conclusion of probable cause against him. The warrant was without jurisdiction, hence aff'orded the defendant no protection against the charge of an illegal arrest. It is not necessary here to hold that the defendant had no ground for committing the plaintiff after the open public examination was had. It is quite possible, and I think it must be assumed, that there was sufficient evidence given before him to uphold his conclusion to com- mit. But we do not pass upon that question here. The original ar- rest, directed by the defendant, was unauthorized, and the nonsuit herein was therefore improperly granted. This conclusion renders it unnecessary to examine other questions raised in the case. Perhaps it should be further remarked that the case, as presented on this ap- peal, does not appear to be one of serious enormity. The good faith of the defendant, in issuing the warrant, is not denied. The plaintiff was in no way seriously oppressed ; on the contrary, was allowed great liberty after his arrest, and during the examination, and finally submit- ted to be committed, rather than give bail, which it seems was easily to be obtained. Whether or not the plaintiff may recover more than nominal damages is for a jury to determine. The order appealed from denying a new trial must be reversed. Learned, P. J., and Board.man, J., concurred. Ch. 5) PROCEf^DINGS BEFORE MAGISTRATE 47 SCAVAGE V. TATEHA^r. (Court of Common Pleas, IGOl. Cro. Eliz. 829.) False imprisonment in London from the 10th September unto the 29th September. The defendant justifies, for that he was mayor and justice of peace in Pomfrait, and that robbery was done_there, and the plaintiff was thereof suspected, and brought before him; et quia vide- batur suspectuosus, he detained him in his house during that time in the declaration mentioned, to examine him and one Pole, who was not apprehended, concerning the said robbery ; and afterwards, upon the 29th September, delivered him over to the new mayor; and traverseth the imprisonment in London. And it was thereupon demurred; and adjudged, that the induce- ment to the traverse was not good ; for a justice of peace cannot de- tain a person suspected in prison but during a convenient time, only to examine him, which the law intends to be three days, and within that time to take his examination, and send him to prison ; for he ought not to detain him as long as he pleaseth, as he here did eighteen days ; neither ought he to detain him in prison in his own house, but he is to commit him to the common gaol of the county ; for otherwise, when the justices come to deliver the gaol, he is not in the gaol, and may not be delivered, and so should lie longer than is reasonable. Vide St. 5 Hen. IV, c. 10 ; 2 Edw. IV, c. 8. And here he took not any examination, but delivered him over to the new mayor without examination, which was not lawful. And therefore it was adjudged, for the plaintiff. CPIARGE TO THE GRAND JURY. (Somersetshire Assizes, 1S49. 2 Car. & K. S15.) At the Taunton assizes, April 2, 1849, Lord Den man, C. J., in his charge to the grand jury, said: In all cases in which prisoners charged with felony have witnesses, and those witnesses are in attendance at the time of the examination before the magistrate, I should recommend that the magistrate should hear'the evidence of such witnesses as the prisoner, on being asked,, wishes to be examined in his defense. If such witnesses merely ex- plain what has been proved in support of the charge, and are believed, they will actually have made out a defense on behalf of the accused, and there would of course be no necessity for any further proceed- ings; but if the witnesses so called contradict those for the prosecu- tion in material points, then the case would be properly sent to a jury to ascertain the truth of the statements of each party ; and the depo- sitions of the prisoner's witnesses being taken and signed by them, should be transmitted to the judge, together with the depositions in- support of the charge. 48 BAIL (Ch. 6 CHAPTER VI BAIL REX V. PEPPER. (Court of King's Bench, 1684. Comberbach. 208.) Cur. We are not bound to bail a man committed for suspicion of murder, where 'tis express'd that a man was killed (no, tho' coroner's inquest find it but manslaughter) but we ought to have the examina- tions before us, and if it appear to be a case of hardship we may bail. REX V. JUDD. (Court of King's Bench, 1788. 2 Term R. 255.) The defendant was brought up on this day by a writ of habeas corpus, from Hertford, in order to be bailed.^ * * * AsHHURST, J, However improper the defendant's conduct appears to have been upon the proceedings before the justices, yet unless it appears, upon the face of the commitment itself, that the defendant is charged with a felony, we are bound by the habeas corpus act to discharge him ; taking such bail for his appearance to take his trial as we in our discretion shall think fit, according to the circumstances of the case. And therefore the question is, whether there is specified in this commitment such an offense as amounts to felony ? It is admit- ted that neither of the two first charges in the commitment amounts to felony. With respect to the last charge, it is not that the defend- ant was an accessory with Rand in feloniously, but only with will- fully and maliciously, setting fire to a parcel of unthreshed wheat. And though it is not necessary that the word "feloniously" should be used in the commitment, yet it ought to appear on the facts stated to be in law a felony, and within the description of the act. Now the statute has only made it felony to set fire to a cock, mow, or stack, of corn; and the defendant is not charged with either of these. What- ever words the Legislature used, we must suppose that they knew the meaning of them; and if a justice uses the same words, we are bound to suppose that he intended them in the same sense; but if he makes use of other words, he must be more precise. Now here a parcel of corn is too indefinite a description. It does not come within the description of the act, and we cannot say how much it is. Twenty ears of wheat is a parcel. Therefore I am of opin- ion that, as the warrant of commitment does not charge the defend- ant with a felony, we are bound to bail him. With regard to the quan- 1 Part of the statement of facts and the opinion of Grose, J., are omitted. Ch. 6) BAIL 49 turn of the bail, although the nature of the defendant's crime is not very accurately stated, yet as sufficient appears on the depositions, re- turned with the commitment, to shew that he has at least been guilty of an enormous offense, I think we ought to take ample security for his appearance; and that he himself should be bound in £1,000. and four sureties in iSOO. each. REX V. KIMBERLEY. (Court of King's Bench, 1729. 2 Strange, 848.) The defendant was brought up by habeas corpus, being committed to Woodstreet-Counter, for feloniously marrying Bridget Reading, contrary to an Irish act of Parliament, 6 Anne, in order to be trans- mitted to Ireland to be tried, the offense being committed there. Strange moved that he might be discharged or bailed, insisting that justices of the peace in England are confined to act only as to such offenses as are against the laws of England, and committed in Eng- land; and the proviso in the habeas corpus act gives no power as to offenses in Ireland, but leaves it on the former practice. Sed Per Curiam. It has been done in Colonel Lundy's Case, 2 Ven. 314, and in 3 Keb. 785, the court refused to bail a man commit- ted for a murder in Portugal. If application is not made to have him sent over in a reasonable time, you may apply again. Thereupon the defendant was remanded, and upon application to the Secretary of State, it was referred to Mr. Attorney General, to consider of the manner of sending him over; and upon an attendance by counsel, Mr. Attorney reported, that he might be taken from the Counter by a messenger, who should have a warrant to carry him to Ireland, Vv'hither he was carried, tried, condemned, and executed. REX v. WYNDHAM. (Court of King's Bench, 1715. 1 Strange, 2.) The defendant Sir William Wyndham being brought up by the lieu- tenant of the Tower, Serjeant Pengelly, Mr. Jeffries, Mr. Reeve and Mr. Hungerford moved that he might be admitted to bail, and oft'ered several arguments to induce the court to bail him, which, with the an- swers given thereto by Sir Joseph Jekyll, Mr. Attorney and Solicitor, are comprised in the opinion of the court, which was delivered the last day of the term, ut sequitur: Parker, C. J.^ This is a commitment by the Secretary of State for high treason generally. ♦ * * 2 Part of this case is omitted. Mik.Cb.Pb. (Abridged Ed.) — 1 50 BAIL (Ch. 6 The next thing relied upon is the ilhiess of Sir William Wyndham, which appears to be a distemper incident to the family. We are of opinion, that this is not ground enough singly, to induce the court to admit Sir William to bail ; for it must be a present indisposition, aris- ing from the confinement; and so we held this term in the Case of Mr. Harvey of Combe, who stabbed himself after his examination; and was refused to be bailed, because his illness was from an act of his own. But I shall not enlarge upon this head, since we are all of opinion Sir William Wyndham ought to be bailed. There have been four terms passed since his commitment, and one assizes in Somer- setshire, out of which county it has been hinted the ground of the comxplaint against Sir William Wyndham arises ; and therefore, there being no prosecution against him, he must be admitted to bail, him- self in £10,000. and four sureties in £5,000. each. •REGINA V. RIDPATH. (Court of Queen's Bench, 1713. 10 Mod. 152.) A recognizance was entered into by Ridpath, with securities, where- by he was bound to appear the first day of the 'term ad respondendum, etc., in the meantime to his good behavior, and not to depart without the license of the court. An information was preferred against him by the Attorney General; to which information, by reason of some defect in the pleading, the Attorney General thought fit to enter a nolle prosequi, and then the Attorney General exhibited another. It was insisted in favor of Ridpath and his securities : First. That the words "ad respondendum" must be extended to those crimes only, the suspicion of which was the cause of his commit- ment and entering into the recognizance, and not to the crimes he should afterwards commit, or be charged with ; for then it would be utterly impossible for a man to get anybody to be bound in a recog- nizance with him ; an opinion of the innocence of the person, as to the crime charged, being probably the only motive that can be sufficient to induce men to become bound for others. Secondly. That "ad respondendum" refers to the first day of the term, when he was bound to appear. Thirdly. That the entering of a nolle prosequi was a bar to the offense contained in the information; at least that it was a discharge from any further prosecution for it ; and that it was all one, whether he was discharged from the recognizance by rule of court made for that purpose, or by a judgment, that by a necessary consequence amounted to a discharge. But The Court were of opinion, that the recognizance extended to all crimes whatever which he should be charged with ; and that if it had relation to any particular crime only, it must be mentioned in the Ch. 6) BAIL 51 recognizance; but that is only "ad respondendum" generally. That there was no such inconvenience as was pretended ; the bail in this case being bound in a sum certain, and not to stand in the place of the principal, as in civil cases ; that the person's not appearing accord- ing to his recognizance, his absence (be the cause or reason of it what it will) was the cause of the forfeiture of the recognizance. That anciently in special bail in civil actions, where the bail is to stand in the place of the principal, bail to one action was to stand bail to all ac- tions that he should be charged with when in court. That this was hard in case of special bail, and is therefore now altered, though al- tered only by rule of court ; and that as to common bail the law is still the same. That the nolle prosequi was neither a bar nor discharge.^ 3 Accord: State v. Randolph, 22 Mo. 474 (1856); People v. Gillman, 12;" N. Y. 372, 26 N. E. 469 (1S91). Cf. State v. Bryant, 55 Iowa, 451, 8 N. W. 303 (18S1). So, where the recognizance specifies the offense for which the accnsed is to appear and answer, if it also provides that the defendant shall not depart without leave, it is not an answer to say that the defendant might have ob- tained his discharge from the court, either because nothing was alleged against him by indictment, or because he was not indicted for the same of- fense as that upon which he had been bound over. Commonwealth v. Teevens, 143 Mass. 210, 9 N. E. 524. 58 Am. Rep. 131 (1887). Or that the grand jurv had returned "no bill." State v. Fitch, 2 Nott & McC. (S. C.) 558 (1820). Or that the accused had previously been acquitted on an Indictment for the same offense. Archer v. Commonwealth, 10 Grat. (Va.) 627 (1854). Or even that he had been tried and found not guilty. An order of the court discharg- ing him is requisite. State v. Stout, 11 N. J. Law, 124 (1829). If the recognizance is only for an appearance at the next term of the court, tail are discharged when they produce the defendant at that term, and the court cannot, against the express dissent of the bail, respite the recognizance to a subsequent term. People v. Clary & Fleming, 17 Wend. (N. Y.) 374 (1837) ; Keefhaver v. Commonwealth, 2 Pen. & W. (Pa.) 240 (1830). If, after a recog- nizance is entered into, the accused is arrested on a bench warrant issued upon an indictment for the same offense and he subsequentlv escapes, his bail are discharged. People v. Stager, 10 Wend. (N. Y.) 431 (1833). If the recognizors undertake to produce the accused to answer a specific charge, his failure to appear and answer a different charge is not a breach of the undertaking. Gresham v. State, 48 Ala. 625 (1872). Statutes now provide that the undertaking is forfeited by failure of the defendant to appear, although the offense is incorrectly described in tlie undertaking. In Gresham v. State, supra, it was held that such a statute applied only to such misdescriptions as nevertheless apprise the parties of the nature of the offense for which the indictment is to be preferred, and to cases in which the indictment embraces the particular offense mentioned in the undertaking. It is no defense to an action on the recognizance that the defendant could not be produced because of the fact that he was at the time imprisoned in another state for an offense committed there. De- vine V. State, 5 Sneed (Tenn.) 623 (1858). See, also, Cain v. State, 55 Ala. 170 (1876); State v. Horn, 70 Mo. 466, 35 Am. Rep. 437 (1879); Yarbroush V. Commonwealth. 89 Ky. 151, 12 S. W. 143, 25 Am. St. Rep. 524 (1889); King V. State, 18 Neb. 375, 25 N. W. 519 (1885). But where the bail allow the accused to go into another state and while there he is, after the for- feiture of the recognizance, delivered on the requisition of the Governor of a third state for a crime committed (without the knowledge of the bail) in said state, and is imprisoned in such state on conviction, the bail are not discharged from liability on their recognizance in a suit by the state where the accused was first arrested. Taylor v. Taintor, 16 Wall. 346, 21 L. Ed. 287 (1872). Where the condition of the recognizance becomes impossible by the act of God or of the law, or of the obligee, the default is excused ; hence 52 THE GRAND JURY (Ch. 7 CHAPTER VII THE GRAND JURY The sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which on the part of our lord the king shall then and there be commanded them. They ought to be freeholders, but to what amount is uncertain ; which seems to be casus omissus, and as proper to be supplied by the Legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are now set- tled by several acts of Parliament. However, they are usually gentle- men of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury to the amount of twelve at the least, and not more than twenty-three; that twelve may be a major- ity, which number, as well as the constitution itself, we find exactly described so early as the laws of King Ethelred: "Exeant seniores duodecim thani, et praefectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nee aliquem noxium celare." * * * The grand jury are sworn to inquire only for the body of the coun- ty, pro corpore comitatus ; and therefore they cannot regularly in- quire of a fact done out of that county for which they are sworn, un- less particularly enabled by an act of Parliament. When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse on the back of the bill "Ignoramus," or, "We know nothing of it," intimating that, though the facts might possibly be true, that truth did not appear to them; but now they assert in English more absolutely "Not a true bill," or (which is the better way) "Not found," and then the party is discharged without further answer. But a fresh bill may after- wards be preferred to a subsequent grand jury. H they are satisfied of the truth of the accusation, they then indorse upon it "A true bill," anciently "Billa vera." The indictment is then said to be found, and the party stands indicted. But to find a bill there must be at least twelve of the jury agree, for so tender is the law of England of the the death of the accused (Merritt v. Thompson, 1 Hilt. [N. Y.] 550 [185S]), or his iiuprisomueut at the date of appearance by authority of the state (People V. r.artlett, 3 Hill [X. Y.] 570 |1S42|). excuses the bail; but sickness of the accused (State v. Edwards, 4 Humph. [Tenu.J 220 [1S131 ; Piercy v. People, 10 111. App. 219 lissij. [Contra: People v. Tubbs, 37 N. Y. 586 (1808)1). or his insanity (.\(ller v. State, 35 Ark. 517, 37 Am. Kep. 48 [1880J) has been held not to be such an act of God as will excuse the baiL Ch. 7) THE GRAND JURY 53 lives of the subjects, that no man can be convicted at the suit of the king of any capital offense, unless by the unanimous voice of twenty- four of his equals and neighbors; that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and after- wards by the whole petit jury of twelve more finding him guilty upon his trial But if twelve of the grand jury assent, it is a good present- ment, though some of the rest disagree; and the indictment, when so found, is publicly delivered into court. 4 Black. Comm. 302 et seq. ANONYMOUS. (Court of King's Bench, 1352. 27 Liber Assisarum, pi. 63.) One G. was indicted in the King's Bench for that being one of the enditors that indicted certain persons of divers felonies, they sued him for betraying the counsel of the King, for that he had openly shown to others what things the said persons were indicted for, and thus be- trayed the counsel of the King. For this he was arraigned as of fel- ony. And Shardelow — some judges would hold it treason, but he was arraigned only of felony, and was acquitted. Quaere, what would have been the judgment if he had been convicted? ' REGINA V. RUSSELIy. (Central Criminal Court, 1842. Car. & M. 247.) The prisoner was indicted for feloniously assaulting Abra- ham on the 21st of December, and cutting and wounding him on his head, left eyebrow, and nose, with intent to do him some grievous bodily harm. The prosecutor and several of the witnesses for the prosecution were Lascars, and C. Phillips, before the jury were charged, intimated to the judges that there was some doubt as to whether those witnesses had been properly sworn to give evidence before the grand jury. GuRNEY, B., and Wightman, J., were both of opinion that that was a matter which they ought not to inquire into, and also that the mode of swearing the witnesses to go before the grand jury would not, if incorrect, vitiate the indictment, as the grand jury were at 1 A grand juror may be called upon to testify what the evidence was before the grand jury. Crocker v. State. Meigs (Tenn.) 127 (1S3S); Gordon v. Com- monwealth, 92 Pa. 216, 37 Am. Rep. 672 (1879). Also to prove that a certain witness did not testify before the grand jury. Commonwealth v. Hill, 11 Cush. (Mass.) 137 (1853). Or to prove what persons were examined before the grand jury. Ex parte Schmidt, 71 Cal. 212, 12 Pac. 302 (18SG). A forti- ori, a witness may testify as to what he stated before the grand jury. Reg. v. Gibson, Car. & M. 672 (1842). Or one Avitness may testify as to what another witness so stated. Reg. v. Hughes, 1 Car. & K. 520 (1844). 54 THE GRAND JURY (Cll. 7 liberty to find a bill upon their own knowledge merely, and were an- ciently in the habit of doing so. ' And Wightman, J., added that the 'same point had arisen lately on the Northern circuit, before Lord Denman and himself, and they, after considering the subject, were of the same opinion as had been expressed to-day. The trial proceeded, and the prosecutor and such witnesses as were Lascars having been sworn in the manner which they considered bind- ing — The prisoner was eventually convicted of an assault, and sentenced to be imprisoned for eight days.^ STATE V. SEABORN. (Supreme Court of North Carolina, 1833. 15 N, C. 305.) RuFFiN, C. J.3 * * * The second objection to the grand jury is that in the record one Joel Jones is named as one of the grand ju- rors sworn, while the list returned contained no such person, but one of the name of Joes Jones. This differs from the former objection in this: That here the facts which it is alleged constitute the error do appear in the record ; whereas the first error was supposed to consist in the silence of the record upon certain facts. It is insisted that the grand jury must be composed only of those summoned, and that if one be impaneled on it by a dift'erent name from all those summoned, 2 Accord: State v. Wilcox, 104 N. C. 847, 10 S. E. 4.53 (1889); State v. Lee, 87 Tenn. 114, 9 S. W. 425 (1888) ; State v. Terry, 30 Mo. 368 (1860) ; Com- moTiwealtli v. Woodward, 157 Mass. 516, 32 N. E. 939, 34 Am. St. Rep. 302 (1893). While there must be legal and competent evidence before the .crand jury to sustain an indictment (People v. Lauder, 82 Mich. 109, 46 N. W. 9-56 [18901), the authorities generally agree that an indictment is not vitiated merely because the grand jury examined incompetent witnesses (State v. Wolcott, 21 Conn. 272 [1851] ; State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270 [1850] ; Bloomer v. State, 3 Sneed [Tenn.] 66 [1855]), or considered improper evidence (Hope v. People, S3 N. Y. 418, 38 Am. Rep. 460 [ISSl] ; State v. Logan, 1 Nev. 509 [1805]), or required a witness to give improper evidence, e. g., to testify against himself (People v. Lauder, 82 Mich. 109, 46 N. W. 956 [1890]. [Contra: State v. Froiseth, 16 Minn. 296, Gil. 260 (1871).]) The sufli- ciency of the evidence before the grand Jury will not be inquired into (Stewart v. State, 24 Ind. 142 [1805] ; United States v. Reed, 2 Blatchf. 43.5, Fed. Cas. No. 16,134 [1852]), at least if it appear that there was any lesrally competent evidence before them (Washington v. State, 63 Ala. 189 [1879] ; State V. Logan, 1 Nev. 509 [1865]). In the absence of statutory pi-ovisions, it is no objection to the validity of an indictment that one or more of the grand jurors. Avho were otherwise qualified, had formed or expressed an opinion of the guilt of the accused be- fore the finding of the Indictment. Tucker's Case, 8 Mass. 286 (1811); State V. Chaii-s, 9 Baxt. (Tenn.) 190 (1877). Or that one or more of the jurors were biased or had an interest (not pecuniary) in the case. Commonwealth v. Brown, 147 Mass. 585, 18 N. E. 587, 1 L. R. A. 620, 9 Am. St. Rep. 736 (ISSS) ; State V. Rickey, 10 N. J. Law, 83 (1828) ; Commonwealth v. Strother, 1 Va. Cas. 180 (ISU). Or was of kin to the accused or to the prosecutor. State v. Brainerd, 56 Vt. 5.32, 48 Am. Rep. 818 (1884) ; State v. Russell. 90 Iowa. ..69, 58 N. W. 915, 28 L. R. A. 195 (1894>. The general qualifications for grand jurors are very generally provided for by statute. 8 Part of this case is omitted Ch. 7) THE GRAND JCRY 55 he must be taken to be a different person, and the bill is not well found. This objection, if founded in fact and taken in due season in the superior court, would, in my opinion, have been unanswerable; ^nd had it then been overruled, it would have been error. But this I am saying as a mere dictum ; for, admitting the exception to have been once sufficient, the question remains whether the case was open to it when it was actually taken, which is the point of the present decision. I do not find that it is yet settled in England whether an exception to a grand juror can be taken after verdict, or even after plea to the felony. Perhaps the unequivocal terms of St. 11 Hen. IV, 9, may make it imperative on the court to receive it at any time ; since, if well founded, it avoids the indictment ab initio "with all the depend- ence thereof," which includes, as some suppose, the prisoner's plea in chief and "the verdict." Yet others have held that, although the pro- ceedings be void under the statute, the matter of avoidance must be brought before the court at a proper and at an early stage, namely, before the bill found, by challenge, or by special plea upon arraign- ment, with a plea over to the felony either then or upon the overruling of the first plea. To that effect is the great authority of Lord Coke (3 Inst. 33, 3-1); and in Bacon's Abridgment, Juries, A, this is said to be the better opinion. But Serjeant Hawkins afterwards remarks (book 2, c. 25, §§ 23, 26, 27) that it seems yet doubtful how far ad- vantage can be taken of the disqualification of a grand juror after trial. Whatever may be the correctness of this doubt, it is manifest that it depends upon that statute and has no other foundation. There is nothing to ground it on in this state. The statute of Henry IV is not in force here, because we have legislated for ourselves upon this subject, and have established by many acts a complete system of our own, inconsistent in many respects with that of England. I do not think it necessary to recite our statutes, and content myself with a reference to them. They are the acts of 1779, c. 137, of 1806, c. 693, § 11, and c. 694, of 1807, c. 712, and of 1810, c. 801. A perusal of them must satisfy any mind that all these statutes are directory in their nature. There is not an annulling clause or word in any one of them ; and from many of the provisions it must be deduced that no such consequences of an irregularity were intended. If we advert, for instance, to the very particular directions of St. 1806, c. 694, relative to the forming of the jury lists from the tax list, to be furnished by the clerk of the county court; to the writing the names on scrolls of equal size ; to the putting them in a box having a certain number of divisions, marks, locks and keys; to the locking the box, the custody of the keys and of the box; and to the drawing of the names by a child under a certain age — when, I say, we advert to these provisions, and also recollect that many of the matters can by no method get into the record of the superior court, and that the statute contemplates that no part of them will get there, by communication from the county court, except the list of jurors to be summoned, that is, the result of 56 THE GRAND JURY (Ch. 7 all the previous ceremonies, the impression on the mind must amount to conviction that the enactments are merely directory, and, if so, that others upon the same subject in the same statute, or in another statute in pari materia, partal 59 S. W. 8S9 (1900). "Gol" for "gold." Grant v. State, 55 Ala. 201 (1876). 12 Part of this case is omitted. Ch. 8) ' THE INDICTMENT 65 Lord Ellenborough said : "If the sense be clear, nice exceptions ought not to be regarded." In respect of this, Lord Hale says (2 Hale, P. C. 193)/: "More ofifenders escape by the over-easy ear given to ex- ceptions in indictments than by their own innocence, and many heinous and crying offenses escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villainy, and the dishonor of God." Upon the whole, it is the opinion of this court that the judgment below be affirmed; and, the other judges concurring, it is affirmed ac- ii (,-> "^ STATE V. GILBERT. (Supreme Court of Vermont, l&ll. 13 Vt. 647.) RedFiELD, J,^* The objection to the use of the words Anno Domini, in the caption of the indictment, cannot prevail. The abbreviations A. D., standing for these same words, were considered sufficient in an indictment. State v. Hodgeden, 3 Vt. 481. A fortiori, the words themselves should be. These words have become literally English by adoption. The same is true of a very considerable number of terms in the language. Most of these adopted terms have changed their cos- tume, while others have not. "Phenomenon" and "memorandum" are as strictly English as any terms of the most purely Saxon derivation. Others are not the less so because they still retain their foreign dress ; e. g., pro tempore, sine die, nemine contradicente, bona fide, Anno Domini, as well as ennui, sang froid, beaux, cap-a-pie, tete-a-tete, and thousands of others, which are well understood by mere English read- ers. * * *16 REX V. WHITEHEAD. (Court of King's Bench, 1G93. 1 Salk. 371.) IMr. Northey moved to quash two indictments, which were quod cum an order was made that the parishioners should receive a bastard child ; they in contempt did refuse to receive it. And because it was not posi- tively said, that it was ordered that they should receive, it, but only by recital with a quod cum, they were quashed." 