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<mwealth v. Brown 102, 171 
 
 Commonwealth v. Buckley 97 
 
 V. Carey 24 
 
 Carrington,. . 150 
 
 Gibson 146 
 
 Commonwealth v. Green 160 
 
 Commonwealth v. Hersey 85 
 
 Commonwealth v. Sutherland.... 133 
 
 Commonwealth v. Tobin 149 
 
 Commonwealth v. Twitchell 69 
 
 Custodes V. Tawny & Norwood. . . 109 