13 See, also, State v. Raymond, 20 Iowa, 5S2 (1866); State v. Whitney, 15 Vt. 298 (1843); Vfard v. State, 8 Blackf. (Ind.) 101 (1846). Compare McCearley V. State, 97 Miss. .556. 52 South. 796 (1910), and State v. Hawkins, 155 N. C. 466, 71 S. E. 326 (1911). 1* Part of this case is omitted. IB See, also. State v. Hornsby, 8 Rob. (T.a.) 554, 41 Am. Dec. 305 (1844). Cf. State V. Mitchell. 25 Mo. 420 (1&j7). 16 Cf. Rex V. Ryland, L. R. 1 C. C. 99 (1867); Res v. Lawley, 2 Str. 904 (1730). Mik.Cr.Pr.(Abrid&ed Ed.) — 5 QQ THE INDICTMENT (Ch. 8 BURROUGH'S CASE. (Court of King's Bench, 1G76. 1 Vent 305.) He and others were indicted, for that they being churchwardens, overseers of the poor, and he a constable, did contemptuously and voluntarily neglect to execute diversa prsecepta et warranta, directed to them by the bailiffs of Ipswich (being justices of the peace) "under their hands and seals, etc. It was moved to quash it, for that the na- ture and tenor of the warrants were not expressed in the indictment ; for unless the parties know particularly what they are charged with, they cannot tell how to make their defense. And for that reason it was quashed by the court. REX V. ROBE. (Court of King's Bench, 1735. 2 Strange, 900.) An information was filed against him for several illegal exactions in his office of clerk of the market, and there were several counts speci- fying sums taken of particular persons, upon all which distinct char- ges the defendant was acquitted; but at the close of the information there was a general charge, of which he was found guilty, viz., that under color of his said office he did illegally cause his agents to de- mand and receive of several other persons several other sums of mon- ey, on pretense of weighing and examining their several weights and measures. Exception was taken, that this is so general a charge, that it is impossible any man can prepare to defend himself on this prose- cution, or have the benefit of pleading it in bar to any other; and for this fault the judgment was arrested. III. Tiii<; Conclusion REX v. CLERK. (Court of King's Bench, 1G95. 1 Salk. 870.) Indictment that twenty per.=ons being assembled, the defendant, not being licensed, preached to them, not concluding contra formam stat- uti, was quashed, for they might be the defendant's own family, to which the statute does not extend, and it is not an offense at common law. But DoLBeN differed in this. Ch. 8) THE INDICTMENT 67 ANONYIMOUS. (Court of King's Bench, 1&19. Style, 18G.) The court was moved to quash an indictment against a baker for selHng of bread under the assize. The exceptions were: 1. That it doth not say what assize, whereas there be divers assizes of bread. :«( * Xc Roll, Chief Justice, said to the first exception, it is good enough to say he sold the bread contra assisam, although it say not what assize.^^ ANONYMOUS. (Upper Bench, 1655. Style, 449.) The court was moved to quash an indictment against one Peers, for speaking provoking language to one, contrary to the late ordinance of the Lord Protector and his council, upon these exceptions ; * * * 2dly. It is said by an ordinance of the Protector, made such a day, and doth not say in that case provided. And upon these exceptions it was quashed.^' ANONYMOUS. (Court of King's Bench, 1G62. 1 Vent lOS.) ' An indictment for not performing an order of the justices of the peace concerning a bastard child. It was moved to quash it because it did not conclude contra pacem. But it was held that ought not to be it being but for a non feasans.^* 17 Part of this case Is omitted. 18 In lieu of these technical words the following forms have been held sufficient: "Contrary to law." Hudson v. State, 1 Blackf. (Ind.) 317 a824). [But see Commonwealth v. Stockbridge, 11 Mass. 279 (1814).] "Contrary to the true intent and meaning of the act of Congress of the United States, In such 'case made and provided." U. S. v. Smith, 2 Mason, 143. Fed. Cas. No. 16,338 (1820). Contra: "In contempt of the laws of the United States ol America." U. S. v. Andrews, 2 Paine, 451, Fed, Cas. No. 14,455 (1832). V) 58 THE INDICTMENT (Ch. 8 IV. Duplicity, Repugnancy, and Surplusage SMITH et al. v. STATE. (Supreme Court of Nebraska, 1S91. 32 Neb. 103, 48 N. W. 823.) \ NORVAL, J.'" On the 6th day of May, 1889, the county attorney filed in the district court of Lancaster county an information charging "that Moses Smith and W. Kief, late of the county aforesaid, on the 1st day of February, A. D. 1889, in the county of Lancaster and state of Nebraska, aforesaid, did unlawfully sell, give away, and vend spir- ituous, vinous, and intoxicating liquors to Orin Snyder, Frank Mar- tin and P. H. Cooper, and to other persons to the county attorney un- known, without having first complied with the provisions of the Com- piled Statutes of the state of Nebraska, and without first having taken out a license to sell, give away, and vend spirituous, vinous, and intox- icating hquors ; the said above sales of spirituous, vinous, and intox- icating hquors by said Moses Smith and W. Kief, as aforesaid, be- ing without authoritv, and contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Nebraska." The defendants moved the court to quash the informa- tion. * * * The motion to quash the information should have been sustained. The information is too indefinite and uncertain. It contains but one count, and charges that the defendants sold and gave away spirituous, vinous, and intoxicating liquors. It was held in State v. Pischel, 16 Neb. 490, 20 N. W. 818, that the act of selling any of the liquors nam- ed in section 11 of chapter 50 of the Compiled Statutes, as well as the act of giving away any of them, without a license so to do, is a crime. ; We adhere to the rule therein announced. This case is not distin- L guishable from State v. Pischel. As the judgment must be reversed ^ for the error pointed out, it will not be necessary to notice the other L assignments of error. 3 The judgment is reversed, and the cause remanded for further pro- vi ceedings. The other judges concur.^" ,>) 19 Part of this case is omitted. \ 20 See for use of the disiunctive in the statement of an offense, Teople v. ^;> Hood, GCal. 236 (1856); Sims v. State, 135 Ala. 61. 33 South. 162 (1902). ^ If the disjunctive can be construed to mean "to -wit" (see State v. Gil- \ bert 13 Vt. CA7 [1841]), or if the disjunctive and what follows can be reject- ed as surijlusage (State v. Corrigan, 24 Conn. 286 [1855]), the disjunctive al- legation will not render the indictment bad. N \ \- V Ch.8) THE INDICTMENT 69 COMMONWEALTH v. TWITCHELU (Supreme Judicial Court of Massachusetts, Hampshire, Franklin and Hamp- den, 1849. 4 Cush. 74.) MetcalF, J." 1. It is unnecessary to inquire, in this case, whether duplicity in'an indictment is a cause for arresting judgment; because we are of opinion that the allegation, in this indictment, that the de- fendant "did set up and promote" an exhibition, does not make the indictment objectionable for duplicity, but charges only one offense. In Commonwealth v. Eaton, 15 Pick. 273, an indictment, which al- leged that the defendant "did unlawfully offer for sale, and did unlaw- fully sell," a lottery ticket, was held good, on demurrer ; and we can- not distinguish that case from this. So an indictment, which avers that the defendant "did write and publish, and cause to be written and published," a malicious hbel, is not bad for duplicity. 2 Gabbett, Crim. Law, 234 ; 3 Chit. Crim. Law (4th Am. Ed.) 8?7, et seq. * * « Exceptions overruled. ^^ SPROUSE V. COIMINIONWEALTH. (Supreme Court of Appeals of Virgiuia, 1SS6. 81 Va. 374.) Lacy, J., delivered the opinion of the court.-^ * * * The first assignment of error here is to the ruling of the county court in refusing to quash the indictment. That the said indictment is double and presents a case of duplicity in pleading ; that the forgery of the check was one offense, and the forgery of the indorsement was another ofi'ense, and that two distinct oft'enses were contained in the same count ; that the forgery of the check alone was an indictable of- fense—citing Perkins' Case, 7 Grat. 651, 56 Am. Dec. 123 ; that the forgery of the indorsement was an indictable offense — citing Powell's Case, 11 Grat. 822 ; and that the said second count is liable to the same objection, and is equally defective. Duplicity, or double pleading, consists in alleging, for one single 21 Part of this case is omitted. 2 2 See. also, Wein v. State, 14 Mo. 125 (1851); Wessels v. Kansas, McCahon (Kan.) 100 (1860) ; Cobb v. State, 45 Ga. 11 (1S72). "When one count in an indictment charges two offenses, distinct in kind and requiring distinct punishments, the objection of duplicity has been allow- ed in arrest of judgment Commonwealth v. Symonds, 2 Mass. 163 ; State v. Nelson. 8 N. H. 163 ; People v. Wright, 9 Wend. (N. Y.) 193. But when the two offenses are precisely alike, the only reason against joining them m one count is that it subjects the accused to confusion and embarrassment in his defense. The objection is not open after a verdict of guilty of one offense onlv, but must be taken by motion to quash, or to compel the prosecutor to confine himself to one of the charges." Gray, C. J., in Commonwealth v. Holmes. 119 ^faps. 195 flST.".). «« Part of this case is omitted u^^ 70 THE INDICTMENT (Ch. 8 purpose or object, two or more distinct grounds of complaint, when one of them would be as effectual in law as both, or all. This is a fault in all pleading, because it produces useless prolixity, and tends to confusion, and to the multiplication of issues. This, however, is only a fault in form. The criminal law does not permit the joinder of two or more offenses in one count. We must consider what are two or more distinct offenses within the rule just stated. It is not an objection to an indictment that a part of the allegations might be lopped off and the indictment remain suf- ficient ; and, although the charge might be branched out into two of- fenses, if the whole be but parts of one fact of endeavor, all the parts may be stated together. Of this there are familiar ilkistrations. An accused might be charged with selling the dift'erent kinds of liquor contrary to law. The sale of each kind would be an indictable of- fense, yet an indictment setting forth a violation of the law in selling all could not be said to charge several distinct offenses. A man may be indicted for the battery of two or more persons in the same count, yet the battery of each was an offense ; yet they may be charged together, because they are but parts of one endeavor — the offense against the commonwealth being the breach of the peace. Or a libel upon two or more persons, when the publication is one single act, may be charged in one count without rendering it bad for duplicity under the rule stat- ed above. Or in robbery, with having assaulted two persons, and stol- en from one one sum of money, and from the other a different sum, if it was all one transaction. Or where two make an assault, with an intent to kill, with different weapons, they may be charged jointly in one count. And if a man shoots at two persons to kill either, regard- less of which, he may be convicted on a charge of a joint assault, yet either assault was an offense. And, as was asked by an English judge: "Cannot the king call a man to account for a breach of the peace because he broke two heads instead of one? How many informations have been for libels upon the king and his ministers? " Rex v. Benfield, 2 Burrows, 980. In Barnes v. State, 20 Conn. 232, Waite, J., said upon this ques- tion: " ^cf matters, however multifarious, wil l np^r^ te to make a decla - r ation or i aiQrmaUoa ^double, provided that all taken together con-, stitule but one connected charge or one transaction." And 1^1 r. JjlsnOp says this observation may be accci)tcd as expressing the common doc- trine, when we add to it the words: "Provid.ed^_al£Q^ Jhat in ajiy view whiclLJlLe.J3]/^_could take of the one transaction, it may be regarded as rnn^t^'tnfing h iiri^^j^nfrpp:y"-^ ri>iTTg Ttil^rrryp'nf-^ v y^TrrNy 2-i N. J. Law, 30-32, where it was held that a conviction on an in- dictment charging assault, battery and false imprisonment was not bad for duplicity, because, as was said by Potts, Judge : "TJi^^aLiaauIi^ the battery, the false imprisonment, though in themselves, separ ately cony^le red/th e v -afe- distinct offenses, vet, c ollectively, tii ' ' but one ~ Ch. 8) THE INDICTMENT , 71 Multiplication of authority, or of argument, cannot be necessary on this point, and we will conclude this question with a remark of Baron Parke, who said to counsel: "Your objection would apply to every case of a burglary and a larceny. There would be, first, the burglary; secondly, the larceny; thirdly, the compound or simple larceny; fourth- ly, the stealing in a dwelling house." When Tindal, Chief Justice, add- ed : "This is one set of faults. It is all one transaction. The prisoner could not have been embarrassed." Rex v. Bowen, 1 Denison's Crown Cases, 22; Archbold Crim. PI. (13th London Ed.) p. 54. In this case the prisoner was charged with forging a check payable to Gibson, and then forging Gibson's name on the back. This appears to be one transaction, a forgery, looking to the prejudice of another's right, a single fact of one endeavor ; and, as was said by Tindal, C. J., supra: "This is one set of facts. It is all one transaction. The prisoner could not have been embarrassed." We think there was no defect in the indictment, and the motion to quash was properly over- ruled. * * * Judgment affirmed.^* \ HUME V. OGLE. (Court of Queen's Bench, 1590. Cro. Eliz. 19G.) Appeal of the death of her husband. And declares, that the defend- ant, such a day, at West Lilburne in the said county, gave him a mor- tal wound, of which, at Wetwood in tlie said county, he languished, and the same day there died ; and so the said defendant, the same day and year, at West Lilburne aforesaid, her said husband modo et forma prsedict' murdravit. And although not guilty pleaded, and issue joined upon it, yet he waived it, and demurred upon the declaration (as it was clearly held by The Court he might). For if the declaration be not good, it is in vain to proceed to a trial; yet it was clearly held, that it is not peremptory to the defendant; for if it be adjudged against him, it is but a respondeat ouster. And the cause of the demurrer was, that the death is supposed to be at Wetwood, and yet the murder is su pposed to be at West Lilbu mf^, yrhirh j'l ^""^'^^n^ ^nrl ^^nnot be: for al tliough the stroke is supposed to be at West Lilburne. vet it is n^ feWTtTu his death, w mchwasat^w^t^maa-.- and there the mur^ der is supposed to be done; and the Cbsq^oIBj^^ZL^SLMx^^. cTl c I. And as the indictment there was insufficient for the time, so here for the place, which is more material ; for from this the venire shall come; but if it had been, et sic murdravit modo et forma prae- dicta, it had been good. And ^[vejajd^vers^of^the an^^ precedents are, that the murder is supposed fo Eewhere the stroke was. — But The Justices held clearly, that the indictment was ill ; for of necessity it must be at the place of his dearth. And although the precedents are 24 Compare Reed v. State, SS Ala. 36, 6 South. 840 (1SS9). 2 THE INDICTMENT iCh. 8 SO, yet they did pass sub silentio, and were not well examined, and not to be regarded, as Heyden's Case ; and it was resolved, that there was no difference be tween the cases; and adjudged, that the appeal did abate. ' "■'"""«« STATE V. SALES. (Supreme Court of Louisiana, 1S78. 30 La. Ann. 016.) Egan, J.^'' George Sales was indicted for the murder of one Tay- lor. In the same indictment it was also charged "that one Dan Proffit, one WiUiam Sales, and one Edward Ryan, with force and arms, did feloniously, willfully, and of their malice aforethought [did] assist and abet the said George Sales in the killing and murdering the said William Taylor aforesaid," etc. "Therefore [the grand jury] do find and present the said Dan Proffitt, William Sales, and Edward Ryan, as aforesaid, being accessory before the fact of the killing and murder- ing the aforesaid William Taylor." * * * ^ As to the second ground of the motion in arrest, we think the ob- jection to the indictment fatal. The accused Proffitt wa^ evidently intended to be indicted as accessory before the fact, but the statement in the indictment that he did with force ancTarms willfully and feloni- ously and with^raalice aforethought "assist and abet" the IcilTm^^'aTtd - murdering is wholly inconsistent with the charge of being al!Ui;ssoi-y— either before or after the fact, and one so charged cannot be TiTdTcTed^ as accessory. State v. White, 7 La. Ann. 531; Chitty's Crim?"Law-, - ^"2TJ^', 2G1); State v. Maxent, 10 La. Ann. 743. An accessory before the fact is one who, being absent at the time of the commission of the crime (and of course being unable to "assist and abet" in its com- mission), doth yet procure, counsel, or command its commission. 1 Hale's Pleas of the Crown, p. 616. The indictment is therefore bad for this reason, and as it attempts to charge the accused as accessory before the fact in terms it is also bad as an indictment against Profifitt as a principal offender, as he could not be both absent and present at the same time, and without being present could not be a principal in the murder. Besides, the indictment contains but one count, and even if both crimes were con- sistent and otherwise properly charged, it would be bad for that rea- son also. The motion in arrest of judgment must prevail. * * * 20 2 5 Part of this case is omitted. 2« See, also, Jones v. State, 63 Ala. 27 (1879). i i Ch.8) THE INDICTMENT 7S STATE V. DANDY. (Constitntional Court of South Carolina, 1804. 1 Brev. 395.) This was an indictment for a misdemeanor, charged to have been committed by the defendant in compounding a felony, and was tried before Trezevant, J. The felony stated in the indictment was for pass- ing a^omil^lMLbank^bilJf which was charo-ed to have been commit-;- te^ the 5th day of November, lcU3. The jndictment then .„statgiL^ fluOaSSmis^iojvit, on the 1st day of Jiinc, ISOO," the said felon^^ was compounded^ The prisoner was found guihy ;^ and now a mo- tion was brought forward in this court in arrest of judginent. "-^ER Curiam. The indictment is absurd. It is impossible that the defendant could be guilty of the offense as charged. Judgment arrested. ^^ REX V. MORRIS. (Court of King's Bench, 1774. 1 Leach, 109.) Robert Edwards was tried before Mr. Justice Ashhurst, at the Old Bailey, in September session, 1774, for robbing Thomas Morgan on the highway of a gold watch, chain, and seals ; and the same indict- ment charged "t hat Francis Morris the goods an d c hattels above men- tioned,_so as^_aforesaid feloniously stolen, ' taken"''a'ncl carried' away^ te^"" lomously''dId receive and. have ; he the said Thomas Morris, then and there, welLknojAnn^Jb&^aid goods and dia ttels last mentioned to have-- been feloniau^y stolen, taken, and carried. away. "THeprisoners were found guihy; but it was moved in arrest of judgment that, the indictment having alleged that Francis Morris had received the property, and that Thomas Morris knew it to have been stolen, the conviction could not be supported as against the accessory, for that the fact of receiving and the knowledge of the previous fel- ony must reside in the same person ; whereas the indictment charged them in two different persons, one of the name of Francis, and the other of the name of Thomas. Tlifii^oint was reserved for the opinion of The Twelve Judges. upon the following question: Whether the words "the said Thomas Morris," could be rejected as surplusage? and they were unanimous that, as the indictment would be sensible and good without these words, tlicv iiiic^lit be struck out as superabundant and unnecessary. 27 Where th e repugn ant averments are not material, and t!u' indictiii'^iit is other'^^ise "good "without them, they may be rejected as surplusage. See 1 Chtt. Cr. Law,Tr3r' "No indictment • • • shall be deemed invalid • • • for any sur- plusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged. * * * " Rev. St Mo. { 1S21. See State T. Chamberlain, 89 Mo. 129, 1 S. W. 145 (1886). 74 THE INDICTMENT (Ch. 8 FULFORD V. STATE. (Supreme Court of Georgia, 1874. 50 Ga. 591.) Trippe, J.^* The indictment in this case not only charged the de- fendant, as" principal in the second degree, in being present, aiding and abetting the chief perpetrator of the alleged offense, but procecJed further and specified the acts whereby the aiding and abetting were done. The prosecuting counsel, on motion, struck these descriptive averments from the indictment, over the objection of defendant. We recognize the rule that it is not necessary to prove allegations in an indictment which are immaterial or purely surplusage7 Buftiie question is, what are immaterial averments? Or, rather,' wlieif do averments which might have been omitted become material — or, at least, so enter into the indictment as framed that they cannot be stricken or rejected as surplusage? Starkie on Evidence, vol. 3, p. 1539, says itlT^mdst general rule that no allegation, which is-descrip- tive of the identity of that which is legally essential to the claim or charge, can ever be rejected; and on page 1543, same volume, makes it more specific by restating the rule thus: "Thej)osition that descrip- tive averments cannot be rejected extends to all allegations which op-" erate by way of description or limitation of that which is material." Bishop says: "If the indictment sets out the offense as done in a par- ticular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which cannot be Tcj^fut^d, 28 The statement of facts is omitted. "The indictment is sufficient under the criminal procedure act, and the motion to quash was rightfully refused. It does not furnish sufficient in- formation to enable the defendant to prepare his defense, and this may often occur where the law declares an indictment good, 'which charges the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment, if any such there be, or, if at common law, so plainly that the nature of the offense may be easily understood by the jury.' Prior to 1860, when greater particularity was required in setting out the offense in the indictment, it sometimes failed to give tlie defendant such notice as he was entitled to, of the .specific matters which would be attempted to be proved against him on the trial. Whenever such is the case, the accused may apply to the court or judge for an order that a bill of particulars be filed, and on the trial the commonwealth will be restricted to the proof of the items contained therein. Rex v. Hodgson, 3 C & P. 422; Rex v. Bootyman, 5 C. & P. 300: Commonwealth v. Snelling, 15 Pick. (:Mass.) 321. Doubtless, had the defendnnt made application, a bill of particulars would have been ordered. In simplifying indictments, it was not the intendment to make their brief and comprehensive terms a cover for snares to be sprung on the accused. Whether a refusal to order the bill would be a subject of review is a ques- tion not now raised." Trunkey, J., in Williams v. Commonwealth, 91 Pa. 502 fl.STO). "The application [for a bill of particulars! is one addressed to the discretion of the court, and its action thereon is not subject to review." Brown, J., in Dunlop V. United States. 105 U. S. 401, 17 Sup. Ct. 376, 41 L. Ed. 799 (1S9G). " He who has furnished a bill of particulars * * « mus t he confined to the partTcuTars ne has speciTT5t!7"Trs-xln-"f'!y nnd eTfectually as if they con- strfuteaessehtifll^utlegations in a special il ■> laroliou/* Merrick, J., Ill Cum- mon^ealttf V.trneS, 1 Gray (Mass.) 4C9 (1S54). — Ch. 8) THE INDICTMENT 75 yet the pleader makes it unnecessarily minute in the way of descrip- tion, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other." 1 Bishop's C. P. §§ 234, 235. If the prosecutor state the offense with unnecessary particularity, he wiFTBe bound T5}rthat staTemeilt, and must prove it as laid. "Umted States v. Brown, 3 McLean, 233, Fed. Cas. No. 14,- C66 ; Rex v. DawHn, 5 T. R. 311. In the case in 3 McLean, the indictment charged the postmaster with stealing a letter containing certain bank notes. It was held that the averment as to the bank notes might have been omitted, attd an offerrer-rras charged without those words; but, being in, they must be proved. So in United States v. Porter, 3 Day, 283, Fed. Cas. No. 16,074, the chart^e-was stopping the mail, with an averment of a con- tract between the Postmaster General and the carrier. Thous-h this averrn'ent was jTOt_ necessa ry to the indictment^ it was adjudged that it must be proved. In State v. Copp, 15 N. H. 2i2, the defendant was indicted for resisting the sheriff legally appointed and duly qualified Although the appointment and qualification might have been omitted, it was held that it was necessary to establish them by testimony. Where the statute made it penal to sell spirituous "or" intoxicating liquors, and the charge was the selling of spirituous "and" intoxicat- ing liquors, the prosecutor was bound to show the liquor to be both spirituous and intoxicating. Commonwealth v. Eagan, 4 Gray (Mass.) 18. See Commonwealth v. Varny, 10 Cush. (Mass.) 402; Common- wealth V. Butcher, 4 Grat. (Va.) 544; United States v. Keen, 1 Mc- Lean, 429, Fed. Cas. No. 15,510. These decisions agree with the rule as quoted from Bishop and Starkie. The confusion that grows out of applying it may be avoided by observing the qualification of it, or rather the statement of another rule given by Bishop, Chitty, and Phillips. Chitty (1 Criminal Law, 294, 295), says: "If any unnecessary averments, disconnected with the circumstances which constitute the stated crime, be introduced, they need not be proved, but may be rejected as surplusage." See, also, 1 Chancery Pleadings, 263. Bishop and Phillips state this rule to be, if the entire averment may be omitted of which the descriptive matter is a part, or can be rejected as surplusage, then the descriptive mat- ter falls with it and need not be proved. Phillips' Evidence (8th Ed.) 854; 1 Bishop, Criminal Proceedings, § 235. Or, as it is put in 3 Mc- Lean, supra, if the averment be mere facts disconnected with the of- fense, they need not be proved. See, also, on th jg dijtinction in the rule, State v. Copp, 15 N. H. 212.' These authorities show the line between material and immaterial averments, and where those which might have been omitted, 'when once introduced, become an important part of the indictment, and can- not Tie' rejected as surplusage or stricken out, but must be proved. And there is reason and justice in the distinction. Take this case. It was not necessary that the pleader should have stated the acts of the 76 THE INDICTMENT (Ch. 8 defendant which constituted his "aiding- and abetting-," or to define how it was done. The "aiding and abetting" was an essentiaTTver- m'ent. The defendant was charged with so doing "by pushing, strik- ing, assaulting and threatening the said J, A. Conway." He was puf on notice that it would be proved on him that he did these things. He proposes to meet the charge, and to show that he did not push, strike, assault or threaten the said Conway. The ^aiding and abetting may be made out by proving many other ways in which it may be done, totally foreign to those set forth in the indictment. The prosecution, knowing this, proposes to strike out all these descriptive averments and leave an open field for any and all proof of any and all forms or ways in which the aiding and abetting may be shown. This would be permitting a defendant to be called upon to meet a charge specifically made in one form and then to allow him to be convicted by a change of the indictment on proof of acts totally distinct from those of which he was notified. It is hard enough that a defendant may be convicted on a general averment of "aiding and abetting," without subjecting him, after specific acts are charged, to theTiazard of having them stricken after he may have prepared to meet them as made, and to a conviction for acts of any kind that the prosecution may see fit to produce. We do not think it can be done on principle or authority. Judgment reversed. Ch. 9) THE INDICTMENT 77 CHAPTER IX THE INDICTMENT-CONTINUED SECTION I.-^PARTICULAR AVERMENTS 1. Averment of Facts and Circumstances Neccessary to Consti- tute THE Offense REX V. STRIDE. (High Court of Justice, King's Bencli Division [1908] 1 K. B. 617.) Lrord Alverstone, C. J.^ This case raises a question of very great interest and importance with respect to the averments which it is nec- essary that an indictment should contain. Two persons were indicted, one a keeper named Stride, for steaHng, and the other a man named Millard, for receiving a quantity of pheasants' eggs, and the main point which has to be decided is whether the indictment sufficiently avers that the eggs were the subject of larceny. * * * We now come to the main objection, which was taken to both counts of the indictment. It was contended that they are bad in that they do not allege that the pheasants' eggs in question had been reduced into the possession of Sir Walter Gilbey at the time of the stealing. It was not, indeed, disputed by counsel for the defendants that if a keeper is employed by his master to collect, either himself or by the underkeepers, the wild pheasants' eggs, and does collect them and have them in possession on behalf of his master, those eggs, if subsequently stolen, would be the subject of larceny; but it is said that the indict- ment ought to contain some expression to show that they had been collected from the wild pheasants' nests. The' question is whether the indictment as it stands is sufficient. The indictment charges that Stride "one thousand pheasants' eggs of the goods and chattels of and of and belonging to Sir Walter Gilbey feloniously did steal." Now I ask myself whether that averment does not, when read fairly, involve the necessity of those eggs having been already collected. In the first place, having regard to the large quan- tity of eggs alleged to have been stolen, no one reading the indictment could possibly think that the charge related to the taking of the eggs when in the nest ; and, in the second place, in addition to the ordinary formal words "of the goods and chattels of," we find the words "and 1 Part of this case is omitted 78 THE INDICTMENT (Ch. 9 of and belonging to." It was said that the latter words were sur- plusage, as being merely another way of saying the same thing over again. But I do not take that view. I think that the words "and of and belonging to" may fairly mean that the eggs "had been collected by or on behalf of." Looking at the indictment as a whole, I should, apart from authority, be prepared to hold that it sufficiently charges that the eggs had been reduced into possession to satisfy the strictest rule of criminal pleading. It has been argued that there are authorities to the contrary. The principal of these was Rough's Case, 2 East, P. C. 607, the correct- ness of the report of which I have been able to verify by reference to the original MS. of Buller, J., from which the report is taken. The prisoner there was convicted of stealing "a pheasant, value 40s., of the goods and chattels of H. S." There were no additional words in the indictment there. The judges were all agreed, "after much de- bate and difference of opinion," that the conviction was bad on the ground that "in cases of larceny of animals ferae naturae the indict- ment must show that they were either dead, tame, or confined ; other- wise they must be presumed to be in their original state ; and that it ' is not sufficient to add 'of the goods and chattels' of such an one." But that case does not appear to me to be an authority in favor of the present defendants. For there was no suggestion on the face of the indictment that the pheasant was other than a wild pheasant. It con- tained no statement that it was "of and belonging to H. S.," or any other words to suggest that it had in fact been reduced into possession. It seems to me that when you get a state of facts on the face of the indictment, as in the present case, which is only consistent with the articles, wdiich are alleged to have been stolen, having been reduced into possession, it would be extremely artificial to say that that natural inference must be rejected because the articles under certain other cir- cumstances might not be the subject of larceny. j_ihi nk that if we were to take anv other view of the present indictment tTmn thai which- we do our decision would more properly "belong to a time when," as Lord Russell of Killowen observed in Reg. v. Jameson, [1S0G]T~ O. B. 425, "the right and justice and substance of the thing were sacrificed to the science of artificial statement." * * * The objection to the indictment therefore fails, and the conviction must be affirmed. 1 desire to add that I dissent from the proposition contended for by Mr. Rawlinson that the taking of birds' eggs directly from the wild nests amounts to larceny. Whatever other ofifense such an act may involve, it cannot, in my opinion, support a charge of larceny.^ 2 Laurance, .7., concurred, and Ridley, Darling, and Cbannell, JJ., delivered concurring opinions which are omitted. In indictments for arson, larceny, burglary, and rape, the words "burned," "took," "burglariously," and "ravished" are necessary, in indictments at com- mon law. 1 Chitty, Cr. L. 241i et seq. In an indictment for a felony, the Ch. 9) THE INDICTMENT 79 STATE V. KEERi;. (Supreme Court of Montaua, 1904. 29 Mont. 508, 75 Pac. 362, 101 Am. St Rep. 579.) Callaway, C The defendant has appealed from a judgment find- ing him guilty of murder in the second degree, and from an order denying his motion for a new trial. A number of errors are assigned. * * * After alleging the infliction of certain mortal wounds, the informa- tion continues, "of which said mortal wounds the said Thomas Crystal did then and there languish and languishing did live, and thereafter, on the 21st day of April, A. D. 1902, at the county of Lewis and Clarke, in the state of Montana, the said Thomas Crystal died." An information must be direct and certain as regards the party charged, the offense charged, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. Pen. Code, § 1834. It is not permissible to convict the defendant upon mere inferences ; he must be directly, plainly, and specifically charged with the commission of a certain crime, and it must be proved sub- stantially as alleged in order to convict him. In order to convict an accused of murder, the fact of the killing by him as alleged must be proved beyond a reasonable doubt. Pen. Code, § 358. The fact that the defendant inflicted upon another human be- ing a mortal wound deliberately, premeditatedly, with malice afore- thought, and with the intent to kill the victim, is not sufficient to sub- stantiate a charge of murder. The victim must die of the mortal wound, and within a year and a day after the stroke is received or the cause of death administered. Pen. Code, § 357. If the victim die of the mortal wound, but after a year and a day have elapsed since its infliction, the defendant may not be convicted of either murder or manslaughter. NeitheiL_can he be so convicted if, while the victim is languisinn^becaiTSt^'tyf the mortal wcuuid, death ensue from some cause not connected with or a consequence of the wound. For these "reasons the information should directly allege that death resulted from the mortal wounds inflicted by the defendant. This view being so clearly correct in principle, it would seem that no citation of authorities is necessary, but see Clark on Criminal Pro- word "feloniously" Is necessary, as is the word "treasonably" in an indictment for treason. See 2 Hawk. P. C. c. 25, § 55. In some crimes the use of certain technical words sufficiently charges cer- tain elements of the crime. Thus, the word "ravish" sufficiently charges force and violence, and lack of consent. Harman v. Commonwealth, 12 Serg. & R. (Pa.) G9 (1S24). The word "adultery" expresses carnal knowledge. Helfrich v. Commonwealth, 33 Pa. 68, 75 Am. Dec. 579 (1859). And the use of the word "assault" makes it unnecessary to state the acts constituting the assault State v. Clayton, 100 Mo. 516, 13 S. W. 819, 18 Am. St Rep. 565 (1890). 3 Part of this case is omitted. 80 THE INDICTMENT (Ch. 9 cedure, 178 ; People v. Lloyd, 9 Cal. 55 ; Commonwealth v. Macloon, 101 Mass. 1, 100 Am. Dec. 89 ; State v. Sundheimer, 93 Mo. 311, 6 S. W. 52 ; Maxwell's Criminal Procedure, 180 ; Bishop's New Crim- inal Procedure, §§ 527, 531, 532; Wharton's Criminal Law (10th Ed.) § 536, In Lutz V. Commonwealth, 29 Pa. 441, while an indictment containing language similar to the one at bar was sustained, the court say: "This indictment is not artistically expressed. Its grammatical construction is open to criticism, and it trenches hard on those rules of certainty which obtain in criminal pleading." The Attorney General relies on the concluding clause of the infor- mation as supplying the defect, because it alleges, "and so the said James S. Keerl did in the manner and form aforesaid willfully, unlaw- fully, feloniously and of his deliberately premeditated maUce afore- thought kill and murder the said Thomas Crystal." These words "are the mere conclusions drawn from the preceding averments. If the averments are bad, the conclusion will not aid them; if they are good, and sufficiently describe the crime as the law requires, * * * the formal concluding words are immaterial." Territory v. Young, 5 Mont. 244, 5 Pac. 248; State v. Northrup, 13 Mont. 522, 35 Pac. 228. We cannot give our approval to this information. As this case must go back for a new trial, the information may be amended by leave of the court to conform to the views herein ex- pressed. ' - * * STATE V. CONLEY. (Supreme Judicial Court of Maine, 1S54. 39 Me. 78.) At the March term, 1854, the prisoners were tried before Shepley, C. J., on an indictment as follows; "State of Maine. "Cumberland, ss. — At the Supreme Judicial Court, begun and holden at Portland, within and for the county of Cumberland, on the first Tuesday of March, in the year of our Lord one thousand eight hun- dred and fifty-four, "The jurors for said state upon their oaths present that Martin Conley and John Conley, of Portland, in the county of Cumberland, laborers, on the twelfth day of February, in the year of our Lord one thousand eight hundred and fifty-four, at Portland in said county of Cumberland, with force and arms, in and upon one Thomas Guiner, feloniously, willfully and of their malice aforethought, did make an assault, and that they, the said Martin Conley and John, Conley, then and there with certain dangerous weapons, to wit, certain wooden clubs, of the length of four feet and of the thickness of two inches, ■• «ee, also, State v. Mcl'addou. 48 Wasli. :J.10, 9P. Pac. 41-1 (1908). Cf. Lutz V. Comuion wealth, 29 I'a. 441 (1S57); iShuy v. I'eoyle, 22 N. Y. 317 (ISUO). Ch. 9) THE INDICTMENT 81 which they, the said T^Iartin Conley and John Conley, then and there, in both of their hands had and held, the said Thomas Guiner, in and upon the front and upper part of the head of him, the said Thomas Guiner, then and there feloniously, willfully and of their malice afore- thought, did strike and beat, giving unto him, the said Thomas Guiner, then and there with the said dangerous weapons, to wit, with the said wooden clubs, of the length of four feet and of the thickness of two inches, two mortal wounds, of which said mortal wounds he, the said Thomas Guiner, on the twenty-first day of February now last past, at Portland aforesaid in the county aforesaid, did languish and die. And so the jurors aforesaid, upon their oath aforesaid do say, that the said IMartin Conley and John Conley, him, the said Thomas Guiner, in manner and form aforesaid, feloniously, willfully and of their malice aforethought, did kill and murder, against the peace of said state, and contrary to the form of the statute in such case made and pro- vided." * * * Tenney, J.5 * * * The fifth cause for the arrest of judgment is that the indictment contains no allegation of the length, breadth or depth of the wounds alleged to have been caused by the striking of the prisoners. When death is occasioned by a wound, it should be stated to have been mortal. It must appear from the indictment that the wound given was sufficient to cause the death ; and for this rea- son, unless it otherwise appear, that the length and depth must be shown ; but it is not necessary to state the length, depth or breadth of the wound, if it appear that it contributed to the party's death. Rex v. Mosley, 1 Ry. & Moody, C. C. 97. In the case referred to, there were several wounds, and it was held by Abbott, C. J., Best, C. J., Alex- ander, C. B., Graham, B., Bayley, J., Park, J., Burrow, J., Garrow, B., Hullock, B., and Gasalee, J., to be unnecessary to describe the length, breadth or depth of the wounds. Holroyd, J., and Littledale, J., were of a contrary opinion. * * * Another ground for the arrest of the judgment is that it is not al- leged in the indictment that the wounds described therein, or either of them, were given, caused or produced by the striking alleged, the necessary averment "by the stroke or strokes aforesaid" being omitted. It is averred in the indictment that the prisoners then and there with the dangerous weapons, etc., which they then and there in both their hands, had and held, the said Thomas Guiner, in and upon the front and upper part of the head, etc., did strike and beat, giving unto him, etc., then and there with said dangerous weapons, etc., two mortal wounds,^ of which said mortal wounds, the said Thomas Guiner, on the 21st day of February aforesaid, did languish and die. It is not easy to perceive in what respect the allegation fails to be sufficient. It is full, that the prisoners struck and beat the deceased, giving unto him two mortal w^ounds with the dangerous weapons, before described, which they in both their hands had and held, of which said mortal 6 Part of this case is omitted. Mik.Cr.Pr. (Abridged Ed.) — 6 ^2 THE INDICTMENT (Ch. 9 wounds the deceased died. It necessarily follows, from the facts al- leged in language sufficiently accurate and technical, that the strokes inflicted by the prisoners caused mortal wounds, which produced the death charged in the indictment. The eighth objection to the indictment is that it does not contain the allegation that the deceased, of the said mortal wounds, on and from the said twelfth day of February, etc., until the twenty-first of the same February, did suffer and languish, and languishing did live. The prisoner's counsel, in support of this objection, refer to certain precedents of forms of indictment, without any other authority that ihis allegation is essential. It is held, however, that the time both of the stroke and death should be stated on the record, the former be- cause the escheat and forfeiture of lands relate to it, the latter in or- der that it may appear that the death took place within a year and a ' day after the mortal injury was received. 1 Chitty's Cr. Law, 222; 3 ibid. 736. It being alleged in the indictment now under considera- tion that the deceased did languish and die on the twenty-first day of February, in the year of our Lord 1854, of the mortal wounds inflicted on the 12th day of the same month, in full, precise, and technical lan- guage, the reason of the principle is satisfied. And no rule of law which can be found being violated, the indictment is regarded sufficient in this respect. * * * Exceptions and motion overruled.® 6 "An indictment of murder or manslaughter hath these certainties and req- uisites to be added to it more than other indictments, for it must not be only felonice, and ascertain the time of the act done, but must also: "(1) Declare how, and with what it was done, namely, cum quodam gladio, ©tc. "Yet If the party were Idlled with another weapon, It maintains the in- dictment; but if it were with another kind of death, as poisoning, or strang- ling, it doth not maintain the indictment upon evidence. 2 Co. Inst. 319 ; Co. P- C. p. 48. ,,.... "So if A. be indicted for poisoning of B. it must allege the land of poison, but if he poisoned B. with another kind of poisoning, yet it maintains the in- dictment, for the kind of death is the same. "(2) He must shew in what hand he held his sword. "If an indictment runs thus, that cum quodam gladio, quern in dextra sua tenuit, percussit, without saying in dextra manu. for this cause an indict- ment was quashed. P. 44 Eliz. B. R., Cuppledike's Case, 3 Coke. 5b. » "(3) Regularly it ought to set down the price of the sword or other weapon, or else sav nullius valoris, for the weapoii is a deodand forloited to the king, and the township shall be charged for the value if delivered to them. "But this seems not to be essential to the indictment. "(4) It ought to show in what part of the body he was wounded, and there- fore if it lie super brachium. or manum. or latus. without saying whether right or left, it is not good. Long's Case, 5 Coke, 121b. "So if it be in sinistro bracio. where it should be brachio, it is not good, because insensible. T. 31 Eliz. B. R., Webster's Case. "So if the wound be laid circiter pectus, it is not good. T. 29 Eliz., Clenches Rep. 10. Super partes posteriores corporis not good. II. 23 Car. I, B. R., Savage's Case, Style, 7G. . ... "But super faciem, or caput, or super dextram partem corporis, or in insima parte ventris are certJiin enough. Tx»ng's Case, 5 Coke, 121b. "('A Regularly the leuL'th and depth of the wound is to be shewed, but this Is not necessary in all cases, as, namely, where a limb is cut off. llaydou's Ch. 9) THE INDICTMENT 83 PEARCE V. STATE. (Supreme Court of Tennessee, 1S53. 1 Sneed, 03, GO Am. Dec. 135.) ToTTEN. J., delivered the opinion of the court. ^ James Pearce was convicted in the circuit court of Rhea on a pre- sentment for illegal voting. He moved for a new trial, and in arrest, and, the motions being severally overruled, he appealed in error to this court. * * * The presentment avers, in substance, that in the election for Presi- dent and Vice President of the United States, in 1848, the defendant unlawfully and knowingly voted in the county of Rhea; he, the de- fendant, "not being a qualified voter in and for said county of Rhea." The act of 1844 (chapter 31, § 1) provides that if a person vote at any election held under the Constitution and laws of this state, "such person not bein^ at the time a qualified voter of the county in which he so votes, he shall be adjudged guilty of a misdemeanor." We think the presentment bad. The nature and cause of the accu- sation are not well stated. Const, art. 1, § 9. The presentment is in the words of the statute; and the words are, "a qualified voter."^ That is not a fact, but a legal result ; and for the facts which constitute a qualified voter we are to refer to the Constitution and laws, from which it will be seen that there are several grounds of disqualification : (1) If he be not a free white man, twenty-one years of age. (2) If he be not a citizen. (3) If he has not resided in the county six months as a citizen thereof. Now, for which of these causes was the defendant disqualified? The presentment does not inform him, and the cause can only appear in the proof, when he may be taken by surprise, and be wholly unpre- pared to make his defense, however just and vaHd it may be. The rule is that "the indictment must charge the crime with cer- Case, 4 Coke, 42a. So It may be also a dry blow, and plaga is applicable to a bruise or a wound. "But tbough tbe manner and place of tbe hurt and its nature be requisite, as to tbe formality of tbe indictment, and it is fit to be done, as near tbe truth as may be, yet if upon evidence it appear to be another kind of wound in another place,. if the party died of it, it is sufficient to maintain the indict- ment. "(6)- It Is usual to allege the party stricken to have been in pace Dei et domini resis, but not necessary to be inserted. Haydou's Case, 4 Coke, 41b." 2 Hale.1?. C. 185, 1S6. Statutes have been very generally adopted making it unnecessary to set forth tbe means employed in causing the death. See Catchcart v. Common- wealth, 37 Pa. 108 (18(10). "The fourth exception was because the depth and breadth of the wound was not shown, as is always usual in indictments, so that it may appear to the court that the wound was mortal. But it was answered and resolved by the court that it could not be in this case, because all the pan of the knee was entirely cut oft' ; as if an arm or leg is cut off. or if a man is beheaded, the depth or breadth of the wound shall not be shown." Haydon's Case, 4 Coke, 41 (1585). 7 Part of this case is omitted. 84 THE INDICTMENT (Ch. 9 tainty and precision, and must contain a complete description of such facts and circumstances as will constitute the crime. A statement of a legal result is bad." 1 Chit. Cr. L. 328. A conclusion of law need not be stated. It is the facts upon which it is founded that are neces- sary and material. 1 Chit. Cr. L- 331. We may further observe that where the act is not, in itself, neces- sarily unlawful, but becomes so by other facts connected with it, the facts in which the illegality consists must be set forth and averred. 1 Chit. Cr. L. 329. Now, the act of voting is not necessarily illegal, but may become so for some of the causes before stated; and, in order that the charge may be perfect, such cause must be set forth and averred in the indict- ment or presentment. The gnound.£)i-disqualification not being averred in the present case, the jiKi-iaciii .will be reversed, and the motion tlT arre?t sustained. ~ 'Judgment reversed. STATE V. HADDONFIELD & C. TURNPIKE CO. (Supreme Court of New Jersey, 1900. 65 N. J. Law, 97, 46 Atl. 700.) Case certified from court of oyer and terminer, Camden county. The Haddonfield & Camden Turnpike Company was indicted for neglecting to keep its road in repair, and demurred to the indictment. Case certified, and court advised that defendant was entitled to judg- ment on its demurrer. Gum MERE, J. The defendant is indicted for neglecting to keep its turnpike road in repair. The ground of demurrer is that the indict- ment fails to show how the defendant's obligation to keep its road in repair arises. The pleading demurred to, after alleging that the defendant is in possession of the turnpike, and that the same is out of repair, charges that the defendant is "by law holden and bound the said turnpike road to repair and amend," etc. The rule with relation to the necessity of setting forth in an indictment how the duty arose for the negiect to perform which the defendant is presented is thus stated in State v. Hageman, 13 N. J. Law, 314: "Where an offense consists in an omis- sion to do some act, the indictment must show how the defendant's obligation to perform that act arises, unless it is a duty connected by law to the office which the defendant sustains." To the same effect is State V. President, etc. of New Jersey Turnpike Co., IG N. J. Law, 232. It is contended on behalf of the state that the legal duty of the de- fendant to repair and amend its turnpike is created by its charter, and that, as the charter is a law of the state, the allegation of the indict- ment is sufficient, the case being within the exception mentioned in State V. Hageman. This contention would be sound if the charter of Ch. 9) THE INDICTMENT 85 the company was a public act, provided it casts upon the company the duty of repair. But the charter is a private act, and we cannot take judicial notice of its contents. 1 Chit. PI. 216. The indictment should have set out the charter provision, from which the duty of the defend- ant to repair and amend its road is claimed to arise, and is fatally de- fective in not doing so. The Camden oyer and terminer is advised that the defendant is en- titled to judgment on its demurrer. HARMAN V. JACOB. (Upper Bench, 1651. Style, 256.) In an arrest of judgment upon a verdict given against an alien in an indictment upon the statute of 22 H. VIII, c. 13, for using a trade, exception was first taken. * * * 2dly. The indictment doth not say that he is alienatus extra Angliam. And this was held a good ex- ception.^ , COMMONAVEALTH v. HERSEY. (Supreme Judicial Court of Massachusetts, 1S61. 2 Allen, 173.) Indictment for murder. BiGELOW, C. J.® The motion in arrest of judgment in the present case is fourided on the omission to aver that the defendant, in adminis- tering poison to the deceased, did it with an intent to kill and murder. ^ ^ H< There can be no doubt that, in every case, to render a party respon- sible for a felony, a vicious will or wicked intent must concur with a wrongful act. But it does not follow that, because a man cannot com- mit a felony unless he has an evil or malicious mind or will, it is neces- sary to aver the guilty intent as a substantive part of the crime in giv- ing a technical description of it in the indictment. On the contrary, as the law presumes that every man intends the natural and necessary consequences of his acts, it is sufficient to aver^in apt and technical worcis that a defendant committed a criminal act, without alleging the specific intent with which it was done. In such case, the act neces- sarily includes the intent. Thus, in charging the crime of burglary, it is not necessary to aver that the breaking and entering a house was done with an intent to steal. It is sufficient to charge the breaking and entering and an actual theft by the defendant. The reason is that the fact of stealing is the strongest possible evidence of the intent, and the allegation of the theft is equivalent to an averment of that intent. Commonwealth v. Hope, 22 Pick. 1, 5 ; 2 East, P. C. c. 15, § 24. 8 Part of this case is omitted. 8 Part of this case is omitted. 86 THE INDICTMENT (Ch. 9 So in an indictment for murder by blows or stabs with a deadly weapon, it is never necessary to allege that they were inflicted with an intent to kill or murder. The law infers the intent from proof that the acts were committed, and that death ensued. The averment, there- fore, of the criminal act comprehends the evil or wicked intention with which it was committed. The true distinction seems to be this : When by the common law or by the provision of a statute a particular inten- tion is essential to an offense, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is necessary to allege the intent with distinctness and precision, and to support the allegation by proof. On the other hand, if the offense does not rest merely in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful or criminal act, the evil in- tention will be presumed and need not be alleged, or, if alleged, it is a mere formal averment, which need not be proved. In such case, the intent is nothing more than the result which the law draws from the act, and requires no proof beyond that which the act itself sup- plies. 1 Stark. Crim. PI. 165; 1 Chit. Crim. Law, 233; King v. Philipps, 6 East, 474 ; 1 Hale, P. C 455 ; Commonwealth v. Merrill, 14 Gray, 415, 77 Am. Dec. 336. To illustrate the application of the rule, take the case of an indict- ment for an assault with an intent to commit a rape. The act not be- ing consummated, the gist of the oft'ense consists in the intent with which the assault was committed. It must therefore be distinctly al- leged and proved. But in an indictment for the crime of rape no such averment is necessary. It is sufficient to allege the assault, and that the defendant had carnal knowledge of a woman by force and against her will. The averment of the act includes the intent, and proof of the commission of the oft'ense draws with it the necessary inference of the criminal intent. The same is true of indictments for assault with intent to kill, and murder. In the former, the intent must be alleged and proved. In the latter, it is only necessary to allege and prove the act. The application of this principle to the case at bar is decisive of the question raised by the present motion. There is nothing in the nature of the crime of murder by poison to distinguish it from homicide by other unlawful means or instruments, so as to render it necessary that it should be set out with fuller averments concerning the intention with which the criminal act was committed. If a person administers to another that which he knows to be a deadly poison, and death en- sues therefrom, the averment of these facts in technical form neces- sarily involves and includes the intent to take life. It is the natural and necessary consequence of the act done, from which the law infers that the party knew and contemplated the result which followed, and that it was committed with the guilty intention to take life. It was urged by the counsel for the prisoner, as an argument in support of the insufficiency of the indictment, that every fact stated ii. the indictment might have been done by the defendant, and yet he Ch. 9) TnE INDICTMENT 87 might have committed no offense ; tliat is, that a person might admin- ister to another that which he knew to be a deadly poison, from which death ensued, innocently and without any intent to do bodily harm. In a certain sense this is true. A physician, for example, might in the exercise of due care and skill give to his patient a medicine of a poison- ous nature, in the honest belief that it would cure or mitigate disease, but which from unforeseen and unexpected causes actually causes death. And the same is true of many other cases of homicide produced by other means than poison. Take the case of a murder alleged to have been committed by stabs or cuts with a knife. Such wounds may be inflicted innocently and for a lawful purpose. A surgeon in perform- ing a delicate and difficult operation, by a slight deflection of the knife, which the most cautious skill could not prevent, might inflict a wound which destroys life. But it has never been deemed necessary, because certain acts which cause death may be done without any wicked or criminal intent, to aver in indictments for homicide that the person charged acted with an intent to take life. The corrupt and wicked pur- pose with which a homicidal act is done is sufficiently expressed by the averment that it was committed willfully and with malice afore- thought ; and this allegation may be always disproved by showing that the act happened per infortuniam, or was otherwise excusable or justi- fiable. Motion in arrest of judgment overruled. REX V. TRIGG. (Court of King's Bench. Style, 124.) The court was moved to quash a presentment against Trigg for not going before a justice of peace to take the oath of an headbrow to which office he was chosen at a leet. The exceptions taken against it were, 1. That it doth not appear that any notice was given to him to go before the justice. 2dly, it appears not that the justice had author- ity to administer the oath. For ,the first exception the presentment was quashed.^" STATE V. HODGES. (Court of Appeals of Maryland, ISSO. 55 Md. 127.) Robinson, J., delivered the opinion of the court.* ^ The defendant in error was indicted for receiving stolen goods, knowinij them to be stolen. A demurrer was filed to the indictment, and the court below sustained the demurrer and quashed the indict- ment. * * * 10 Accord: State v. Leinay, 13 Ark. 405 (1853); State v. Munch, 22 Minn. 67 (1875). 11 Part of this case Is omitted. 88 THE INDICTMENT (Ch. 9 The offense in this state has ahvays been considered as a misde- meanor. Kearney's Case, 46 Md. 422. It was not necessary therefore to allege in the indictment that the property in question was feloni- ously received by the defendant in error. * * * Where the offense charged is an offense at common law, and is it- self manifestly illegal, the averment that it was done unlawfully may not be necessary. 1 Chitty, Crim. Law, 160; 2 Hawk, book 2, § 25. But the mere receipt of stolen goods, knowing them to be stolen, was not per se an offense at common law, because the owner may law- fully receive back his own goods, knowing them to be stolen, provided there be no agreement to favor the thief; or one may lawfully receive stolen property for the purpose of keeping the goods for the owner. 2 East's Crown Law, ch. 25, § 141 ; 1 Hale, 650. And accordingly we find in Chitty, Archbold, and in fact in all the books of forms, the averment that the goods were unlawfully received. '-'^ * " If it be an oft'ense created by statute, it is only necessary to describe it in the language of the statute. In this state, the Code merely pre- scribes the punishment for receiving stolen goods, and does not in any manner change the nature or character of the offense itself. It is nec- essary, therefore, to set out in the indictment all the circumstances necessary to constitute the offense at common law, and inasmuch as it was necessary at common law, to constitute the offense, that the party charged should receive the property unlawfully, we are of opin- ion that it must be so averred in the indictment. The indictment in this case does not allege that the goods were unlawfully received by the traverser, and the judgment must therefore be affirmed.^^ 12 If malice be a necessary ingredient of tbe offense, malice must be alleged. Sarah v. State, 28 Miss. 267, 01 Am. Dec. 544 (1854). So, when knowledge of certain facts is essential to tlie offense, the indict- ment must aver such knowledge. People v. Behee, 90 Jlich. 35G, 51 N. W. 515 (1892). "In the case of Wong v. Astoria, 13 Or. 538, 11 Pac. 295, It was held that to allege that an act was done 'wiirfully and unlawfully' was equivalent to alleg- ing that it was done 'knowingly.' In the case of Weinzorpflin v. State, 7 Elackf. find.) ISO, 195, it is said among other things, as follows: ' "Feloniously" is substituted for it [the word "unlawfully"] in this indictment, and is not tantamount to it, hut is a word of far more extensive criminal meaning. The act complained of could not have been done feloniously, and not unlawfully done.' In the case of Carder v. State, -17 Ind. 307, it is said 'that the word "feloniously," in the connection in which it was used in the indictment, was Identical in its import with the word "purposely." ' In the case of Com- monwealth V. Adams, 127 Mass. 15, 17, it is said: 'But the allegation that the defendant maliciously and felonioiisly incited and procured principal to com- mit the felony ex vi termini imports that she acted with an unlawful intent.' In the case of Allen v. Inhabitants, 3 Wils. 318, it is said as follows: 'Here he (the prosecutor) has alleged in his declaration * * * that the same was committed and done feloniously ; and that act, which was committed feloniously, was certainly done willfully, unlawfully, and maliciously, for doing an act feloniously is doing it malo animo, viz., with malice.' " Valentine, J., in State v. Bush, 47 Kan. 201, 27 Pac. 834, 13 L. R. A. G07 (1891). In Kitchinman's Case, Style, 374 (1G53), Roll, C. J., said: "It is said to be preferred malitlose and it cannot be malitiose except it be also falsely." Ch. 9) THE INDICTMENT 89 STATE V. DORAN. (Supreme Judicial Court of Maine, 1904. 99 Me. 329, 59 Atl. 440, 105 Am. St. Rep. 278.) Whitehouse, J.^^ It is alleged in the indictment that the defend- ant, "with force and arms, the car numbered 18,656 of the Boston & Maine Railroad * * * feloniously, willfully, and maliciously did attempt to break and enter for the purpose of committing a felony." The jury returned a verdict of guilty, and the defendant moved in arrest of judgment; among other reasons, "because no specific offense against the laws of this state is alleged against the said Doran in said indictment, and that no judgment could be rendered upon the verdict in said court." The motion was overruled by the presiding judge, and the case comes to this court on exceptions to this ruling. * * * Where the offense is created by statute, and the facts constituting it are fully set out, it is undoubtedly sufficient to charge the offense in the language of the statute without further description. 1 Bish. Cr. Proc. § 611. But "in all criminal prosecutions the accused shall have a right * * * to demand the nature and cause of the accusation." Const. Me. art. 1, § 6. He has a right to insist that the facts alleged to constitute a crime shall be stated in the indictment against him with that reasonable degree of fullness, certainty, and precision requisite to enable him to meet the exact charge against him, and to plead any judgment which may be rendered upon it in bar of a subsequent prosecution for the same oft'ense. Hence, if a statute creating an offense fails to set out the facts con- stituting it sufficiently to apprise the accused of the precise nature of the charge against him, a more particular statement of the facts will be required in the indictment. "And where "a more generic term is used, or where the words of the statute by their generality may em- brace cases which fall within the terms but not within the spirit or meaning thereof, the specific facts must be alleged to bring the de- fendant precisely within the inhibition of the law." Enc. of PI. and Prac. vol. 10, p. 487; Wharton's Cr. PI. and Prac. § 220. Indeed, it is an elementary rule of criminal pleading that every fact or circum- stance which is a necessary ingredient in a prima facie case of guili must be set out in the indictment. With respect to indictments for attempts to commit offenses ^Ir Bishop says : "An attempt is an intent to do a particular criminal thinj, with an act towards it falling short of the thing intended [1 Bish. Cr, Law, § 728], and on principle we see that we must set out the act which was committed and the specific intent which accompanied it." Bish. on Stat. Cr. § 391; 2 Crim. Proc §§ 1, 93; Directions and Forms, § 100. * * * 13 Part of this case is omitted. 90 THE INDICTMENT (Ch. 9 Again, as already noted, the indictment fails to specify the particu- lar felony which it is alleged the defendant intended to commit. This is another fatal defect. The word "felony" is not the name of any distinctive offense. It is a generic term, employed to distinguish cer- tain high crimes, as murder, robbery, rape, arson, and larceny, from other minor ones, known as "misdemeanors." The averment that the defendant broke and entered the car for the purpose of committing a felony wholly failed to apprise him of the specific offense which it is claimed he intended to commit. Whether it would be contended by the state that he intended to commit murder, or robbery, or rape, or larceny, he is not informed. Upon the trial of such an indictment he was liable to be oppressed by the introduction of evidence which he could not anticipate or be prepared to meet. ♦ * *. Motion sustained. Judgment arrested.^* II. Averment of Time and Place oe the OefensE ANONYMOUS. (Court of King's Bench, 14S6. Year Book 2 Hen. VII, 10. pi. 6.) In the King's Bench upon an indictment taken in the sheriff's tourn it was found that one J. with force and arms on the first day of May tt H. and the fourth day of May at C. in D. made an assault, beat, and grievously maltreated, and one horse of the value of, etc. then and there being, feloniously stole, took and carried away, and because there were in the commencement two several days and places, and in the conclusion it was then and there one horse, etc. and there cannot be H felony laid in two places at two times, without special matter. ( For a felony cannot be done except at one time and in one place, and it is uncertain, in which of the said places, or on which of the said days it is intended, and so it is uncertain.) And because of this, as to the felony let him go quit. ANONYMOUS. (Upper Bench, 1G55. Style, 44S.) The court was moved to quash an indictment grounded upon the statute of 5 Eliz. preferred against one for using the trade of a draper, not having served as an apprentice in that trade, according to the stat- ute, upon these two excei)tions : 1. It is said he used the trade in the year 1653, and doth not say the year of our Lord. 2dly. It is not ',aid that the jury was returned, nor whence they were, and both ex- veptions were held good by Roll, Chief Justice, and the indictment was thereupon quashed. 14 Accord; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544 (1S54). Ch. 9) THE INDICTMENT 91 REX V. MASON. (Court of King's Bench, IGSO. 2 Sbow. 126.) Indictment against the defendant on the statute 33 Hen. VIII, c 9, for shooting in a gun, quod non habens terras aut tenementa ad valorem nono die Aprihs anno, &c. apud, (Sic. sagittavit. Exception was taken and allowed, for that "he not having" shall be intended to relate to the time of the indictment, and not to the time of the fact. And therefore quashed.^ ^ MOLETT V. STATE. (Supreme Court of Alabama, 1S59. 33 Ala. 408.) A. J. Walker, C. J.'" The indictment, found on the 17th Novem- ber, 1857, alleges the offense to have been committed before the find- ing of the indictment and after the 1st day of March, 1856. The of- fense may have been committed after the 1st day of March, 1856, and not within 12 months before the finding of the indictment. The in- dictment fails, therefore, to show the commission of the misdemeanor within the period prescribed by the statute of limitations. Before the Code, this would have been a fatal objection; but it is not now neces- sary to make any averment that the indictable act was done within the time mentioned in the statute of limitations. No specification of the time is necessary, unless time is a material ingredient of the offense. Code, § 3512; and form No. 1, page 698.^^ The forms prescribed by the Code make sufficient an allegation that the offense was committed before the finding of the indictment. It cannot vitiate that the indictment, instead of embracing within its allegation all past time, limits to a certain specified day in the past the period within which the offense was committed. * * * The judgment of the court below is reversed, and the cause re- manded. IB Accord: Sikes v. State, 67 Ala. 77 (ISSO). 16 Part of this case is omitted. 17 Manv states have similar statutes. See State v. Aclcerman, 51 La. Ann. 1213, 26 South. 80 (1899); State v. Peters, 107 N. C. 876, 12 S. E. 74 (1S90). See also, Fleming v. State, 136 Ind. 149, 36 N. E. 154 (1894). Compare Ruge v. State, 62 Ind. 388 (1878). 92 THE INDICTMENT (Ch. 9 STATE V. BEATON. (Supreme Judicial Court of Maine, 18S7. 79 Me. 314, 9 Atl. 728.) On exceptions by respondent from Supreme Judicial Court, Lincoln £Ounty. An appeal from the decision of a trial justice on a complaint and warrant for fishing for and catching lobsters in violation of law. Walton, J. Neither a complaint nor an indictment for a criminal offense is sufficient in law, unless it states the day, as well as the month and year, on which the supposed offense was committed. In this par- ticular, the complaint in this case is fatally defective. It avers that "on sundry and divers days and times between the twenty-third day of September, A, D. 1885, and the thirtieth day of September, A. D. 1885," the defendant did the acts complained of. But it does not state any particular day on which any one of the acts named was commit- ted. Such an averment of time is not sufficient. State v. Baker, ci4 Me. 52; State v. Hanson, 39 Me. 337, and authorities there cited. Exceptions sustained. Complaint quashed. Peters, C. J. and Virgin, Libbey, Emery, and Haskei.i., JJ., con- curred. STATE V. CITY OF AUBURN. (Supreme Judicial Court of Maine, 1S94. 86 Me. 276, 29 Atl. 1075.) Peters, C. J. The city of Auburn, having been indicted for its fail- ure to open a highway laid out within its limits by county commis- sioners, claims, upon demurrer thereto, that the indictment found against them is insufficient in some respects. It is contended that it is bad because the city of Auburn, so named in the indictment, is not described as a corporation of any kind, and more especially because there is no averment that the city of Auburn is situated within any county of this state. Such omissions are un- doubtedly formal defects, indicating a want of care in the work of the pleader that is not to be commended. The omissions are supplied, however, to some extent by certain indirect allegations contained in the indictment. The way is alleged to have been laid out by the com- missioners of Androscoggin county within the city of Auburn, and the indictment avers that it was found at a term of court begun and holden at Auburn within and for the county of Androscoggin. Aided by these implications, we deem it warrantable for us to determine as a matter of judicial knowledge that the city of Auburn described in the indict- ment is the municipal corporation of that name situated in our county of Androscoggin. The case of Com. v. Desmond, 103 Mass. 445, sup- ports this view. Ch. 9) THE INDICTMENT 93 The indictment further alleges that the mandate of the commission- ers required that the way should be opened and built by the city within three years from March 31, 1890, and that for the period of time be- tween March 31, 1890, and March 31, 1893, as well as ever since, the city had wholly neglected to open and build the same ; and it is con- tended by the defense that such an averment as to the time of the com- mission of the alleged offense is bad for its generality. In support of this objection the defense invokes the general principle of pleading, recognized in our own cases, that some particular day must be named in the indictment on which the alleged offense was committed, and that, too, even if the oft'ense be set out with a continuando. In our view, this criticism does not fairly apply to an indictment like the present. The principle referred to applies mostly to offenses of commission, and not to those of omission ; to acts done, rather than acts omitted to be done; to offenses accomplished by active, and not passive, means. Of course, the principle contended for would apply as strongly to an act of nonfeasance as to an act of misfeasance, when such act can be logically and correctly described as having been done on some particular day, or upon some continuous days. In the pres- ent case it would not be true to charge the offense as committed on either the first or the last day of the three years allowed the city with- in which to construct the contemplated road, or on any intermediate day or days, or as committed upon any time short of the whole period of three years. The oft'ense was growing for three years, culminating at the expiration of that period. The ruling of the court on an analo- gous question in Smiley v. Inhabitants of Merrill Plantation, 84 Me. 322, 24 Atl. 872, sustains, as far as it goes, our conclusion here. Exceptions overruled.^* STATE v. KENNEDY. (Court of Errors and Appeals of Louisiana, 1845. 8 Rob. 590.) King, J. * * * ^^ The indictment, after stating the mortal blow, witli the usual averments of time and place, proceeds: "Of which mortal wound, so given by the said Samuel Kennedy, with the deadly weapons aforesaid, to the said Benjamin Wood Wait, the said Benja- min Wood Wait did then and there suffer and languish, and languish- ing did live, and a few hours after did die of the said mortal wound." No principle appears to be better settled than that, in indictments for high oft'enses, those termed felonies at common law, the averment of 18 "Anothier branch of this objection viz., that the time of committing the offense is not certainly averred, by the words 'on or about,' we consider answer- ed by the remarics already made. The two latter words in this averment have no meaning in this place, and are surplusage." Church, C. J., in Rawson v. State, 19 Conn. 292 (184S). Accord: Under statutes. State v. Hoover, 31 Ark. G76 (1877). But see State v. Baker, 34 Me. 52 (1852) ; State v. O'Keefe, 41 Vt. 691 (1869). 19 Part of this case is omitted. Nicholls, J., dissented. 94 THE INDICTMENT (Ch. 9 time and place is to be repeated to every issuable and triable fact. When these have been once set forth with certainty, they may, in every subsequent averment, be -referred to by the words "then and there," which are deemed equivalent to a repetition of the time and place! The time should be stated with such certainty that no doubt can be entertained of the period really intended ; and such is the pre- cision required in this respect that any uncertainty in the averment of time and place will vitiate the indictment. The material facts in murder are the mortal stroke and the con- sequent death, and the death must appear upon the record to have oc- curred within a year and day from the time when the mortal stroke was given. The averment, then, of each of these material facts must, under the well-established rules of criminal pleading, be accompanied by an allegation of a certain time and place. Thus, to aver that the assault was made on two days, as on the 1st and 2d of May, or on an impossible day, is such an uncertainty as will vitiate the indictment. If an indictment for murder state that A., at a given time and place, having a sword in his right hand, did strike B., it is bad, for the time and place relate to the having the sword, and it is not stated when or where the stroke was given. A., at a certain time and place, made an assault upon B., et eum cum gladio percussit, was held to be bad, because it was not said ad- tunc et ibidem percussit; the copulative conjunction "and," without the repetition of the time and place to this material ingredient of the offense, being deemed insufficient. In misdemeanors the same strict- ness is not required. 1 Chittv, 218, 219; Starkie, Cr. PI. 58, 62, 65; 2 Hale, 178; Archbold, Cr. PI. 34; 2 Hawk. c. 23, § 88. * * * It is therefore ordered that the judgment of the inferior court be re- versed, that the verdict in the case be set aside, and the judgment thereon arrested.'^" 20 The place of every material fact must be stated with sufficient certainty to show that the court has jurisdiction of the cause (State v. Johnson, 32 Tex. 96 [1S()9]), and to enable the defendant to prepare his defense, and to plead the judgment upon the indictment in bar of a second prosecution for the same offense (State v. Cotton. 24 N. H. 143 [1851]). It is usual to state the county in which the offense was committed ; but it is sufficient, at least in indict- ments for offenses not capital (Commonwealth v. Springfield, 7 Mass. 9 [ISIO]), to give a more particular description of the place, as a certain town, if the court can tal^e judicial cognizance of the fact that such place is entirely within the county (Vanderwerker v. People, 5 Wend. 530 [1S.30]). If the jurisdiction of the court is not coextensive with the county, it is not sutliciont to state that the offense was committed in the county. A more mi- nute description of the place is necessary. People v. Wong Wang, 92 Cal. 277, 2S Pac. 270 (1S91). So If the act alleged be a crime only when done in a par- ticular locality, it must be averred that it was done in such locality. State V. Ilogan. 31 i\Io. 340 (18G1). For the venue of offenses begun In one locality and completed in another, see Connor v. State, 29 Fla. 455, 10 South. SUl, 30 Am. St. Kep. 120 (1892) ; Morrif-sey v. People, 11 Mich. 327 (18G3). If a minor locality has been averred, it need not be proved as laid. Proof that the offense was committed anywhere within the jurisdiction of the court will suffice (Commonwealth v. Tolliver. 8 Gray fMas-s.] 38G, G9 Am. Dec. 252 (1857]), unless the statement of the minor locality is necessary to a proper Ch. 9) THE INDICTMENT III. Description of Persons Connected with the Offense 95 REX V. (Court for Crown Cases Reserved, 1S22. Russ. & R. 4S9.) The prisoner was indicted at the Old Bailey sessions in January, 1822, by the description of a person, whose name was to the jurors unknown. The offense with which he was charged was that of pub- lishing a blasphemous and seditious libel. It appeared that, when apprehended, he refused to declare his name before the magistrate, and the prosecutors, not being able to discover his name, indicted him as a man whose name was unknown to the jurors. When called to the bar, the indictment was read to him, and he then refused to plead, and was remanded. At the following ses- sions, in the month of February, the prisoner was again called to the bar, and by the advice of his counsel put in a demurrer in writing to the indictment. The prosecutors had time given them, until the next morning, to reply; but, before tkey could do so, the prisoner by his counsel moved the court to be permitted to withdraw his demurrer, which was granted ; and being then called on for his plea, he pleaded not guilty ; and, being told that he must plead by some name, he re- fused to give in any name. The learned recorder was of opinion that his plea could not be received without a name, and the prisoner was again remanded for want of a plea. At the following sessions he was again called on to plead, and again pleaded not guilty, but refused to put in that plea by any name. He was again told that the court could not receive his plea, unless he would plead by some name ; and, as he persevered in his refusal, he was again remanded. As this case appeared to be without precedent and might materially affect the administration of justice, the learned recorder requested the description of tlie offense. (People v. Slater, 5 Hill [N. Y.] 401 [1S43]), Com- monwealth V. Heffron. 102 Mass. 14S [ISGO]). Cf. State v. Verden, 24 Iowa, 12U (1S67). If such description is essential, it must be proved as described, even though the description be unnecessarily minute. State v. Kelley, GG N. H. 577, 29 Atl. 843 (1891). Where the venue has been properly stated in the caption, or commencement, it is sufficient to charge that the act was done "then and there" (State v. Slocum, 8 Blackf. [Ind.] 315 [1846], or "in the county aforesaid" (Eaves v. State. 113 Ga. 749, 39 S. E. 318 [1901]). St. 14 & 15 Vict. c. 100, § 23. provides: "It shall not be necessary to state the venue in the body of any indictment, but the county, city or other .iuris- diction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of such indictment: Provided that in cases where local description is or hereafter shall be required, such local description shall be given in the body of the indictment. * * * " More or less similar statutes have been enacted in some of the United States. See State v. Keel, 54 Mo. 182 (1873). Code Cr. Proc. N. Y. § 284, makes it a requisite for a valid indictment that "it can be understood therefrom that the crime was committed at some place within the jurisdiction of the court." See People V Horton, G2 Hun. GIO. 17 N. Y. Supp. 1 (1892). A similar provision is con- tained in Comp. Laws JS'ev. § 4208. See State v. Buralli, 27 Aev. 41, 71 Pac. 532 11903). 96 THE INDICTMENT (Ch. 9 opinion of the judges upon the following points: First, whether the prisoner could be admitted to put a plea on the record without a name ; secondly, whether such a plea should be treated as a mere nullity, and the prisoner be remanded from time to time, as in contempt for not pleading; thirdly, whether the refusal to plead by name would en- title the court to enter up judgment by default; and, fourthly, wheth- er in case the prisoner should ultimately plead by name, the court could proceed to try him upon this indictment or should quash the indictment as defective, and direct a fresh indictment to be preferred against him by the name by which he might plead. In Trinity term, 1822, this case being presented for consideration, some of the learned judges, before whom it was discussed, suggested that the prisoner might be indicted as a person whose name was un- known, but who was personally brought before the jurors by the keeper of the prison. An indictment was preferred accordingly, and the pris- oner was convicted. BARNESCIOTTA v. PEOPLE. (Supreme Court of New York, 1877. 10 Hun, 137.) Davis, P. J.^^ The plaintiffs in error were indicted for keeping a disorderly house. The plaintiff in error John Barnesciotta was named in the indictment by that name, followed by the words, "otherwise called Garibaldi." On being arraigned, his counsel read and filed the following plea: "Now comes the defendant, John Barnesciotta, and pleads to the indictment, that he is not now, and never was, known by the name of Garibaldi, which he verifies. John Barnesciotta. "Sworn this 25th day of September, 1876. "Wm. F. Howe, Commissioner of Deeds, N. Y." The district attorney filed a demurrer to said pica, and the said plaintiff in error joined in demurrer. The court overruled the demur- rer, and gave judgment thereon for the people. The demurrer was properly overruled. The true name preceded the alias dictus, and in such a case a plea in abatement will not be sustained. Reid v. Lord, 4 Johns. 118. It was quite immaterial whether the plaintiff in error was ever known by the name of Garibaldi, and the indictment did not so aver. If his true name be John Barnesciotta, as the plea in abatement must be taken to admit, then the 'alias dictus becomes wholly imma- terial, and is not capable of working prejudice to the plaintiff in error. Besides, the plea was defective in form. It does not aver the true name except argumentatively, and does not aver that he is not in- dicted by his true name ; and it docs not meet the averment of the in- dictment, which is not that the defendant was known by the name of "Garibaldi," but that "John Barnesciotta" was otherwise called "Gari- 21 Part of this case is omitted. Ch. 9) THE INDICTMENT 97 baldi," which may be, and probably was, a nickname by which he was sometimes called by his associates. There is no reason for interfer- ance with the conviction or judgment on this ground. The demurrer was a proper mode of disposing of the plea on the record. Rex v. Clark alias Jones, 1 D. & R. 43. * * * Judgment and conviction affirmed.^* CO^.IMONWEALTH v. BUCKLEY. (Supreme Judicial Court of Massachusetts, Plymouth, 1SS7. 145 Mass. 181, 13 N. E. 368.) Exceptions from superior court, Plymouth county; Thompson, Judge. Indictment charging that the defendants, on a certain day, to wit, at Brockton, on May 14, 1887, "knowingly, willfully, and maliciously did verbally threaten to accuse one Frank E. White, of Brockton, aforesaid, of having committed the crime of burning a building not his own, to wit, the store of John D. White, by words then and there knowingly, willfully, and maliciously spoken of and to the said Frank E. White, substantially as follows: 'You [meaning the said Frank E. White] are the man that set the fire, and, unless you give us one hun- dred dollars, we will make it hot for you. We will make a jail bird of you' — with intent then and there to extort money, to wit, the sum of one hundred dollars, from him, the said Frank E. White, against the peace," etc. At the trial in the superior court, it was proved, but the attention of the court was not called to the fact until after the com- mencement of the charge, that the name of the person referred to and designated in said indictment as Frank E. White was Frank A. White, and not Frank E. White, and there was no evidence tending to show that said Frank A. White had ever been known or called Frank E. White, until so designated in the indictment; and thereupon the de- fendants asked the court to rule that there was a variance between the allegations in said indictment and the proof, and that, by reason of said variance, the jury should return a verdict of not guilty. The court refused to so rule. * * * 23 Holmes, J. The name of the person threatened is necessary to the identity of the offense charged in the indictment, and therefore must be proved as set forth. Com. v. Mehan, 11 Gray, 321. It is settled in this commonwealth that a middle name or initial is part of the name, and a variance in regard to it is fatal. Com. v. Perkins, 1 Pick. 388 : Com. v. Hall, 3 Pick. 262; Com. v. Shearman, 11 Cush. 546. The ruling that there was no variance if Frank A. White was the person called Frank E. White in the indictment, probably went upon the 22 See. also, Falkner v. State, 151 Ala. 77, 44 South. 409 (1907). Evans v. State, 62 Ala. 6 (1878). 2 3 Part of the statement of facts is omitted, Mik.Cr.Pe. (Abridged Ed.) — 7 98 THE INDICTMENT (Ch. 9 ground that the E. might be rejected as snrplusag-e, as is held in some states.-* It cannot be said as matter of law that A. and E. are the same. There was no evidence that the party was ever called Frank E. White. Exceptions sustained. ^' REGINA V. BISS. (Court for Crown Cases Reserved, 1839. 2 Moody, 93.) The prisoner was tried and convicted before Lord Abinger, at the Essex Lent assizes, 1839. That she on the loth of August, at the parish of Lutton, in the county of Essex, on an infant male child aged about six weeks, and not baptized, feloniously, willfully, and of her mahce aforethought, did make an assault, and that she with her hands feloniously, etc., did force, cast, and throw said male child into a pond of water there, by means whereof said male child in, by, and with the waters of said pond was then and there choked, suffocated, and drowned, of which said choking, suffocating, and drowning said male child died ; and that she the said male child, in manner and form aforesaid, feloniously, willfully, and of her malice aforethought did kill and murder. 24 See State v. Manning, 14 Tex. 402 (1855); O'Connor v. State, 97 Ind. 104 (18S4) ; People v. Cook, 14 Barb. (N. Y.) 250 (18r.2). It Is held in some states that it is not necessary to insert the middle name or initial ; but. if inserted, it must be correctly stated. Price v. State, 19 Ohio, 423 (1850) ; State V. Hughes, 1 Swan (Tenn.) 261 (1851). 2 5 Accord : Reg. v. James, 2 Cox, O. C. 227 (1847). Cf. Rex v. , Q Car. & P. 408 (1834). The terms junior and senior are no part of the name, and the omission or Insertion of either does not render the indictment defective. Rex v. Peace, 3 B. & Aid. 579 (1820); People v. Collins, 7 Johns. (N. Y.) 549 (1811). At least where it does not appear that there are two persons of the name, or that the party was misled. .San Francisco v. Randall, 54 Cal. 408 (18S0). A person may be described either by his baptismal name or by a name by which he is commonly known. Wilson v. State, G9 Ga. 224 (1882) ; Alexander V. Commonwealth, 105 Pa. 1 (1884). Initials. — Some of the earlier cases hold that an indictment is defective if, Instead of stating the Christian name in full, it describes a person by the Initials of his Christian names. Gardner v. State, 4 Ind. 632 (1853), and see Smith V. State, 8 Ohio, 294 (1838). Later cases hold that, if he is known by his Initials, his name need not be more fully stated. State v. McMillan, 68 N. C. 440 (1873) ; State v. Apple- ton, 70 Kan. 217, 78 Pac. 445 (1904). Others that the initials are sufGcient in all cases. Eaves v. State. 113 Ga. 749, 39 S. E. 318 (1901). The defendant must object by a plea in abatement, in which he states his true name, when the indictment states his name incorrectly. Smith v. State, 8 Ohio, 294 (1838) ; State v. Brunell, 29 Wis. 435 (1872) ; Verberg v. State, 137 Ala. 73, 34 South. §48, 97 Am St. Rep. 17 (1902). The misstatement of the name of a third person, when the name of such person is material. Is a fatal variance (Collins v. State, 43 Tex. 577 [1875]), unless it Is shown that the per- son was also known by the name alleged, in which case the ^^uestion of variance is for the jury (Commonwealth v. Warren, 167 Mass. 53 [1896]), and may be taken advantage of by motion to quash or denuirrer. But such mis- nomer is cured by verdict. State v. Rook, 42 Kan. 419, 22 Pac. 626 (1889); State V. McMillan, GS N. C. 440 (1873); Slate v. Rudolph, 3 Hill, Law (S. C.) 257 (1S37). Ch. 9) THE INDICTMENT 99 An objection was made by Mr. Bowling-, the prisoner's counsel, that the indictment neither stated the name of the child, nor that the name was unknown to the jurors. The question reserved was whether that were a good objection. The case was considered by all the judges except Vaughan, J., GuRNEY, B., Williams, J., and Erskine, J., in Easter term, 1839, and they all thought the objection good, and that the judgment ought to be arrested.^* REX V. FOSTER. (Court for Crown Cases Reserved, 1820. Russ. & R. 412.) The prisoner was tried before Mr. Baron Garrow at the Maidstone Lent assizes in the year 1820, for committing an unnatural crime on one John Whyneard. The person on whom this crime was convicted, being called as a witness, said that his name was spelt Winyard, but it was pronounced Winnyard. The prisoner was convicted, and received sentence of death, but ex- ecution was respited, in order that the opinion of the judges might be taken on the objection that the name of the witness was misspelt. In Easter term, 1820, the judges took this case into consideration, and held the conviction right.^^ STATE V. McDowell. (Supreme Court of Indiana, 1S41. 6 Blackf. 49.) Dewey, J. This was a prosecution against a justice of the peace for oppression under color of his office. The circuit court quashed the indictment on the motion of the defendant. The objection urged against the indictment is that the defendant is not described by the addition of his degree, or mystery, and place of residence. By the common law no addition was required in indictments against persons under the degree of a knight. 1 Chitt. C. L. 204. The stat- ute of additions, 1 Hen. V, c. 5, enacts that defendants shall be de- scribed by adding to their names their estate, degree, or mystery, and place of residence, in all cases in which "the exigent shall be awarded." 2 6 Compare Reg. v. Hogg, 2 Moo. & R. 380 (1841); Reg. v. Willis, 1 Den. C. C. 80 (1845). 27 Whether the names are idem sonans is for the jury. Reg. v. Davis, 2 Den. C. C. 231 (1851). See, also, Commonwealth v. Warren, 143 Mass. 568, 10 N. E. 178 (1887). LOO THE INDICTMENT (Ch. 9 It has been held, in the construction of this statute, that in prosecu- tions which cannot be attended by the process of outlawry, the indict- ment need not give the addition of the defendant. 1 Chitt. Cr. L. 206 ; Bac. Abr. Indictment, 2 ; Id. Misnomer, 2 ; Rex v. Brough, 1 Wils. 244 ; Cro. Eliz. 148. The exigent, being a step in the proceedings of outlawry, is unknown to our law. It is, therefore, evident that the statute of additions, from its own terms, is not applicable to prosecutions in this state ; and it is equally clear that the common law does not require the defendant to be de- scribed by his addition in our indictments. The circuit court erred in quashing the indictment.^* IV. Description, Ownership, and Value o? Property The certainte of the name of the person to whom the offense is done, is also in most cases requisit. But yet if the endictment be quod bona et catalla cuiusdam hominis ignoti felonice cepit, or quendam ignotum felonice depredavit, it is good, because of the King's advantage of for- feiture thereby. Fitz. Endictment, 12. You may see an endictment (Fitz. Endict. 9) quod A. verberavit, et XX Jaccos prety &c, was thought sufficient without showing to whom the Jackes did belong: whereat, M. Stanford (fol. 95) marvel- eth, saying that hee saw no cause why it should be good, unless it were for that the matter could not bee made more certaine. But peradven- ture certaintie in endictments, was not in those daies thought so need- ful as now it is holden. * * * If the endictment be, quod A. verberavit B. and unum equum precy XX. s. felonice cepit, and doth not say, ipsius B. yet it is good enough. 30 H. 6, Fitz. Endict. 9. But if it be qd. unum equum prsedict' J. cepit, and there were no mention of J. before, then it is void. 9 E. 4, 1. If the goods of a man be taken and he maketh executors, and dyeth, the endictment shall be bona testatorius ; but if they were taken after his death, it shall be bona testatoris in custodia executorum existen- tia:^^ if the indictment be quod A. furatus est tunicam hominis ig- noti quem invenit mortuum, that is not good. 11 R. 2, Fitz. Endict 28 The statute of additions has been hold to be In force in a few states. See 1 Bish. New. Cr. Prac. § 674. Act 14 & 15 Vict. c. 100, § 24, abolished the necessity for the addition. Where the addition of defendant's decree, mystery, and residence Is necessary, the omission is onred by pleading to the indiolment. Rex v. ITan- nam, 1 Leach. C C. 420 (17S7). And a fortiori by verdict. Commonwealth V. Jackson, 1 Grant, Gas. (Pa.) 262 (18o5). 23 "Or it may be general bona ipsius A" — the executor. 2 ITale, P. C. ISl. See, also, U. S. v. Mason, 2 Cranch, C. O. 410. Fed. Cas. No. 15,728 (182.'',) ; Crockett v. State, 5 Tex. App. 52G (1870). "A hog, the property of a marriod woman, living with her husband, who has possession of it, is not incorrectly described In the Indictment for stealing it as the property of the husband." Manninc, J., in Lavender v. State, 60 Ala. 60 (1877). Ch. 9) TUE INDICTMENT 101 15. * * * If my goods be taken by a trespassour and an other taketh them from him, the endictment shall be bona of him which had the last possession.-'" But if I baile goods to one, from whom they be robbed, then it shall be bona of me in his keeping, Marr.^^ * * * If an en- dictment be, bona capellas in custodia &c. or bona domus, or Ecclesise tempore vacationis, it is good. 7 E. 4, 14.^ ^ The name (and value) of the thing in which the offence is commit- ted, ought also to be comprised in the endictment: for an endictment of the taking bona et catalla, whether it be in trespas or felonie, is not good, for the uncertaintie what goods they be: and if it be of dead things, it may be bona et catalla, expressing the names thereof in certaintie; but if it be of things living, it shall not say, bona et catalla, but equum, bovem, ovem, &c. Again the value (or price) of the thing is commonly to be declared in felonie, to make it appeare from petite larceny. * * * jj^ ^\\ q^ls- es (saith M. Marr.) where the number ought to be expressed in the endictment, there also it must be said, prety, or ad valentiam ;**=!= Where it is of a Hve thing or things, it must be prety: and so of a dead thing in the singular number : but if it be of dead things in the plural number, then it must be ad valentiam, and not prety.^^ Againe if it be of a dead thing that goeth by weight or measure, the forme is to say prety and not ad valentiam. If the endictment be of taking away coine which is not current, it shall say prety: otherwise if it is of money current, because that carrieth his value and price with it. If it be quod proditore fecit gros- sos, vel denarios, it shall be ad valentiam, and it shall not say, 20 libras in denarys, or in pecunia domini regis, but ad instar pecuniae domini regis. Sundry other daintie and nice differences doth M. Marr. make. Lambard's Eirenarcha, 496. REX v. KETTLE. (Chelmsford Assizes, 1819. 3 Chit. Cr. Law r4th Ed.] 947a.) The prisoner was indicted for stealing "one bushel of oats, one bush- el of chaff, and one bushel of beans, of the goods and chattels of. A. B., then and there found," and the proof was that these articles, at the time of the felonious taking, were mixed together. Bayley, J., 3 Accord: King v. State, 43 Tex. 351 (1875); Ward v. People, 3 Hill (N. Y.) 395 (1843). 31 Or the ownership may be laid in the owner, or in the bailee. Kennedy V. State, 81 Fla. 42S, 12 South. 80S (1893). Unless the owner be the thief, In which case the ownership should be laid in the bailee. Adams v. State, 45 N. J. Law, 448 (18S3). 3 2 See further, 25 Cyc. 96. 33 "But this I take to be but clerkship, and not substantial." 2 Hale, P. C. 183. 102 • THE INDICTMENT (Ch. 9 held that the articles ought to have been described as mixed, thus: "A certain mixture, consisting of one bushel," etc., and he directed an acquittal on this account.^* REX V. FORSYTH. (Court for Crown Cases Reserved, 1S14. Russ. & R. 274.) The prisoner was tried before Mr. Justice Dallas, at the Lent as- sizes for the county of Stafford, in the year 1814, on an indictment, the first count of which stated, that the prisoner * * * became bankrupt, and on 2Sth of same November, upon the petition of the before named persons, a commission of bankruptcy was issued, and that on 30th of same November, at Manchester, prisoner was declared a bankrupt, and notice thereof left at the dwelling house of prisoner, at Burslem aforesaid, * * * and that he, devising to cheat his creditors, did not at any of the said times, upon such his examina- tion, truly disclose and discover all his estates and effects, as was his duty so to do, but, on the contrary thereof, then and there did con- ceal and kept secret a bed, six tables, etc. (enumerating many articles), and "one hundred other articles of household furniture, and a certain debt due from one John Taylor to the said prisoner to the value of twenty pounds and upwards." as * * * The following objections were then taken to the indictment: * ♦ * Thirdly. That the household furniture, as well as the debt conceal- ed, etc., were not stated in the indictment with sufficient certainty, the former being, "and one hundred other articles of household furniture," and the latter, "a certain debt due from one A. B. to the said prison- er." In Easter term, 7th May, 1814, all the judges met (except Dampier, J., who was absent) and held the indictment bad, on the ground of the property concealed not being all specified, and no distinct value having been put upon the articles enumerated. * * * 38 3 4 "I doubt the propriety of that decision [Rex v. Kettle]. I cannot help thinkins: that, if a man steal wine and water, he may be char-od with stealing wine. The above principle would doubtless hold good, where the mixture was such as to produce a chemical change in the articles." Alderson, B., in Reg. v. Bond, 4 Cox, a C. 234 (1S30). 3 6 Part of this case is omitted. 36 "Upon an indictment for stealing printed books, as It has been observed by my Lord, it is not noces^sary to do more than to name so many printed books." Bayley, J., In Rex v. Johnson, 3 Maule & S. 555 (1S15). "An averment that the defendant conveyed a certain parcel of land in the city of Salem, without any other terms of description, is bad for uncer- tainty. * • ♦ The defendant may have owned other parcels of land in the city of Salem, which he conveved to the prosecutor on the day alleged." Bigex low, J., in Commonwealth v. P.rown. 15 Gray (Mass.) 190 (ISGO). See, also, State V. XIalloy, 34 N. J. Law, 410 (1871). Ch. 9) THE INDICTMENT 103 STATE V. BASSETT. (Supreme Court of Louisiana, 1SS2. 34 La. Ann. 1108.) Bermudez, C. J." The defendant was convicted of larceny and sentenced to hard labor. On appeal he complains, as he did in the lower court : * * * That he could not be convicted of stealing hens, when the charge was of stealing chickens, and that it was not proved that the chickens were Cochin China, but Buff Cochin chickens. * * * The district judge has well answered all the objections urged by the defendant. He says : "The description of the stolen property is two Cochin China chickens, of the value of," etc. In 2 Bishop's Cr. Pr. § 700, it is held that such description of the thing stolen as the following is good and sufficient, viz.: "One sheep," "a horse," "a certain mare," "one cow," "one watch," "one certain hog." In State v. Carter, 33 La. Ann. 1214, where the description was "one hog," it was held to be good, and a number of authorities cited in support. See, also. State v. Everage, 33 La. Ann. 122 ; State v. King, 31 La. Ann. 179. In State v. Thomas, 30 La. Ann. 600, the property was described as "one small hog." It was urged that indictment was insufficient, in not describing the animal by any mark, or by its color and sex. So, in the case at bar, it was urged that the color, condition and sex of the chickens ought to have been alleged. But if the description, such as "one hog," is sufficient, without mention of the color, sex, condi- tion, flesh marks, or ear marks, as was held in State v. Carter, 33 La. Ann. 1214, what reason exists for a more particular description when chickens are the subject of larceny? Chickens are designated accord- ing to sex and age, as chicks, pullets, cockrills, hens and roosters. Hogs are also known as pigs, shoats, barrows, sows "and boars. If an indictment charging the larceny of "one hog," or of "one small hog," is sustained by proof that the property stolen was either a boar, a barrow, a sow, certainly an indictment charging the larceny of a chicken is good, and evidence is admissible, whether the chickens stolen were hens, roosters or pullets. The state is bound to allege and prove every fact or ingredient nec- essal-y to constitute the crime charged. The converse must be equally true. If it is unnecessary to aver the color, marks or sex of a hog or chicken charged to have been stolen, then it is unnecessary to prove either of those facts. * * * Judgment affirmed.^* 8T Part of ttiis case is omitted. 3 8 See, also, State v. Stelly. 48 La. Ann. 1478, 21 South. 89 (1896). In Rex V. Douglass, 1 Camp. 212 (ISOS), Lord Ellenborough was of opinion that where a statute enumerated several articles, as baskets and parcels, an indictment under the statute must describe the article by its specific, not its generic, name. This doctrine was followed in Rex v. Loom, 1 Moody, C. G. 104 THE INDICTMENT (Ch. 9 PEOPLE V. BOGART. (Supreme Court of Califoruia, 1S6S. 36 Cal. 245.) The indictment charged the defendant with having stolen sundry gold coins, lawful money of the United States, of the aggregate value of three hundred and fifty dollars, and averred that the grand jury could not give a more particular description, as they had no means of knowledge. It also charged that the gold coins were the property of "Wells, Fargo & Co.," without giving the names of the firm, or averring that "Wells, Fargo & Co." was a partnership or a corpora- tion. * * * Sanderson, J.^® The general rule undoubtedly is that the stolen property, if money, should be described as so many pieces of current gold or silver coin, specifying the species of coin; but, if the species of coin be unknown to the grand jury, they may so state, in lieu of such specification. In this respect the law does not require greater certainty than the nature of the case affords.*** * * * 160 (1S27), where it was held that an indictment for stealing sheep would not support a conviction for stealing lambs, and in Rex v. Pnddifoot, 1 Moody, C. O. 247 (1829), where It was held that on a similar indictment one could not be convicted of stealing a ewe. These cases, and similar cases, seem to be overruled by Reg. v. Spicer, 1 Den. C. C. 82 (1845). 3 9 Part of this case is omitted. 40 Compare Reg. v. Bond, 1 Den. O. C. 517 (1849). In many jurisdictions It is held to be unnecessary to state the species, number, or denominations of the money stolen. Commonwealth v. Stebbins, 8 Gray (Mass.) 492 (1857) ; State V. Palmer, 20 Wash. 207, 54 Pac. 1121 (1898), by statute. Averments of Words and Writings. — When it is necessary to set forth an instrument, or writing, as in case of forgery or threatening letters, it may be prefaced by the words "to the tenor following," or "in these words," or "as follows," or "in the words and figures following," for though the setting forth of the instrument by the tenor which imports an accurate copy has been considered to be most technical, yet it has been holden that "as follows" is equivalent to the words "according to the tenor following," or "in the words and figures following," and that if, under such an allegation, the prosecutor fail in proving the instrument verbatim, as laid, the variance will be fatal, and unless the indictment, by the.se or similar expressions, profess to set out a copy of the instrument in w'ords and figures, it will be invalid. It would be improper to state in these cases, or in an indictment for libel, that the writing was "to the effect following," or "to the substance fol- lowing." There is no Judicial decision that, in an indictment for forgery, the purport and the tenor should both be stated. Purport means the substance of an instrument as it appears on the face of it to every eye that reads it; tenor means an exact copy of it. The words "in manner and form following, that is to say." do not profess to give more than the substance, and are proper in an indictment for perjury; but the word "aforesaid" binds the party to an exact recital. In forgery the indictment may run. that the prisoner forged a paper writing, stating what it was, to the tenor and effect following, etc. An exact copy of the instrument, in words and figures, must then be set forth, to enable the court to see that it is one of those instruments the false making of which the law considers as forgery, and if the instrument be in a foreign language, it must be translated; and the same rule applies to indictments for threatening letters. But in setting forth even the tenor of an instrument a mere variance of a letter will not vitiate, provided the meaning be not altered by changing the word misspelt Into an- Ch. 9) THE INDICTMENT 105 In another respect, however, the indictment is ba3. The ownership of the money is laid in "Wells, Fargo & Co.," without any specifica- tion of the copartners, if it is a partnership, or any allegation that "Wells, Fargo & Co." is a corporation, if such is the case. At com- mon law, if the stolen goods are the property of partners, or joint owners, the names of all the partners, or joint owners, must be stated. Commonwealth v. Trimmer, 1 Mass. 476 ; Hogg v. State, 3 Blackf . (Ind.) S26; State v. Owens, 10 Rich. Law (S. C.) 169. To avoid this difficulty, the statute of 7 Geo. IV, c. 64, § 14, was passed, which provided that where the stolen goods were the property of partners, joint tenants, parceners, or tenants in common, it should be sufficient to charge the property in one of them by name, and another or others, according to the fact; (but we have no such statute in this state. Hence, if "Wells, Fargo & Co." is the name or style of a firm or co- partnership, the names of the several persons who compose the firm should have been stated. If, however, "Wells, Fargo & Co." is the name of a corporation, the indictment would have been good, had it contained an allegation to that effect. 2 Russ. on Crimes, 99 ; People V. Schwartz, 32 Cal. 160. * * * Judgment reversed, and cause remanded for further proceedings, and remittitur directed to issue forthwith. «tlier of a different meaning. * • • When the purport may be adopted, in- stead of tenor, it is not necessary to state the matter with such verbal ac- curacy, as the former term merely signifies substance, while the latter im- ports an exact copy. But if the paper forged does not on the face of it appear to be that which the indictment states it purports to be, the proceedings will be invalid. In stating a libel or perjury it is necessary only to set forth so much of the matter as renders the offence complete; provided that the part omitted does not in any way alter the sense of that which is set out. In stating a libel, with the omission of a reference, from which on I'eading the libel it appeared to be a quotation, the variance was held fatal. In stating a libel or perjury, where different parts of the written instrument, not following each other, are set forth in the same count, they should not be professedly stated continuously, and as immediately following each other; for if they be so stated, and a part should not be proved, the whole count will fail. The proper course is to allege that "in one part of which affidavit or libel there were and are the words following," etc., and in another part thereof the words following, etc. * * * i Chitty, Cr. Law, 233. The statute of 23 Geo. II, c. 11, made it unnecessary In Indictments for per- jury to set out the false statement according to its tenor. See Bradlaugh v. Reg 3 Q B. D. 617 (1887). Similar statutes have been enacted in the United Statues. U. S. v. Walsh (O. C.) 22 Fed. 644 (1884) ; State v. Groves, 44 N. C 402 (1853). A common statute in the United States likewise abolishes the com- mon-law rule requiring, in indictments for forgery, that the writing be set out verbatim. State v. Childers, 82 Or. 119. 49 Pac. 801 (1807); Bostick v. State. 84 Ala. 266 (1859) ; State v. Pullens, 81 Mo. 387 (1884). 106 THE INDICTMENT (Ch. 9 V. Averment of the Degree of Defendant's Connection with THE Offense BANSON V. OSSLEY. (Court of King's Bench, 1686-87. 3 Mod. 121.) An appeal of murder was tried in Cambridgeshire against three per- sons, and the count was, that Ossley assaulted the husband of the ap- pellant and wounded him, in Huntingdonshire, of which wound he languished and died in Cambridgeshire, and that Lippon and Martin were assisting. The jury found a special verdict, in which the fact appeared to be, that Lippon gave the wound, and that Martin and Ossley were assist- ing. The first exception to this verdict was : That the count and the mat- ter therein alleged must be certain, and so likewise must the verdict, otherwise no judgment can be given ; but here the verdict finding that another person gave the stroke, and not that person against whom the appellant had declared, it is directly against her own showing.*^ * >P 9 The Court answered to the first exception, that it was of no force, and that the same objection may be made to an indictment, where in an indictment if one gives the stroke and another is abetting, they are both principally and equally guilty ; and an indictment ought to be as certain as a count in an appeal. * *. ♦ hatchett v. commonwealth. (Court of Appeals of Virginia, 1882. 75 Va. 925.) Anderson, J., delivered the opinion of the court. *^ The prisoner, Littleton Hatchett, was indicted jointly with Oliver Hatchett and Henry Carroll ; Oliver Hatchett for the willful and ma- licious murder of Moses Young by poison, Henry Carroll and Little- ton Hatchett, the prisoner, as accessories before the fact. It is stated in the petition that Carroll has been tried and acquitted. Oliver, who is charged as principal, had not been tried, but was still under arrest. The court is of opinion that the evidence is insufficient to connect Oliver Hatchett, who is charged as principal with the perpetration of this crime, to warrant the conviction of the prisoner as an accessory before the fact. At common law the accessory could not be tried until the principal had been convicted by the verdict of a jury (or outlawed), and th( *i Part of this case is omitted. Ch. 9) THE INDICTMENT 107 only evidence which was admissible to prove tlie principal's guilt, was the record of his conviction by the verdict of a jury in a court of com- petent jurisdiction. In England, and some of the American states, the common-law rule has been subverted by statute, which provides that an accessory before the fact to a felony "may be indicted, tried, con- victed and punished, in all respects as if he were a principal felon." Our statute does not go so far. It provides (Acts of Assembly 1877, p. 312, c. 10, § 7) that "in the case of every felon, every principal in the second degree, and every accessory before the fact, shall be pun- ished as if he were the principal in the first degree"; and by section 9, an accessory, either before or after the fact, may, whether the prin- cipal felon be convicted or not, or be amenable to justice or not, be in- dicted, convicted and punished, and an accessory before the fact may be indicted either with the principal or separately. These provisions are the same in the Code. It does not provide, as the Pennsylvania statute does, which is substantially a copy of the English statute, that he is to be indicted, tried and convicted in all respects as if he were the principal in the first degree. It is implied by the Virginia statute that he must be indicted, tried and convicted as an accessory before the fact, though he shall be pun- ished as if he were the principal in the first degree. He may be in- dicted, convicted and punished, whether accessory before or after the fact, by express terms of the statute; but it is as accessory, whether the principal felon has been convicted or not, and the accessory before the fact may be indicted either with the principal or separately, of course, as accessory. He could only be indicted under this statute as accessory. It gives no authority to indict him as principal. Accord- ingly in Thornton's Case, 24 Grat. 669, 670, it was held by this court that "our statute has not gone far enough to make an accessory before the fact to a felony liable to be convicted on an indictment against him as principal." Upon this view of the statute the conclusion is obvious that an accessory to a felony cannot be prosecuted for a substantive offense, but only as an accessory to the crime perpetrated by the prin- cipal felon, and in order to his conviction, although it is not necessary now to show that the principal felon has been convicted, it is necessary to show that the substantive ofifense, to .which he is charged as having been accessory, has been committed by the principal felon. The court is of opinion that the evidence is clearly insufficient to convict Oliver Hatchett, as principal, with administering the poi- son. * * * The court is of opinion that the evidence is plainly insufficient to convict Oliver Hatchett, who is indicted as principal with the killing, or to show that he was guilty of administering the poison. ♦ * * Judgment reversed.*^ *2 By statute In England (11 & 12 Vict c. 46), and In many of our states, the distinction between principals and accessories has been abolished. Some of 108 THE INDICTMENT (Ch. 9 REX V. THOMPSON. (Court of King's Bench, 1676. 2 Ler. 208.) Error on a judgment on an indictment alleging that the defendant knowingly received and harbored divers thieves to the jury unknown, that had stolen divers goods, and committed divers burglaries. Ex- ception. 1. That this is too general, and not more than alleging that one is a common receiver of felons ; and cited Co. 3 Inst. 12, 13, in- dictment for using divers diabolical arts. Rolls, Indictment, 79, com- mon oppressor of the neighborhood. These are bad, but common bar- retor is good because that term is well known. 2. Scienter recepit, is not good, but it ought to be that he knowing them to be thieves, re- ceived them, for he could know the persons and not know that they were thieves. 1 Cro. Bolton v. Banks, & Ibid. Kirmion v. Wells. 3. It ought to be that he feloniously received felonice recepit, for receipt of felons and harboring them knowing it is felony. But it was not allowed, for, by the count 1, perchance the felons could be particularly known no more than the felonies and burglaries. And a house that harbors felons is a common nuisance as is a common bawdy house. And as to 2, Jones said that scienter had been lately ruled good in one Sallie's Case. And as to 3, the king may if he please waive the felony and indict for trespass. Upon which the judgment was affirmed.^* SECTION 2.— JOINDER OF DEFENDANTS ANONYMOUS. (Upper Bench, 1649. Style, 157.) The court was moved to quash divers Endictments against the In- habitants of the Parishes of Shoreditch and Hackney in Middlesex, for not repairing the High ways. The exception taken was, that the these statutes specifically provide that the accessory may he Indicted as a principal. See Campbell v. Commonwealth, 84 Pa. 1S7 (1S77) ; People t. Davidson, 5 Cal. 133 (1855). ■13 "It devolves on the commonwealth to show the guilt of the principal felon before a conviction of the accessory can be had ; therefore It is necessary that an indictment against an accessor^' shall contain such allegation as to the commission of the crime and the guilt of the principal as would make it a good indictment against the principal ; and these statements are Indispensable to the validity of an indictment, whether .ioint or several." Pryor, J., In Tully V. Commonwealth, 11 Bush (Ky.) 158 (1874). "It is in no case necessary to set forth the means by which the accessory before the fact Incited the principal to commit the felony, or the nrrc^sory after received, concealed or comforted him." Fogler, J., in State T. Neddo, 92 Me. 77, 42 Atl. 2Zo (ISOS). Ch. 9) THE INDICTMENT 109 Parishes are jointly endicted, whereas their offences are several, and also not equal, and yet both fined alike. The Court quashed the En- dictment, and discharged the issues which were not retorned, but not those that were retorned. REX V. PHILIPS. (Court of King's Bench, 1731. 2 Strange, 921.) Six persons were indicted in one indictment for perjury, and four of them pleading were convicted. It was then moved, in arrest of judgment, that crimes (especially perjury) were in their nature several, and two cannot be indicted together. And Palm. 535. 6 Mod. 210. 2 Roll. Abr. 81, pi. 6, 7. Salk. 382. Pas. 11 Geo. I. Rex v. Weston et al., ante 623. Trin. 4 Geo. II. Rex. v. Clendon, ante STO. 1 Keb. 585. 612, 635, were cited. E contra were cited Salk. 382, in extortion, Trin. 10 Anne, Regina V. Marshal, against two for receiving stolen goods. 1 Ven. 302. 3 Keb. 700, for maintenance. 3 Roll. Rep. 345. Palm. 307.. Salk. 384, against husband and wife for keeping a disorderly house, and Regina v. Dixon et ux. Sti. 312. Cro. El. 230. 3 Leon. 230, where this ex- ception was not taken in perjury. Cro. Car. 380. Sed Per Curiam. There may be great inconveniences if this is al- lowed ; one may be desirous to have a certiorari, and the otlier not ; the jury on the trial of all may apply evidence to all, that is but evi- dence against one. The cases cited are all of that which may be joint, as extortion, maintenance, &c. but perjury is a separate act in each: and Trin. 6 Ann. Regina v. Hodson et al., two were indicted for being scolds, and comnared to barretrv, and held not to lie. The judgment was arrested. Strange pro def.'** CUSTODES v. TAWNY AND NORWOOD. (Upper Bench, 1651. Style, 312.) Tawny and Norwood were jointly endicted for blasphemous words severally spoken by them, upon the late statute made against blas- phemy, and were convicted, the parties being removed hither by habeas corpus. It was urged that the endictment was not good, because it was joint, whereas the words being spoken by them severally, they ought to have been endicted severally ; for the words spoken by one of them cannot be said to be the words of the other. But Roll, Chief Justice, said: The endictment was good enough though it be joint, as it is in 44 Accord: Uttering profane language. State v. Lancaster, 36 Ark. 55 (18S0). Public drunkenness. State v. Deaton, 92 N. C. 7SS (1SS5). 110 THE INDICTMENT (Ch. 9 the case of several perjuries, and several batteries, where a joint en- dictment doth He, although it do not for several felonies, and here the endictment is upon one and the same statute, and for one and the same offence, and therefore the judgment given upon it is also good, and it shall be taken reddendo singula singulis (i. e.) the words to each of them as they spoke them.*^ REX V. SUDBURY. (Court of King's Bench, 1699. 12 Mod. 262.) The defendants were indicted, for that they riotose et routose as- semblaverunt, and so assembled committed a battery on Mary Russell. Two of them were found guilty, and all the others were acquitted; and judgment was arrested, for two cannot commit a riot. But by Holt, Chief Justice. If the indictment had been, that the defendants, with divers other disturbers of the peace, had committed this riot, and the verdict had been, in this case the king might have judgment.*^ SECTION 3.— JOINDER OF OFFENSES It is frequently advisable, when the crime is of a complicated na- ture, or it is uncertain whether the evidence will support the higher and more criminal part of the charge, or the charge precisely as laid, to insert two or more counts in the indictment. * * * Every sep- arate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of the joinder of of- fenses, that the joinder of counts is admitted. 3 T. R. 106, 107. And to the supposed second or third offense in each count should be pre- fixed a statement that the jury super sacramentum suum ulterius prse- sentant. Holt, 687; 4 St. Tr. 686; 6 St. Tr. App. 56; 2 Salk. 632. Nor will the defect of some of the counts affect the validity of the remainder, for judgment may be given against the defendant upon those which are valid. Chitty, Criminal Law, 248. fendant. The plea is that a verdict was rendered, and judgment now impends. And here it must be admitted that a previous acquittal, con- viction, or attainder is a good bar ; but what shall be the evidence of such conviction is the inquiry. That a person had been arraigned for the same offense was early held to be no bar to a subsequent indictment. Withipole's Case, Cro. Car. 147. Nor that a nolle prosequi had been entered by the attorney for the government. Commonwealth v. Wheeler et al., 2 Mass. 172/^ Nor that the jury had been discharged, at the request of the prisoner. Rex v. Kinlock, 1 Wils. 157. Nor even where the jury have been discharged because they could not agree, without consent of the pris- oner. State V. Woodruff', 2 Day, 504, 2 Am. Dec. 122; People v. Olcott, 2 Johns. Cas. (N. Y.) 301, 1 Am. Dec. 168.'° Nor can the pendency of another indictment be pleaded in abatement, as it may in a case of a prosecution for a penalty. Rex v. Stratton. Doug. 240 ; Regina v. Goddard et al., 2 Ld. Raym. 930, s. c. 3 Salk. 171. Nor can a conviction or an acquittal be pleaded, if the former indictment was 19 Contra: Where the nolle prosequi has been entered after the jury has been impaneled. Reynolds v. State. 3 Ga. 53' (1S47) ; U. S. v. Farring, 4 Cranch, C. O. 465, Fed. Cas. No. 15,075 (1S34). Unless the nolle prosequi was entered because the indictment was insufficient to warrant a conviction. Walton V. State, 3 Sneed (Tenn.) 687 (1856). Or because of a material vari- ance. Martha v. State, 26 Ala. 72 (1855). "There is, in point of law, a difference between the plea of autrefois con- vict, and autrefois attaint of the same offense. The former may be whore there has been no judgment; the latter is founded upon a judgment." Story, J., in U. S. V. Gilbert, 2 Sumn. 40, Fed. Cas. No. 15.204 (1S34). -0 But where the jury was discharged without the consent of the prisoner and before they had declared themselves unable to agree, the prisoner was hold to have been in jeojiardy. People v. Warden, 202 N. Y. 138, 95 N. E. 729 (1911). Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 131 not sufficient to authorize punishment, if a conviction had ensued. King V. Taylor, 3 B. & C. 502 ; 4 Co. 45 ; 1 Chitt. Cr. L. 4G3. And it has been said that if the defendant remains after conviction, without requesting judgment, or praying for clergy, he could not plead such conviction to a new indictment. 2 Hale's P. C. 252; Stark. C. L. 364. That no one, however, shall be put in jeopardy twice for the same offense, is a universal maxim (4 Bla. Comm. 329), thought worthy to be incorporated, to a certain extent, into the Constitution of the United States, And that an acquittal or conviction, by a court having juris- diction, on a sufficient indictment or information, is in all cases what- soever a bar, is equally clean 2 Hawk. P. C. bk. 2, c. 30, § 1 ; 2 Leon. 161. Still the question returns, what is sufficient evidence? Is it the verdict, or the verdict and judgment? It is said by Chitty that there must be a legal acquittal by judgment upon trial, by verdict of a petty jury, or by battle. 1 Chitt. C. h. 457. Tucker, in his notes to Black- stone, says the plea must state the indictment, arraignment, plea, and judgment legitimo modo. 4 Bla. Comm. 336, by Tucker. And in the forms of pleading a judgment is set out, or that the defendant has had his clergy. Stark. C. L. 352. And the general rule certainly is that a verdict without a judgment is not evidence, as it may be arrested The record of the judgment, therefore, must be adduced, to exclude a witness. Swift's Ev. 18; 1 Stark. Ev. 183, 246; 2 Stark. Ev. 716; Lee V. Gansel, Cowp. 3 ; Commonwealth v. Green, 17 Mass. 537. So proof of conviction of the principal, on the trial of the accessory, must be by judgment upon a verdict or confession, or by outlawry. 4 Co. 43; Goff v. Byby et al., Cro. Eliz. 540. On the other hand, it is said, in 4 Bla. Comm. 335, that when one is found not guilty, on an indictment or other prosecution, he may plead such acquittal in bar of any subsequent prosecution. And an acquittal has been held sufficient to entitle bail to their discharge be- fore judgment is entered. Rex v. Spenser, 1 Wils. 315. And in the case of Queen v. Goddard, 2 Ld. Raym. 921, s. c. 3 Salk. 172, Holt, C. J., says that another indictment pending could not be pleaded in abatement, even after the accused had been found guilty upon it, but it must be pleaded in bar. And Judge Dane, after citing an authority to show that a judgment is necessary, makes a quaere; for, says he, when the defendant has once stood trial for his life, he has been clearly once in jeopardy, though there has been no judgment or clergy. 6 Dane's Abr. 531. And in Brooke's Case, 4 Co. 40, after verdict of guilty, on an appeal and motion in arrest, on an indictment at the suit of the king, it was claimed that the defendant could not be charged again, and it was resolved that, "if the count had been sufficient, then being convicted at the suit of the party, he should not be again con- victed at the suit of the king; and the same principle is recognized, in Vaux's Case, 4 Co. 45. 1 Chitt. C. L. 462, 464, et seq. Had not a verdict been sufficient, it is not easy to see how the sufficiency of the count came to be considered. And in Withipole's Case, Cro. Car. 147, the court quashed one of two indictments, lest the prisoner should be 132 ARRAIGNMENT, PLEAS, AND MOTIONS (Cll. 10 questioned on both. And in Rex v. Kinlock, 1 Wils. 157, Wright, J., against the other judges, held that to call a new jury would be to put the prisoner twice in jeopardy, although the former jury was dis- charged at his request; and upon report thereof the prisoner was pardoned. An accessory may be put upon trial before judgment against the principal, but cannot be sentenced until after judgment against the principal, as in the recent Case of Elsie Whipple, 9 Cow. (N. Y.) 707. And in a civil case, where a judgment was not rendered, but a verdict taken before a justice was pleaded in bar, it was held a valid bar, as the justice could not arrest the judgment or grant a new trial. Felter V. Mulliner, 2 Johns. 181. When, then, we consider the extreme jealousy which the common law evinces on this subject, supported by the provisions of the Con- stitution ; when we find no case where a prosecution has been sustained after verdict upon a different count, and amidst so much doubt wheth- er the legal principle as to the necessity of a judgment has been ex- tended to cases of this kind ; when we further find that both these prosecutions are in the same court, and no claim is made that judg- ment cannot be rendered upon the first verdict — I think the more cor- rect rule to adopt is that under such circumstances a second informa- tion ought not to be supported, although judgment had not been actu- ally entered upon the first at the time of pleading. I would, therefore, affirm the judgment of the superior court. The other Judges were of the same opinion; Peters, J., doubting. Judgment affirmed. CHAMPNEYS' CASE. (York Assizes, 1837. 2 Lew. 52.) The prisoner, Champneys, was indicted as principal for delivering in a false schedule to the Insolvent Court, and the others for aiding and abetting him.^^ Cottingham, for Champneys, pleaded ore tenus autrefois acquit, as to a part of the goods alleged to have been omitted from the schedule. * * * Sir G. A. Lewin replied, that a man might well be acquitted as to some articles and not as to others, and that it was obvious, where fraud was intended, that concealment as to some might precede that of others. Patteson, J. If the articles, or any of them, are different, I am bound to proceed; but, if the offense should turn out to be substan- tially the same as that the prisoner has already been acquitted of, I shall recommend the jury to acquit. Whether at the former trial the proper evidence was adduced before the jury or not is wholly imma- 21 Part of this case is omitted. Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 133 terial ; for if, by any possible evidence that could have been adduced, he could have been convicted on that indictment, he is now entitled to an acquittal. ROBERTS V. STATE. (Supreme Court of Georgia, 1853. 14 Ga. 8, 58 Am. Dec. .'28.) The defendants, with others, were indicted for a robbery committed upon John Jackson, of said county. At March term, 1853, they filed a plea setting forth the record of a former indictment against them for burglary, upon which they had been tried and convicted, and which they averred to be the same felony, and none other, for which they were now indicted. To this plea, the Solicitor General in writing de- murred, denying its sufficiency in law to operate the acquittal of the defendants. Upon consideration of such demurrer, the plea was over- ruled by the court, and the defendants required to answer over 22 Starnes, J., delivered the opinion. * * * The main fact stated, and on which the plea rested, was that the defendants had been previously convicted on the charge of burglary, that judgment had been rendered on said conviction, and that the fel- ony of which they had been so convicted was one and the same with the felony of which they then stood accused. Of course, the Solicitor, by so demurring, and admitting that this 'charge of robbery was the same felony as that of which the defendants had been convicted, in- tended only to admit that the two indictments related to the same transaction, and did not mean to admit that the charge was the same in each case. Taking this, then, as true, it becomes our duty to make the following inquiry: When a prisoner has been indicted for having burglariously broken and entered the dwelling of another with intent to steal the goods and chattels of the owner, and, in order to manifest such intent on the trial, proof be adduced that the prisoner did vio- lently, or by intimidation from the person of the owner, steal such goods and chattels, and he be convicted, and afterwards an indictment for the robbery committed at the time be found against him, can he then be tried, if he plead autrefois convict, for such robbery as a sep- arate' offense? The case made by this record invokes an answer from us to this question. The record, it is true, does not show that, upon the trial of these defendants for the burglary, that part of the evidence which 2 2 Parts of the statement and opinion are omitted. "An acquittal of 'the charge of larceny of certain goods Is not a bar to an Indictment for the larceny of certain other goods, although the last-men- tioned goods are of such a character that the language of the first indictment niiirht describe them." Per Curiam, in Commonwealth v. Sutherland, 109 Mass. 343 (1872). 134 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 was relied upon to show the felonious intent was the same with that which was offered upon the trial for robbery ; but this is in effect ad- mitted by the demurrer to the plea, as we have shown, and thus the question presented arises. Of the sufficiency of the plea of former acquittal or conviction, the following is said to be a true test, viz. : Whenever the prisoner might have been convicted on the first indictment, by the evidence necessary to support the second ; or, in other words, where the evidence neces- sary to support the second indictment would have sustained the first. Arch. C. P. 106 ; Rex v. Clark, 1 B. & B. 473 ; People v. Barrett, 1 Johns. (N. Y.) 6Q; Com. v. Cunningham, 13 Mass. 245; Hite v. State, 9 Yerg. 357; People v. McGowan, 17 Wend. 386; State v. Risher, 1 Rich. Law, 222 ; Durham v. People, 4 Scamm. 172 ; Com. v. Wade, 17 Pick. 400 ; 2 Hawks, 98. This may be said to be the case in all compound felonies. 1 Ross on C. 89, note. There seems to be some difficulty in applying this rule (as above expressed) in all cases. It may be said that the prisoner could not have been convicted on the indictment for burglary, by the proof nec- essary to convict on the indictment for robbery ; and the evidence nec- essary to support the indictment for robbery would not have insured a conviction on the prosecution for burglary. If the indictment for robbery, however, had been first tried, then, upon the trial of the burglary, the proof necessary to support that last trial would have been such as would have been sufficient to sustain the first prosecution, be- cause, after proof of the breaking and entering by the prisoner, the state would have proceeded to prove the violent stealing from the prosecutor, in order to show the breaking, etc., with felonious intent ; and this would have been proof of the robbery. To avoid any confusion on this subject, we adopt the rule as it is otherwise more generally, and perhaps more accurately, expressed, viz., that the plea of autrefois acquit or convict is sufficient, whenever the proof shows the second case to be the same transaction with the first. Fiddler v. State, 7 Humph. (Tenn.) 508; Thach. 206, 207. That rule is decisive of this case. * * * The rule above stated by me is that which is prescribed for this case, and it must be the law for these defendants. This record shows that the transaction referred to in the indictment for burglary is the same with that in the prosecution for robbery, in- asmuch as the pleader, in order to show the felonious intent, has made it necessary in the former to prove the circumstances of the stealing, and thus to involve the same transaction (the robbery) in both cases. If the pleader had alleged the breaking with felonious intent (which constitutes burglary), and had been able to prove, otherwise than by proof of the robbery, that the felonious intent was manifested, then the two m,ight not have constituted the same transaction. But this was settled by the demurrer; and the state's counsel, having elected to Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 135 make his proof of felonious intent in this way, has put his case within the application of the rule. In passing sentence upon these defendants, after the conviction in the case of burglary, the court no doubt graduated the penalty accord- ing to the circumstances of the transaction, thus taking into considera- tion the proof of the robbery ; for it is to be presumed that a break- ing and entering of a dwelling house, accompanied by an actual rob- bery, would have been more severely punished than a breaking and entering with an intent to rob which was not consummated. If this be so, and the defendants have been held to some degree of punish- ment in consideration of the robbery, to try them again for it would be, as it were, to place them in jeopardy a second time on account of the same offense, thus in some sort violating the fundamental prin- ciple on which the plea of autrefois acquit and convict rests. Hence, again, the propriety of the rule which we recognize and apply. On this ground, we reverse the judgment of the court. * * * STATE V. ROSENBAUM. (Appellate Court of Indiana, 1899. 23 Ind. App. 236, 55 N. E. 110, 77 Am. St. Rep. 432.) Robinson, J, Appellee was indicted for permitting a person named to be and remain in his place of business during prohibited hours, con- trary to the provisions of section 3 of the act of March 11, 1895 (Acts 1895, p. 218). Appellee pleaded in abatement, setting up a former in- dictment and acquittal, that the person named in the present indictment as having been in the saloon was in company with the person named in the former indictment, and that the acts complained of in the present indictment are identical with those complained of in the former in- dictment, of which he had been acquitted. A demurrer to this plea was overruled, and upon this ruling the appeal is based. The question presented is, can the proprietor of a place where liq- uors are sold, who permits two or more persons at the same time to be in the room during prohibited hours, be prosecuted for a separate offense as to each of such persons? The Attorney General, in his brief, states that he is of the opinion that the question must be answer- ed in the negative. In Smith v. State, 85 Ind. 553, the court said: "The true test to determine the sufficiency or insufficiency of a plea of former acquittal as a bar to the pending prosecution is this : Would the same evidence be necessary to secure a conviction in the pending, as in the former, prosecution? If it would, then the plea of former acquittal would be a complete bar to the pending prosecution ; other- wise, the plea would not be sufficient." The case of State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, states the following rule: "When the facts constitute but one offense, though it may be susceptible of divi- sion into parts, as in larceny for stealing several articles of property L36 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 at the same time, belonging to the same person, a prosecution to final judgment for stealing a part of the articles will be a bar to a subse- quent prosecution for stealing any other part of the articles stolen by the same act." See, also, State v. Gapen, 17 Ind. App. 524, 45 N. E 678, and 47 N. E. 25 ; Davidson v. State, 99 Ind. 3G6 ; Fritz v. State, 40 Ind. 18 ; Wininger v. State, 13 Ind. 540 ; Brinkman v. State, 57 Ind. 76. The statute makes it unlawful for the proprietor to permit "any person or persons other than himself and family" to go into the room at prohibited times. In the case at bar the crime committed was permitting "persons other than himself to go into such room" during prohibited hours. It was a single offense, which cannot be split up and prosecuted in parts. "A prosecution for any part of a single crime bars further prosecu- tion based upon the whole or a part of the same crime." Laupher v. State, 14 Ind. 327. The appeal is not sustained.^^ IMOREY V. COMMONWEALTH. (Supreme Judicial Court of Massachusetts, 1871. lOS JIass. 433.) Writ of error to reverse the judgment of the superior court upon a conviction of the plaintiff in error on an indictment for adultery. Plea, in nullo est erratum. The record showed that at September term, 1867, of the superior court in Norfolk, two indictments were found against the plaintiff in error, the first for lewd and lascivious cohabitation, and the second for adultery. The first indictment charged that he and Bridget Ken- nedy, on October 1, 1866, and "from that day continually to" August 1, 1867, at Quincy, "did lewdly and lasciviously associate and cohabit together," they "not being then and there married to each other." The second charged, in three counts, that on January 1, June 1, and August 1, 1867, respectively, at Quincy, he committed adultery with Bridget Kennedy, he "being then and there a married man and then and there having a lawful wife alive other than the said Bridget Kennedy," and he and said Bridget "not being then and there lawfully married to each other." The record further showed that at said term, he and Bridget Ken- nedy were tried together on the first indictment, and found guilty, and he was sentenced thereon to confinement at hard labor in the House of Correction for two years, and that at the same term he was tried and found guilty on the second indictment, and sentenced thereon to confinement at hard labor in the House of Correction for three years, 2 3 See, also, Ball v. State, 67 Miss. 358, 7 South. 353 (1SS9) ; State v. Ross, 4 Lea (Tenn.) 442 (1880) ; Irvin v. State, 7 Tex. App. 78 (1879). A statute providing for an increased penalty for a second conviction for crime is not invalid, as putting the offender twice in jeopardy for the same offense. State v. Le Pitre, 54 Wash. 166, 103 Pac. 27, 18 Ann. Cas. 922 (1909). Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 137 "this sentence to take effect from and after the expiration of his pre- vious sentence at this term of the court." The assignment of errors was that the sentence on the second in- dictment was wrongful, in that the plaintiff in error "had been previ- ously convicted and sentenced to two years' confinement in said House of Correction for the same acts for which this sentence was awarded." H. L. Hazelton, for the plaintiff in error. C. Allen, Attorney Gen- eral, for the Commonwealth. Gray, J. A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evi- dence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes ; and if each statute requires proof of an additional fact which the other does not, an ac- quittal or conviction under either statute does not exempt the de- fendant from prosecution and punishment under the other. An acquittal or conviction upon an indictment for murder is a bar to a subsequent conviction upon an indictment for manslaughter or as- sault by the same act by which the murder was charged in the first indictment to have been committed, because such a conviction might have been had upon the first indictment. And so, e converso, an ac- quittal or conviction of the manslaughter is a bar to a subsequent in- dictment for the murder. Commonwealth v. Roby, 12 Pick. 496, 504, 505, and authorities cited; 1 Stark. Crim. PI. (2d Ed.) 323, 324; ?■ Russell on Crimes (4th Ed.) 55-59 ; Rev. St. c. 137, § 11 ; Gen. St. c. 172, § 16 ; Commonwealth v. Drum, 19 Pick. 479 ; Commonwealth V. Squire, 1 Mete. 258, 262 ; Commonwealth v. Lang, 10 Gray, 11 ; Commonwealth v. Squires, 97 Mass. 59. On the other hand, a conviction of an assault with intent to mur- der was held by this court to be no bar to an indictment for murder, before our statutes permitted a conviction of such an assault upon an indictment for murder. Commonwealth v. Roby, 12 Pick. 496 ; St. 1805, c. 88, § 2; Rev. St. c. 137, § 11, and commissioners' note; Gen. St. c. 172, § 16. A conviction of being a common seller of intoxicating liquors has been- held to bar a prosecution for a single sale of such liquors within the same time, upon the ground that the lesser offense, which is fully proved by evidence of the mere fact of unlawfully making a sale, is merged in the greater offense ; but an acquittal of the offense of be- ing a common seller does not have the like effect. Commonwealth v. Jenks, 1 Gv2.y, 490, 492; Commonwealth v. Hudson, 14 Gray, 11; Commonwealth v. Mead, 10 Allen, 396. It has also been repeatedly held that the offenses of keeping a tene- ment used for the illegal sale and illegal keeping of intoxicating liquors, of illegally selling such liquors, and of doing secular business on the 138 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 Lord's day, are distinct offenses, and a conviction of the one is no bar to a conviction of either of the others, although the same acts of sale are relied on in proof of each. Commonwealth v. Bubser, 14 Gray, 83 ; Commonwealth v. Shea, 14 Gray, 386 ; Commonwealth v. Cutler, 9 Allen, 486; Commonwealth v. O'Donnell, 8 Allen, 548; Common- wealth V. Trickey, 13 Alien, 559; Commonwealth v. Hogan, 97 Mass. 122 ; Commonwealth v. Sheehan, 105 Mass. 192. The case now before us cannot be distinguished in principle from those just cited. The indictment for lewd and lascivious cohabitation contained no averment and required no proof that either of the parties was married, but did require proof that they dwelt or lived together, and would not be supported by proof of a single secret act of unlaw- ful intercourse. Commonwealth v. Calef, 10 Mass. 153. The indict- ment for adultery alleged and required proof that the plaintiff in er- ror was married to another woman, and would be satisfied by proof of that fact and of a single act of unlawful intercourse. Proof of un- lawful intercourse was indeed necessary to support such indictment. But the plaintiff in error could not have been convicted upon the first indictment by proof of such intercourse and of his marriage, without proof of continuous unlawful cohabitation ; nor upon the second in- dictment by proof of such cohabitation, without proof of his marriage. Full proof of the offense charged in either indictment would not, there- fore, of itself have warranted any conviction upon the other. The necessary consequence is that, assuming that proof of the same act or acts of unlawful intercourse was introduced on the trial of both in- dictments, the conviction upon the first indictment was no bar to a conviction and sentence upon the second, and that there is no error in the judgment for which it can be reversed. The question of the justice of punishing the offender for two dis- tinct offenses growing out of the same act was a matter for the con- sideration of the grand jury and the attorney for the commonwealth in the presentment and prosecution, of the court below in imposing sentence, or of the executive in the exercise of the pardoning power. It is not within the jurisdiction of this court as a court of error. Judgment affirmed. Ch. 11) PRESENCE OF THE DEFENDANT AT THE TRIAL 139 CHAPTER XI PRESENCE OF THE DEFENDANT AT THE TRIAL When any felons appear in judgment to answer of their teiony, our will is that they come barefooted, ungirt, uncoiled, and bareheaded, in their coat only, without irons or any kind of bonds, so that they may not be deprived of reason by pain, nor be constrained to answer by force, but of their own free will ; and then, agreeably to the pre- sentment against them, let them be indicted. Britton (Nichols-Baldwin) 29. REG. V. TEMPLEMAN. (Court of Queen's Bench, 1702. 1 Salk. 55.) Upon a motion to submit to a small fine, after a confession of the indictment which was for an assault. * * * i Defendants may submit to a fine, though absent, if they have a clerk in Court that will undertake for the fine. Hil. 2 Anne, Hickeringil's Case was, that he and his daughter were indicted for a trespass, and Hickeringil only appeared on the motion to submit to a small fine. But where a man is to receive any corporal punishment, judgment can- not be given against him in his absence, for there is a capias pro fine ; but no process to take a man and put him on the pillory. Vide tit. Judgments, Duke's Case.* HOPT V. PEOPLE OF THE TERRITORY OF UTAH. (Supreme Court of the United States, 1SS3. 110 U. S. 574, 4 Sup. Ct 202. 28 L. Ed. 262.) Harlan, J." The plaintiff in error and one Emerson were jointly indicted in a court of Utah for the murder, in the first degree, of John F. Turner. Each defendant demanded a separate trial, and pleaded not guilty. Hopt, being found guilty, was sentenced to suffer death. The judgment was affirmed by the Supreme Court of the territory. But, upon writ of error in this court, that judgment was reversed, and the case remanded, with instructions to order a new trial. 104 U. S. 1 Part of this case is omitted. 2 "This was, however, not of course, but only in the discretion of the court." Rex v. Harwood, 2 Str. 1088 (1728). 3 Part of this case is omitted. 140 PRESENCE OF THE DEFENDANT AT THE TRIAL (Ch. 11 631, 26 L. Ed. 873. Upon the next trial, the defendant being found guilty, was again sentenced to suffer death. That judgment was af- firmed by the Supreme Court of the territory. We are now required to determine whether the court of original jurisdiction in its conduct of the last trial committed any error to the prejudice of the substantial rights of the defendant. 1. The validity of the judgment is questioned upon the ground that a part of the proceedings in the trial court were conducted in the ab- sence of the defendant. Cr. Code Proc. Utah, § 218, provides that "if the indictment is for a felony the defendant must be personally present at the trial ; but if for a misdemeanor the trial may be had in the ab- sence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the pros- ecuting attorney, by an order or warrant, require the personal at- tendance of the defendant at the trial." * * * It appears that six jurors were separately challenged by the defend- ant for actual bias. The grounds of challenge in each case were de- nied by the district attorney. For each juror triers were appointed, who, being duly sworn, were, "before proceeding to try the challenge," instructed as required by section 252 of , the Criminal Code; after which, in each case, the triers took the juror from the courtroom into a different room and tried the grounds of challenge out of the pres- ence as well of the court as of the defendant and his counsel. Their findings were returned into court, and the challenge, being found not true, the jurors so challenged resumed their seats among those sum- moned to try the case. Of the six challenged for actual bias, four were subsequently challenged by the defendant peremptorily. The other two were sworn as trial jurors, one of them, however, after the defendant had exhausted all his peremptory challenges. No objection was made to the triers leaving the courtroom, nor was any exception taken thereto during the trial. The jurors proposed were examined by the triers, without any testimony being offered or produced, either by the prosecution or the defense. It is insisted, in behalf of the defendant, that the action of the court in permitting the trial in his absence of these challenges of jurors was so irregular as to vitiate all the subsequent proceedings. This point is well taken. The Criminal Code of Utah does not authorize the trial by triers of grounds of challenges to be had apart from the court, and in the absence of the defendant. The specific provision made for the ex- amination of witnesses "on either side," subject to the rules of evi- dence applicable to the trial of other issues, shows that the prosecuting attorney and the defendant were entitled of right to be present during the examination by the triers. It certainly was not contemplated that witnesses should be sent or brought before the triers without the party producing them having the privilege, under the supervision of the court, of propounding such questions as would elicit the necessary facts, or without an opportunity to the opposite side for cross-examination. Ch. 11) PRESENCE OF THE DEFENDANT AT THE TRIAL 141 These views find some support in the further provision making- it the duty of the court "when the evidence is concluded," and before the triers make a finding, to instruct them as to their duties. In the case before us the instructions to the triers were given before the latter pro- ceeded with the trial of the challenges. But all doubt upon the sub- ject is removed by the express requirement, not that the defendant may, but, where the indictment is for a felony, must be, "personally present at the trial." The argument in behalf of the government is that the trial of the in- dictment began after, and not before, the jury was sworn; conse- quently that the defendant's personal presence was not required at an earlier stage of the proceedings. Some warrant, it is supposed by coun- sel, is found for this position in decisions construing particular statutes in which the word "trial" is used. Without stopping to distinguish those cases from the one before us, or to examine the grounds upon which they are placed, it is sufficient to say that the pufpose of the foregoing provisions of the Utah Criminal Code is, in prosecutions for felonies, to prevent any steps being taken in the absence of the accused, and after the case is called for trial, which involves his sub- stantial rights. The requirement is not that he must be personally present at the trial by the jury, but "at the trial." The Code, we have seen, prescribes grounds for challenge by either party of jurors pro- posed. And provision is expressly made for the "trial" of such chal- lenges, some by the court, others by triers. The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, in- volved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins. But it is said that the right of the accused to be present before the triers was waived by his failure to object to their retirement from the courtroom, or to their trial of the several challenges in his absence. We are of opinion that it was not within the power of the accused or his counsel to dispense with statutory requirements as to his personal pres- ence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mis- taken view as well of the relations which the accused holds to the pub- lic as of the end of human punishment. The natural life, says Black- stone, "cannot legally be disposed of or destroyed by any individual, nei- ther by the person himself, nor by any other of his fellow creatures merely upon their own authority." 1 Bl. Comm. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except 142 PRESENCE OF THE DEFENDANT AT THE TRIAL (Ch. 11 in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dis- pensed with, or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atone- ment of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Comm. 11. Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the Legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony that he shall be personally present at the trial ; that is, at every stage of the trial when his substantial rights may be affected by the proceed- ings against him. If he be deprived of his life or liberty without be- ing so present, such deprivation would be without that due process of law required by the Constitution. For these reasons we are of opinion that it was error, which vitiated the verdict and judgment, to permit the trial of the challenges to take place in the absence of the accused. Judgment reversed.* ADAAIS V. STATE. (Supreme Court of Florida, 1S91. 28 Fla. 511, 10 South. lOG.) Mabry, J.'' William Adams, the plaintiff in error, Ike Spanish and T. P. Bethea, were jointly indicted on the 26th day of February, A. D. 1891, at a term of the circuit court for Columbia county, Fla., for the murder of James Moore. * * * The Dill of exceptions shows that an objection was made by the counsel for the accused to the competency of Ike Spanish as a witness for the state, and pending the discussion of this question before the court the jury was sent from the courtroom. The officers who had the custody of the defendant, Adams, through mistake took him also from the courtroom, and carried him to jail. Counsel for the defend- ant then proceeded to discuss before the court the competency of Ike Spanish as a witness, and had proceeded about 10 minutes with the discussion in the absence of the prisoner, when his presence was missed. The state's attorney called the attention of the court to the absence of the prisoner, and thereupon the court requested the counsel for defendant to suspend his argument, which he did, at the same time ■• The principle of this case has been applied in many jurisdictions to trials for felony. State v. Smith, 90 Mo. 37, 1 S. W. 7r)3, 59 Am. Rep. 4 (18S6); People v. Beauchamp. 49 Cal. 41 (1874). The weight of authority, however, allows the accused to waive his risiht to be present during; a trial for felonies not capital. State v. Kelly, 97 X. C. 404. 2 S. E. isr>, 2 Am. St, Rep. 299 (1887) ; Commonwealth v. ]MoCarthy, 1G3 Mass. 4.">8, 40 N. E. 760 (1895) ; Price v. State, 3G Miss. 531, 72 Am. Dec. 195 (1858). Of. L,yncli v. State, 88 Pa. 189, 32 Am. Kep. 445 (1878). Part of this case is omitted. Ch. 11) PRESENCE OF THE DEFENDANT AT THE TRIAL li'^ excepting to the removal of the prisoner from the courtroom without his consent, and of his being deprived of a right guarantied by the Con- stitution. On the return bf the prisoner to the courtroom the judge requested his attorney, in order to save any difficulty that might arise by reason of the inadvertence, to commence anew his argument, and that the court would hear his views and authorities anew. Defendant, by his counsel, declined to say anything further, but insisted that his objec- tion to taking the accused from the courtroom be noted. Without anv argument further, either from defendant or the state, the court decided that the witness was competent to testify against the accused. It was early decided in this state, and has been rigidly adhered to in later decisions, that the prisoner has the right to be and in fact must be present during the trial of a capital case, and no steps can be taken by the court in his absence. Holton v. State, 2 Fla. 476, 500 ; Gladden V. State, 12 Fla. 562 ; Irvin v. State, 19 Fla. 872. There is no doubt about the fact that the accused here was taken from the courtroom and remained out for at least 10 minutes during the discussion of the competency of a witness against him. He has the right to be present and to hear questions of law as well as ques- tions of fact discussed, and in fact no steps can be taken in the case in his absence. The court must see in capital cases that the accused is present before any proceedings are taken in the case. The fact that the court directed the argument to be gone over again could not pos- sibly restore the accused to the position of hearing what had already been said in his absence. * * * For the errors herein pointed out the judgment in this case must be reversed, and a new trial awarded.'* 6 In cases of felony it has been held that defendant must be present at the Impaneling of the jury (Dougherty v. Commonwealth, 69 Pa. 2S6 [1871]), the swearing and examination of witnesses (Bearden v. State, 44 Ark. 331 [1884]; State v. Moran, 46 Kan. 318, 26 Pac. 754 [18911). at the charge to the jury (Roberts v. State, 111 Ind. 340, 12 N. E. 500 [1887]), at the reception of the verdict (Summers v. State, 5 Tex. App. 365, 32 Am. Kep. 573 [1S79J), at the discharge of the jury for failure to agree (State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719 [1875]), and when sentence is given (French v. State, 85 Wis. 400, 55 N. W. 56G, 21 L. R. A. 402, 39 Am. St. Rep. 855 [1893]). On the necessity for the defendant's presence at a view of the premises, the authorities are not in accord. See People v. Thorn, 156 N. Y. 286, 50 N. E. 947. 42 L. R. A. 308 (1898) ; People v. Bush, 68 Cal. 623, 10 Pac. 169 (18S6). "While there is some conflict of authority upon the question, there is a great preponderance In favor of the proposition tbat, under such provisions, the absence of the accused at the hearing and decision of a motion for a change of venue, or continuance of the case, at the hearing and decision on motion in arrest of judgment, or at the hearing and decision of a demurrer to the indictment, will not vitiate the judgment in a case of felony; that it is not essential that the accused should be present at the filing and trial of motions and pleas not involving the question of guilt or innocence on the merits." Baskin, J., in State v. Woulsey, 19 Utah, 491, 57 Pac 428 (1899). 144 VERDICT (Ch. 12 CHAPTER XII VERDICT If they [the Jurors] cannot all agree in one mind, let them be sepa- rated and examined why they cannot agree; and if the greater part of them know the truth and the other part do not, judgment shall be according to the opinion of the greater part. Britton (Nichols) lib. 1, 12b. ANONYMOUS. (Court of Common Bench, 13G7. Lib. Ass. 2o3, pi. 11.) In another Assize before the same Justices at Northampton the Assize was sworn, and they were all agreed except one who would not agree with the eleven; and then they were remanded, and remained there all that day and the next without drink or food. And then it was demanded of him by the Justices if he would agree with his com- panions. He said never. That he would die first in prison. And upon this a day was given on the same verdict in the Common Bench. Kirk prayed judgment on the verdict. Thorp said they were all in accord that this was not a proper verdict taken of eleven, no verdict could be taken of eleven. Nevertheless Kirk showed how Wilby in trespass took the verdict of eleven and sent the twelfth to prison, and the attaint was sued against the eleven. And also W. Thorp in an assize in the twentieth year of the present King took the verdict of twelve (sic). Thorp. This is not a precedent for us, for he was greatly reproved for that. And afterward by assent of all the Justices it was agreed that this was not a proper verdict. Wherefore it was de- cided that this panel should be quashed and annulled and that he who was in prison should be released and that the plaintiff should sue out a new venire to summon the Assize.^ 1 "The parties to the liti?jation have 'put themselves' upon a certain test. That test is the voice of the country. Just as a coriioration ■can have but one will, so a country 'can have hut one voice — 'le pays vint e dyt' In a later ase this communal principle might have led to the acceptance of the major- ity's verdict. But as yet men had not accepted the dogma that the voice of a majority binds the community. In communal affairs they demanded unanim- ity ; but minorities were expected to give way. Then at this point the 'quasi judicial' position of the jurors becomes important No doubt it would be wrong for a man to acquiesce in a verdict that he knew to be false; .but in the common case — and it becomes commoner daily — many of the jurors renlly have no first-hand knowledge of the facts about which they speak, and there is no harm in a juror's joining in a verdict which expresses the belief of those of his fellows who do know sometliing. Thus a professed unanimity ia^, Ch. 12) VERDICT 145 When the jury have come to a unanimous determination with respect to their verdict, they return to the box to dehver it. The clerk then calls them over by their names, and asks them whether they are agreed on their verdict, to which they reply in the affirmative. He then demands who shall say for them, to which they answer, their foreman. This being done, he desires the prisoner to hold up his hand, and addresses them : "Look upon the prisoner, you that are sworn. How say you, is he guilty of the felony (or treason, etc.) whereof he stands indicted, or not guilty?" H they say, "Guilty," then he asks them, "What lands or tenements, goods or chattels the prisoner had at the time of the felony committed, or at any time since?" to which they commonly reply, "None to our knowledge." If they say, "Not guilty," then the clerk asks them "whether he did fly for it or not." They commonly answer, "not to our knowledge," but, if they find a flight, it is recorded. The oflicer then writes the word "guilty" or "not guilty," as the verdict is, after the words "po. se." on the record ; and again addresses the jury: "Hearken to your verdict as the court hath recorded it. You say that A. B. is guilty (or not guilty) of the felony whereof he stands indicted, and that he hath no goods or chattels, and so you say all." * * * The verdict thus given is either general to the whole of the charge, partial as to a part of it, or special, where the facts of the case alone are found, and the legal inference is referred to the judges. 1 Chitty, Criminal Law, 635. REX V. LEGINGHAM. (Court of King's Bench, 1670. 2 Keb. 687.) Stroud on 1 Inst. 227, b, prayed to set aside a privy verdict on infor- fnation for unreasonable distress, sed non allocatur, for unless in cases of Felony, where the Party must be present at the delivery, it may be private, and so hath been the constant practice of forty years, as well where the King alone is Party, as in Actions qui tarn; but the Court conceived that no information lieth for this offense, unless it be said as common Oppressor or Barretor; also privy verdict may be out of the County well enough. But adjornatur. as our .rolls shov7, very easily produced. Nor must It escape us that the justices are purisuing a course which puts the verdict of the country on a level with the older modes of proof. If a man came clean from the ordeal or suc- cessfully made his law, the due proof would have been given; no one could have questioned the dictum of Omniscience. The veredictum patriae Is assim- ilated to the judicium Dei. English judges find that a requirement of unanim- ity is the line of least resistance ; it spares them so much trouble," 2 Pollock & Maitland, History of English Law, p. 624. Mik.Cr.Pe.(Abridged Ed.) — 10 liQ VERDICT (Ch. 12 COMMONWEALTH v. GIBSON. (Geueral Court of Virginia, 1S17. 2 Va. Cas. 70.) The prisoner was convicted of murder in the second degree, and five years fixed on as the term of his imprisonment. When brought up to receive his sentence, he moved the court to set aside the pre- tended verdict alleged to be rendered against him, because the said pre- tended verdict is not the verdict of the jury sworn to try the prisoner, one of the jurors being absent from the rest, and out of the presence of the court at the time the said pretended verdict was received in the court, and at the time the jurors were discharged by the court, which was not known to the said prisoner, or his counsel, at the time of the rendition and reception of the said pretended verdict. He also moved the court to set aside the verdict (this ought to have been a motion to arrest the judgment), for that "he ought not by the laws of the land to be convicted of murder on the said indictment, the same being by law insufficient to charge him with the said crime." In support of his first proposition, he introduced Charles Woodson, one of the jurors, who, being sworn, said that he came into court with the rest of the jurors, after having agreed to a verdict against the prisoner, which was subscribed by Oglesby Scruggs, and that he remained in court until the jurors' names were all called over, and severally answered to, and, the clerk asking if the jury had agreed, it was answered they had, and the jury directed to look upon the prisoner, and, being asked if the prisoner was guilty or not, it was answered guilty, and the ver- dict delivered to the clerk, and the same that had been agreed to in the jury room, read aloud in open court; that being sick, and at this moment likely to faint, he requested one of the deputy sheriffs who was standing near him, in the rear of the jury, to attend him, and stepped into the jury room, where he laid down, and, there remained until the jury were discharged ; that he was not present in court at the discharge. Nor was he present when any alteration in the phraseology of the verdict was made in court, nor at any time after he had an- swered to his name, and heard the verdict which had been by the jury agreed on, in their room, read by the clerk as already stated. * * * The evidence introduced by the prosecution satisfied the court that after the jury came into court, with their verdict written on the indictment and subscribed by one of their body, they were called over and answered severally to their names, declaring that they had agreed in a verdict, and, being told to look on the prisoner, they said he was guilty; the verdict was then delivered to the clerk, and by him read aloud in open court; the jury were not then immediately dis- charged by order of court, but some alteration in the terms of the verdict being suggested by the prosecutor, so as to make it read "public jail and penitentiary house," instead of "penitentiary,"^ the clerk was ordered to make it in the presence of the court and jury. At this time it was not known that one of the jury had withdrawn Ch. 12) VERDICT 147 The clerk, to effect the alteration, wrote a verdict at large on the same indictment, in these words: "We of the jury find the prisoner guilty of murder in the second degree, and ascertain the term of his confine- ment in the public jail and penitentiary house to be five years," which was subscribed by William Watson, another of the jurors, and read aloud in open court, assented to by the jurors present, and the whole, being supposed to be present, were then discharged. The clerk ran his pen across the verdict deliveredi in by the jury in the first instance, without being directed so to do, that he might know which to regard in making up the record, and that the verdict which was at first de- livered into court, and read as above stated, being the verdict agreed by the whole jury, is in these words: "We of the jury being impaneled for the purpose of trying Levi Gibson for the murder of his brother, Francis Gibson, are of opinion that the said Levi Gibson is guilty of murder in the second degree, and that he, the said Levi Gibson, be confined in the penitentiary for the term of five years." Signed: "Oglesby Scruggs." On this statement and evidence, the superior court adjourned to this court the following questions : (1) Can this court disregard the verdict which was written in court as above stated, and refer to the verdict which was first delivered by the jury into court, as above stated, as an existing verdict of the jury in the terms in which it is written? If so, (2) is this verdict suffi- cient to authorize this court to give judgment against the prisoner that he be confined in the "public jail and penitentiary house?" * * * 2 The following is the judgment of The Court: This court is of opinion, and doth decide, that the verdict which was written in court is a nullity, because it was only agreed to by eleven jurors, the twelfth juror having retired from the court before it was written and received, and that, therefore, the superior court ought to disregard the said verdict; .and the court is further of opinion that, in a case of felony, after the verdict is rendered by the jury, and read in open court, it is the duty of the clerk to direct the jury to hearken to their verdict as the court has recorded it, and then to repeat the verdict to them, and either to poll them, or to say to them, "And so say you all," or words to that effect, in which latter case, if none of the jury express their dissent, the verdict ought to stand as recorded, and that until the assent of the jury is expressed in one of these xyays the jury has a right to retract; and until after the assent of the jury is expressed as aforesaid, the verdict is not perfected ; that the first verdict rendered in this case was imperfect in these particulars, and therefore no judgment can be rendered on it. * * * This court is further of opinion that, the verdict being imperfect, it ought to be set aside, and a venire facias de novo awarded, and a new trial had of the prisoner, either on this indictment, as an indictment for manslaughter, or on a new indictment for murder, which is or- dered to be certified, etc. » Part of this case is omitted. L48 VERDICT (Ch. 12 STATE V. DAWKINS et at. (Supreme Court of South Carolina, ISOO. 32 S. C. 17, 10 S. E. 772.) McIvER, J,8 * * * fYiQ ninth and tenth grounds of appeal question the legality of the course pursued in the court below after the verdict had been rendered, and the jury discharged from the case, by reimpaneling them the next day, for the purpose of giving them in- structions, inadvertently omitted before, as to their power to recom- mend to mercy, and the effect of such recommendation. We do not know of any authority for such a proceeding, and none has been cited. While we have no doubt whatever that the course pursued in this in- stance was prompted by the best motives, and was really designed to give the defendants the benefit of a merciful provision of the law, yet we feel bound to regard it as a dangerous innovation, upon well- settled legal principles, and one which is not sanctioned by any law. After a jury have rendered their verdict, andl have been discharged, we know of no authority by which they can be reimpaneled, and, un- der further instructions, be called upon to render a new and different verdict. Such a power, once recognized, even in a case like this, where its exercise was doubtless intended in favor of liberty, would afford a precedent which might lead to the most dangerous consequences. But. without pursuing this line of remark, it is quite sufficient for us to say that it is without authority of law. We must therefore regard the second so-called "verdict" as an absolute nullity, and the judgment, which we must assume was rendered upon it, as without legal founda- tion, and should for that reason be set aside. It may be said, however, that the first and only real verdict in the case would be sufficient to support the judgment. But it must be re- membered that by the express terms of the statute (Gen. St. § 2481) the only judgment which would be legally rendered on that verdict would be imprisonment in the penitentiary with hard labor for life, and any other judgment would be erroneous and illegal; and, if so, then our plain duty is to reverse it. Now, while the nature of the judgment rendered in this case does not distinctly appear in the rec- ord, yet we are bound to infer from what does there appear that the judgment actually rendered was erroneous and illegal; for the act of 1883, amending the section of the General Statutes above re- ferred to, expressly declares that where a person is convicted of bur- glary at common law, and is recommended to the mercy of the court ^ by the jury, the punishment shall be reduced from that prescribed by lliat section of the General Statutes prior to the amendment. And as the manifest object of the circuit judge, in reimpaneling the jury, was to give these defendants the benefit of the reduction provifted for, we are forced to the conclusion that the judgment rendered was based upon the second so-called "verdict." « Part of this case Is omitted. Ch. 12) VERDICT 144) ; People T. Walker (Cal.) (Jl Tac. 800 (1900). Of. State v. Morgan, 33 Md. 44 (1870). Ch. IG) APPEAL, WRIT OF ERROR, AND CERTIORARI 181 tence been pronounced. But the legal sentence has not been pro- nounced, and we have no power to pronounce it. If the plaintiff in error succeeds, he relieves himself from an un- lawful sentence, and does not thereby ipso facto subject himself to the lawful penalty. Whether he thereby puts himself in the way of being subjected to the lawful penalty upon further proceedings we have no occasion to decide. We think, therefore, that the judgment, so far as the fine is concerned, must be reversed. A question then arises what effect has such reversal upon the other parts of the judgment. The statute provides that the court before whom the conviction is had shall order the defendant to remove such nuisance within 30 days. This order was made, and a further order that the defendant pay a bill of costs. The case of Matter of Sweat- man, 1 Cow. (N. Y.) 144, is full to the point that a judgment may be erroneous in part, and valid as to the residue. That case was well considered and elaborately discussed, and is cited by us with appro- bation in the recent case of State v. James, 37 Conn. 355. The judg- ment there was a full and complete judgment according to law, with the addition of something not warranted by law, and the maxim, "Utile per inutile non vitiatur," was applicable, and applied to the case. But the argument here for the plaintiff in error is that, the sentence to pay the fine being illegal and reversed, the judgment which re- mains is not a full and complete judgment, and ought for that cause to be set aside. But it is difficult to see how the plaintiff in error can be aggrieved by this imperfection, unless, indeed, it be so imperfect as for that cause to be invalid. If the statute was such that the court were prohibited from rendering the judgment to remove the nuisance and pay the cost, without also imposing a fine, then indeed, perhaps the plaintiff in error might be aggrieved, but the statute makes no such prohibition. On the contrary, the statute expressly requires the court to order the removal of the nuisance. This order the court below made, and we cannot say the order is erroneous, merely be- cause the court failed to do its duty in respect to the fine. The case of Ailing V. Shelton, is full to this point. The judgment, therefore, of the superior court is reversed as to the fine, but in all respects except as to the fine it is affirmed. In this opinion the other Judges concurred.' «A(Tor(lt Fftnte v. Kennedy, 88 Mo. 341 (1885); Montgomery v. Stnte. 7 Ohio St. 107 (1857). Where two persons are jointly indirted. the court may. on writ of error, affirm the .indgraent as to one defendant and reverse as to the other. Fletcher v. People, 52 111. 305 (1869). "The Attorney General admits that through inadvertence a sentence was Imposed on the prisoner, which the law does not authorize, and concedes, upon the authority of Watliins v. State, 14 Md. 412, this judgment must be reversed. That is undoubtedly so, and the only other question we can now decide is whether upon such reversal this court has the power to Impose the proper sentence, or to remand the case to the court of original 182 APPEAL, WRIT OF ERROR, AND CERTIORARI (Ch. IG JOAN V. COMMONWEALTH. (Supreme Judicial Court of Massachusetts, Bristol, 1SS3. 136 Mass. 1G2.) By the Court.* The assignments of error aver that the building which the plaintiff in error was convicted of burning was not a dwell- ing house, as alleged in the indictment, and that it was not the prop- erty of the person alleged in the indictment to be the owner. Both of these facts were put in issue and were tried in the superior court. The plaintiff in error cannot retry them upon a writ of error. No error in the judgment is shown, and the evidence offered was properly re- jected. Exceptions overruled. HORNBERGER v. STATE. (Supreme Court of Indiana, 1S34. 5 Ind. 300.) Appeal from the Dearborn court of common pleas. Stuart, J. Information against Hornberger for retailing, etc. Tri- al by the court, fine $10, and judgment accordingly. Hornberger appeals; but on what grounds does not very clearly appear. jurisdiction for that purpose. In the absence of legislation conferring that authority upon this court, it is clear it has no power to do either of these things. In Watkius v. State, where the judgment was reversed for a sim- ilar defect, the court say: 'The effect of the reversal for error in the judg- ment itself is properly stated by the counsel for the plaintiff in error in his argument. It defeats all former proceedings in the cause. This will abun- dantly appear by reference to the following authorities cited by him on this point: 1 Chitty's Cr. Law, 755; 4 Bl. Com. 393; Hawkins, Bk. 2, c. 50, § 19.' In addition to these authorities we refer to several more recent deci- sions of the English and Irish courts upon the subject, viz.. Rex v. Ellis, 5 Barn. & C. 395, King v. Bourne, 7 Adol. & E. 5S, Silversides v. The Queen, 2 Gale & D. 617. and Holland v. The Queen, 2 Jebb & S. 357. In each of these, and especially in the first two, it was, upon full review of all pre- vious decisions, denied that a court of error had any power, in a case like this, either to remand the record to the court below for the proper judg- ment, or itself to pronounce such judgment as the law authorized, and Rex V. Kenwortfiy. 1 Barn. & C. 711, which was cited in support of the power to remand, is there shown to be a case in which no judgment had in fact been given, and it was therefore remitted back to the sessions in order that a judgment might be rendered." Miller, J., in McDonald v. State, 45 Md. 90 (1876). * Part of this case is omitted. "It is only legal errors which can be considered on writs of error — errors appearing in the record, or by exceptions taken upon the trial. * * * In People v. Thompson, 41 N. Y. 1, the prisoner was convicted of manslniighter In the second degree, and, although it appeared by the evidence that the prisoner was not guilty of that offense, the court held that, as there was no exception, it could not reverse the judgment." Andrews, J., in Gaffuey v. People, no N. Y. 425 (1872). Accord: CTaasseu v. U. S.. 142 U. S. 140, 12 Sup. Ct 1G9, 35 L. Ed. 9b6 ISUl). Ch. 16) APPEAL, WRIT OF ERROR, AND CERTIORARI 1S3 There was no exception taken to any ruling of the court in the prog^ress of the trial. 2 Rev. St. 377. No motion was made for a new trial, nor in arrest of judgment. 2 Rev. St. 380. There is none of the evidence in the record ; nor does it appear that he even interposed a motion to quash the information. 2 Rev. St. 368. At the common law there were some defects which might be taken advantage of, either by motion to quash, or by motion in arrest, or upon error. But now the writ of error is abolished. 2 Rev. St. 158 ; Id. 381. The motion to quash, motion for a new trial, and motion in arrest of judgment yet remain, curtailed and modified by statute. 2 Rev. St., supra. In their very nature, each of these motions, with their several incidents, are to be addressed to the court below. But the statute does not leave this matter in doubt. It is minutely provided when, how, and in what order they are to be made. 2 Rev. St., supra. If any ruling of the court in the premises is deemed incorrect, the stat- ute further points out the time and mode of exception and appeal. 2 Rev. St. 377, 381. These are the established modes of raising points in the record for the consideration of this court. A bare appeal cannot of itself avail the party taking it, unless the preliminary steps to raise questions in the record have been adopted. It is not the errors pomted out in ar- gument that we are to review. Nor, in general, even the errors ap- parent in the record. But it is the errors to which the aggrieved party has excepted at the time, in the manner pointed out in the foregoing statutes. Whether there may not be some exceptions to this rule is not now before us to inquire, and no opinion is intimated. It is sufficient in this case that Hornberger does not appear as ob- jecting to anything. There is consequently nothing presented in the record for us to review. We are bound to presume that all things were done correctly in the common pleas, unless the contrary is made to appear. The whole spirit of the new Code is to hold every failure to as- sert a legal right at the proper time to be a waiver of that right. It gives still greater consequence to the legal maxim that "the law favors the vigilant." To this end it is specific as to the objections available in criminal cases ; and it is specific as to when, where, and in what manner they should be made. The object seems to have been that cases should not be reversed in this court on questions never raised or agitated in the court below. If, therefore, parties would have decisions made against them re- versed, they must take the proper steps, at the proper time ; and the record must show that fact. 2 Rev. St. 377, 380. It is too late to raise such questions for the first time in this court, by way of argu- ment. J 84 APPEAL, WRIT OP ERROR, AND CERTIORARI (Ch. 16 This doctrine does not conflict with Divine v. State, 4 Ind. 240; for there the defendant interposed a motion to quash. Nor does it conflict with Hare v. State, 4 Ind. 241 ; for there the defective allegation was aided by the evidence. Nor does it conflict with Wood v. State (at the present term) 5 Ind. 433 ; for that case is governed by the law in force prior to the taking eflfect of the Revised Statutes. There being no question raised in the record, and nothing for us to decide, the judgment of the common pleas must stand. Per Curiam. The judgment is affirmed, with costs. ^ UNITED STATES v. SANGES et al. (Supreme Court of the United States, 1892. 144 U. S. 310, 12 Sup. Ct 609, 86 L. Ed. 445.) In Error to the Circuit Court of the United States for the North- ern District of Georgia. Indictment of George Sanges, Dennis Alexander, Isaac Smith, and Charles Porter for murder. * * * The defendants demurred to the indictment. * * * On October 5, 1891, the Circuit Court, held by Mr. Justice Lamar and Judge Newman, adjudged that the demurrer was well founded in law, and that it be sustained, and the indictment quashed. 48 Fed. 78. This writ of error was thereupon sued out by the United States, and was allowed by the presiding justice. The defendants in error moved to dismiss the writ of error for want of jurisdiction. Mr. Justice Gray, delivered the opinion of the court. ^ The juris- diction of this court is invoked by the United States under that provi- sion of the judiciary act of 1891 by which "appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court," "in any case that involves the construction or application of the Constitution of the United States." Act March 3, 1891, c. 517, § 5, 26 Stat. p. 827 (U. S. Comp. St. 1901, p. 549). But the question which lies at the very threshold is whether this provision has conferred upon the United States the right to sue out a writ of error in any criminal case. This statute, like all acts of Congress, and even the Constitution it- self, is to be read in the light of the common law, from which our sys- tem of jurisprudence is derived. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 515, 9 L. Ed. 773; Rice v. Railroad Co., 1 Black, B Accord: State v. Lawrence, 81 N. C. 522 (1870). « Part of the opinion is omitted. Ch. 16) APPEAL, WRIT OF ERROR, AND CERTIORARI 185 358 374 375, 17 L. Ed. 147; U. S. v. Carll. 105 U. S. 611. 26 L. Ed. 1135 ; Ex parte Wilson, 114 U. S. 417, 422. 5 Sup. Ct. 935, 29 L. Ed. 89 ; 1 Kent, Comm. 336. As aids, therefore, in its interpretation, we naturally turn to the decisions in England and in the several states of the Union, whose laws have the same source. The law of England on this matter is not wholly free from doubt. But the theory that at common law the king could have a writ of er- ror in a criminal case after judgment for the defendant has little sup- port beyond sayings of Lord Coke and Lord Hale, seeming to imply, but by no means affirming, it, two attempts in the House of Lords, near the end of the seventeenth century, to reverse a reversal of an attainder, and an Irish case and two or three English cases, decided more than 60 years after the Declaration of Independence, in none of which does the question of the right of the crown in this respect ap- pear to have been suggested by counsel or considered by the court. 3 Inst. 214; 2 Hale, P. C. 247, 248, 394, 395; Rex v. Walcott, Show. Pari. Cas. 127 ; Rex v. Tucker, Show. Pari. Cas. 186, 1 Ld. Raym. 1 ; Regina v. Houston (1841) 2 Craw. & D. 191 ; The Queen v. Millis (1843) 10 Clark & F. 534; The Queen v. Wilson (1844) 6 Q. B. 620; The Queen v. Chadwick (1847) 11 Q. B. 173, 205. And from the time of Lord Hale to that of Chadwick's Case, just cited, the text-books, with hardly an exception, either assume or assert that the defendant (or his representative) is the only party who can have either a new trial or a writ of error in a criminal case, and that a judgment in his favor is final and conclusive. See 2 Hawk. P. C. c. 47, § 12 ; Id. c. 50, § 10 et seq. ; Bac. Abr. "Trial," L, 9, "Error," B ; 1 Chit. Crim. Law, 657, 747; Starkie, Crim. PI. (2d Ed.) 357, 367, 371; Archb. Crim. PI. (12th Eng. and 6th Am. Ed.) 177, 199. But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law. In a few states decisions denying a writ of error to the state after judgment for the defendant on a verdict of acquittal have proceeded upon the ground that to grant it would be to put him twice in jeopardy ,^ in violation of a constitutional provision. See State v. Anderson (1844) 3 Smedes & M. (Miss.) 751; State v. Hand (1845) 6 Ark. 169, 42 Am. Dec. 689; State v. Burris (1848) 3 Tex. 118; People v. Webb (1869) 38 Cal. 467 ; People v. Swift (1886) 59 Mich. 529, 541, 26 N. W. 694. But the courts of many states, including some of great authority, have denied, upon broader grounds, the right of the state to bring a 186 APPEAL, WRIT OF ERHOR, AND CERTIORARI (Ch. 16 writ of error in any criminal case whatever, even when the discharg-e of the defendant was upon the decision of an issue of law by the court, as on demurrer to the indictment, motion to quash, special verdict, or motion in arrest of judgment. The Supreme Court of Iowa, in 1856, ordered a writ of error sued out by the state, after the defendant had been acquitted by a jury, to be dismissed, not because to order a new trial would be against article 1, § 12, of the Constitution of the state, declaring that "no person shall after acquittal be tried for the same offense" (for the court expressly waived a decision of that question), but only because of "there being no law to authorize a writ of error on the part of the state in a criminal case." State v. Johnson, 3 Iowa, 549. The Supreme Court of Wisconsin, in 1864, held that a writ of error did not lie in behalf of the state to reverse a judgment in favor of the defendant upon a demurrer to his plea to an indictment. State v. Kemp, 17 Wis. 669. The Supreme Court of Missouri, in 1877, made a similar decision, overruling earlier cases in the same court. State v. Copeland, 65 Mo. 497. And the Supreme Court of Florida, in 1881, held that the state was not entitled to a writ of error to reverse a judg- ment quashing an indictment, and discharging the accused. State v. Burns, 18 Fla. 185. In those states in which the government in the absence of any statute expressly giving it the right, has been allowed to bring error, or appeal in the nature of error, after judgment for the defendant on demurrer to the indictment, motion to quash, special verdict, or motion in arrest of judgment, the question appears to have become settled by early practice before it was contested. * * * In many of the states, indeed, including some of those above men- tioned, the right to sue out a writ of error, or to take an appeal in the nature of a writ of error, in criminal cases, has been given to the state by positive statute. But the decisions above cited conclusively show that under the common law, as generally understood and administered in the United States, and in the absence of any statute expressly giving the right to the state, a writ of error cannot be sued out in a criminal case after a final judgment in favor of the defendant, whether that judgment has been rendered upon a verdict of acquittal, or upon a determination by the court of an issue of law. In either case, the de- fendant, having been once put upon his trial and discharged by the court, is not to be again vexed for the same cause, unless the legis- lature, acting within its constitutional authority, has made express provision for a review of the judgment at the instance of the govern- ment. [The court here discussed the acts of Congress and continued:] In none of the provisions of this act,^ defining the appellate juris- T Judiciary Act March 3, 1891, c. 517, 2G Stat. 826 (U. S. Comp. St. 1901, p. 547). Ch. 16) APPEAL, WRIT OF ERROR, AND CERTIORARI 187 diction, either of this court or of the Circuit Court of Appeals, is there any indication of an intention to confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of the defendant. It is impossible to presume an intention on the part of Congress to make so serious and far-reaching an innova- tion in the criminal jurisprudence of the United States. Writ of error dismissed for want of jurisdiction. INDEX [the fiqukes befeb to paqes] ABATEMENT, matters pleadable in. Carver, 168. ACCESSARY how charged in indictment. Hatchett, 106 ; 107 n. ; Thompson, 108. ADDITION, necessity for in indictment. McDowell, 99. omission to state, when cured. 100 n. statute of. McDowell, 99; 100 n. ALLOCUTION, necessity for. McCue, 172. AMENDMENT, of indictment. Odington, 112 ; Anon., 113j Anon., 113 ; Rodley, 114. of information. Wilkes, 113 n. of sentence. Catterall, 173. APPEAL, as a method of prosecution. Hale, IS. as a means of review. Hornberger, 182. APPEARANCE, see Presence. ARRAIGNMENT, what is. Hale, 116. waiver of. Hacli, 117. ARREST, definition of. Dalton, 22. what constitutes. Russen, 22; Nugent, 23; Grosse, 22 n. right of private person to arrest. Bracton, 24 ; Carey, 24 ; Holley, 24 n. ; Taylor, 27; Rice, 32. formalities in making. Carey, 24 ; Taylor, 27 ; Mackalley, 29 ; Rice, 32. when warrant necessary. Carey, 24; Taylor, 27. what warrant must show. West, 35 n. ; Brady, 3-5 n. who may execute warrant of. Keeper, 25 n. ; Rice, 32. of fugitive in another jurisdiction. Keeper, 25 n. ; Taylor, 27. when magistrate may. Windham, 45; Blodgett, 45; Kimberley, 49. time of making. Mackalley, 29; Anon., 31; Anon., 32. overcoming resistance to. Rice, 32. treatment of person under. Thatcher, 36 n. ; Scavage, 47. of judgment. causes for, In general. Carver, 168. pregnancy as cause for. Arden, 166. insanity as cause for. Vann, 167; Brinyea, 168 n. defect in composition of grand jury as cause for. Carver, 168. defect in indictment as cause for. Carver, 168. failure to plead, as cause for. Lacefleld, 170. defect in verdict, as cause for. Lohmdn, 171. when motion in, must be made. Carver, 168. AUTREFOIS ACQUIT, see Jeopardy. AUTREFOIS CONVICT, see Jeopardy. Mik.Cb.Pb.(Abeidged Ed.) (189) 190 INDEX [The figures refer to pages] BAIL, effect of verdict of inquest on right to. Pepper, 48. what offenses are bailable. Judd, 48. illness as reason for. Wyndham, 49. when offense committed in foreign jurisdiction. Kimberley, 49. extent of undertaking of surety. Kidpath, 50 ; 51 n. ; Gresham, 51 n, ; Devine, 51 n. BENEFIT OF CLERGY, allowance of. Sutcliffe, 166. CERTIORARI, when available. Inhabitants, 179; Long, 179. CONVICTION, of lesser offense. Hunter, 151. of different offense. Green, 152. of joint defendants. Klein, 153; Turner, 154. COUNSEL, assignment of. Fitzharris, 117. COUNTS, charging crime in several. Chitty, 110. effect of defective counts on verdict. Faderman, 120. CUSTODY, of defendant between conviction and sentence. Chitty, 172. DEMURRER, effect of overruling. Hume, 71; Faderman, 120. DISCONTINUANCE, right of accused to object to. Smith, 122. DISJUNCTIVE AVERMENTS, in indictment. 68 n. DUPLICITY, what constitutes. Smith, 68; Twitchell, 69; Sprouse, 69; Holmes, 69 n. ELECTION, putting prosecutor to. Davis, 124. ERROR, effect of, in judgment. McDonald, 181 n. writ of. when available. Inhabitants, 179; Long, 179; Taff, ISO. what considered on. Joan, 182; Gaffney, 182 n. right of state to. Sanges, 184. coram nobis. EVIDENCE, before grand jury. 53 n. ; 54 n. EXECUTION, pregnancy as cause for stay of. 167 n. EXTRADITION, between a state and a foreign country. Holmes, 40 n. in the United States. Dennison, 37 ; Mohr, 40 ; Roberts, 44 n. ; Omelas, 44 n. HABEAS CORPUS. function of writ Mohr, 40; Burden, 175. IDEM SONANS, in name. Foster, 99; Davis, 99 n. INDICTMENT, nature of. lilaclcstone, 16. necessity for. Anderson, IS; 20 n. INDEX 191 [The figures refer to pages] INDICTMENT— Continued, caption of. nature of. Hale, 57; Stone, 58 n. ; Bennett, 58. form of. Bennett, 58. necessity for. Marion, 58 n. ; Wasden, 58 n.; Goodloe, 58 n. amendment of. Stone, 58 n. commencement of. form of. Bennett, 58; Hale, 60; Archbold, 61. conclusion of. form of. Hale. 60; Haickins, 61; Clerk, GG; Anon., 67; Anon., 67: Anon., 67. as aid to imperfect allegations in. Keerl, 79. language of. Hale, 59 ; 59 n. ; Gilbert, 65. use of abbreviations in. Hale, 59. use of figures in. GO n. requisites of. In general. Hale, 59. requisites of, for homicide. in general. Hale, 82 n. description of wound. Conley, 80; Haydon, 83 n. averment of death as result of wound. Keerl, 79. averment of cause of wounds. Conley, SO. requisites of, for attempt Doran, 89. necessity for certainty in. Hale, 59; Borrough, 66; Robe, 66; Smith, 68; Anon., 90. necessity that averments be positive. Whitehead, 65. averment of facts necessary to constitute crime. Stride. 77; Keerl, 79; Conley, SO; Pearce, 83; Haddonfield, 84; Harman, 85; Hersey, 85; Trigg, 87. when crime is one of omission. Haddonfield, 84. averment of place of offense. Hume, 71; Anon., 90; 94 n. ; Auburn, 92. repetition of. Kennedy, 93. averment of time of offense. Dandy, 73 ; 95 n. ; Anon., 90 ; Jilason, 91 ; Mollett, 91; Beaton, 92; Auburn, 92; Eawson, 93 n. repetition of. Kennedy, 93. description of persons in, see Name, description of property in, see Property, necessity for alleging intent. Hersey, 85. necessity for alleging malice. 88 n. necessity for alleging falsity. 88 n. necessity for alleging act unlawful. Hodges, 87. use of words of art in. 78 n. ; Hodges, 87. surplusage in. Morris, 73; Fulford, 74; Edwards, 64; Buckley, 97. alleging facts as unknown. , 95. charging in words of statute. Doran, 89. effect on, of misspelling. Hale, 60; Evans, 62; Colly, 63; 63 n.; Fos- ter, 99. effect on, of mistake in averment of facts. Evans, 62. effect on, of omissions in. Edwards, 64. supplying omissions in. Auburn, 92. effect on, of disqualification of grand juror. Seaborn, 54. effect on, of irregularity in proceedings of grand jury. Russell, 53; 54 n. defects In, how objected to. Carver, 168. right of accused to copy of. I^tzharris, 117. reading, to accused. 117 n. joinder in, see Joinder, amendment of, see Amendment. INFORMATION, nature of. Blackstonc, 16; Kelm, 20. who should file. Kelm, 20; 21 n. restrictions on prosecution by. Anderson, 18 ; 21 n. 192 INDEX [The figures refer to pages] INITIALS, see Name.. INSANITY, procedure on plea of, after verdict. Vann, 167. as cause for arrest of judgment. Vann, 167. JEOPARDY, FORMER, when, attaches. Britton, 125; Staunford, 125; Jones, 127; Hale, 127 n.; Kinloch, 127 n. ; Benham, 128. Identity of offense. Staunford, 125; Jones, 127; Benham, 128; Champ- ney, 132; Roberts, 133; Rosenbaum, 135; Morey, 136. proof of. Anon., 128 ; Lambard, 128 n. ; Champney, 132. whether, on prosecution in a foreign jurisdiction. Hutchinson. 126 126 n. whether, on prosecution by court-martial. 126 n. whethei*, when error in process. Fitzheriert, 126. misconduct of prisoner as affecting. Jane, 127; Hale, 127 n. illness of juror as affecting. 128 n. JOINDER, of defendants. ' for nonrepair of road. Anon., 103. for perjury. Phillips, 109. for blasphemy. Tawny, 109. for riot. Sudbury, 110. of offenses. when allowed. Young, 110; Henwood, 112 n. JUDGMENT, requisites of. Dawkins, 148. responsiveness of, to verdict. Kidd, 174. suspension of. Fults, 177. effect of reversal of. Taff, 180; McDonald, 382. effect of, on void verdict. Dawkins, 330. / power of appellate court to pronounce. McDonald, 181 n. what, on overruling demurrer. Faderman, 120. JURISDICTION, of crime committed In foreign state. Coke, 1. of crime committed on high sea. Coke, 1, 1 n. of acts done in one state taking effect in another. Simpson, 2. of federal and state courts. 4 n. JURY, GRAND, how constituted. Blackstone, 52; Seaborn, 54. mode of selection. Blackstone, 52. qualifications for. Blackstone, 52. function of. Blackstone, 52. misconduct of. Anon., 53. right of member of, to testify as to evidence before. 53 n. finding true bill by, without evidence. Russell, 53. objection to, when to be taken. Seaborn, 54; Carver, 168. LIMITATION, STATUTE OF, MISNOMER, effect of. Buckley, 47. how taken advantage of. 98 n. whether cured by verdict. 98 n. plea of, see Plea. MAGISTRATE, jurisdiction of. Kimberley, 49. examination by. Scavage, 47; Charge, 47. commitment by. Judd, 48; Wyndham, 49. see, also, Arrest. MISJOINDER, when cured. Young, 111. INDEX 193 [The figures refer to pages] MOTION, see Arrest of Judgment ; New Trial ; Quashing. MUTE. STANDING, what amounts to. Eale, 116. proceedings when. Hale, IIG. judgment in case of. Hale, 116. ^^^^^, . .. „^ of person Indicted. , 95 ; Barnesciotta, 96. of person injured. Buckley, 97; Biss, 9S; Lnmlard, 100. when a corporation or partnership. Bogart, 104. initial as part of. Buckley, 97 ; 9S n. junior and senior, as part of. 98 n. when idem sonans. Foster, 99. effect of misstatement of. 98 n. effect of misspelling of. Foster, 99. NEW TRIAL, power of court to grant. Inhabitants, 159; Gray, 160; Green, 160, Stephens, 163 n. for what causes granted. Green, 160; Eaves, 164. of one joint defendant. Mawbey, 163 n. motion for, when to be made. Bepley, 165 : 165 n. motion in arrest as motion for. Carver, 168. NIGHT, arrest in the. Mackalley, 29. NOLLE PROSEQUI, power to enter. Smith, 122. as to part of indictment. Bean, 123 n. power of court to order. Hickling, 123 n. power to strike off entry of. Nutting, 123 n. as bar to prosecution. Ridpath, 50. NOLO CONTENDERE, effect of plea of. 121 n. ^ PARTICULARS, BILL OF, right to. Williams, 74 n. denial of, as subject to review. Dunlop, 74 n. PLEA, what, available to accused, lilackstone, 119. of guilty, 120 n. of misnomer. Barnesciotta, 96 ; 98 n. failure to enter. Hale, 116, 117 n.; Lacefield, 170. • waiver of. Hume, 70; Hack, 117. as waiver of defects in indictment. Carver, 168. see Nolo Contendere. PREGNANCY, procedure on plea of. Arden, 166. as ground for arrest of judgment. Arden, 166. *as ground for stay of execution. 167 n. PRESENCE OF DEFENDANT DURING TRIAL, Britton, 139; Templeman, 139; Hopt, 139; Adams, 142; McCue, 172. of jury. Gibson, 146. PRESENTMENT, nature of. Blackstone, 16. PRINCIPAL, how charged in indictment. Banson, 106. FTIOPERTY description of, in indictment. Stride, 77; Lamhard, 100; Kettle, 101; Forsyth. 102; Johnson, 102 n. ; Brown, 102 n. ; Bond, 102 n. ; Bas- sett, 103; Bogart, 104. averment of ownership of, in indictment. Lamhard, 100; Bogart, 104. Mik.Cr.Pb.(Abridged Ed.)— 13 194 INDEX [The figures refer to pages] QUASHING. indictment. Davis, 124; Riffe, 125. RECORD, what is the. Carvar, 1G8. presumption from silence of. Fults, 177. REPUGNANCY, wliat is. Hume. 71; Sales, 72. in immaterial averments. 73 n. under statutes, 73 n. RESPONDEAT OUSTER, judgment of, on overruling demurrer. Faderman. 120, SENTENCE, vphen to be pronounced. (Jhitty, 172. presence of defendant at. McCue, 172. indeterminate, validity of. Catterall, 17.3. responsiveness of, to verdict. Burden, 175 ; TaCf, 80. effect of surplusage in. Burden, 175 ; Taff, 180. on indictment containing several counts. I?urrell, 175. distinction between void and excessive. Burden, 175. amendment of. Catterall, 173. SUNDAY, arrest on. Mackalley, 29. SURPLUSAGE, in indictment, see Indictment, in sentence, see Sentence. TIME. allowance of, to consult counsel. Fitzharris, 117. UNKNOWN, alleging name as. , 95. VALUE, averment of. Lombard, 101. VENUE, when act done in one county takes effect in another. Simpson, 1; Rob- bins. 4, 8 n. in homicide. Coke, 1 ; Robbins, 4. in larceny. Ha skins, 5. in burglary. McGraw, 7 n. in embezzlement. Rogers, 7. in libel. Rogers, 7 ; 8 n. in receiving stolen goods. 9 n. in false pretense. 9 n. in forgery. 9 n. in uttering. 9 n. of accessorial acts. Hale, 9; Carlisle, 10; Ellison. 12 n. of crime done in a county subsequently divided. 9 n. change of. power of court to award. Hewitt, 12. VERDICT, kinds of. Chittv, 145. privy. Legingbam, 145. sealed. Tobin, 149. special. French, 155. unanimity in. liritton, 144; Anon., 144; Gibson, 146. procedure in rendering. Chitty, 145; Gibson, 146; Loiigfollow, 149 n. ; Tobin, 149. presence of jurors at reception of. Gibson, 146. finality of. Dawkins, 148. when juror may dissent from. 149 n. INDEX V 195 [The figures refer to pages] VERDICT— Continued, retraction of. Gibson, 146. „ „ ,. ,-^ responsiveness of, to charge. Hunter, 151; Green, lo2; French. lo5 : Lohnidn, 171. what, must show. Green, 152; French, 155. when indictment contains several counts. Selvester, 154. methods of reaching agreement on. Fitzwater, 157; Glidewell, 158. as cure for prior irregularities. Carver, 168. WAIVER, of defects in Indictment. Carver, 168. of presence of defendant during trial. Hopt. 139. see Arraignment; Plea; Pardon. WARRANT, see Arrest. WITNESS, arrest of. Anon., 32. oath of. Russell, 53. WORDS, averment of, in indictment Chitty, 104 n. WIST PUBLI8HI1J8 Ca, PBINTBRS, ST. PAUL, JUNH. LAW LIBRARY XJNIVEBSITY OF CALIFORNU LOS ANGELES lli?r™f^S^<^IO;.ALLIBRARYFAC,L,TY A A 000 "682 6 77 o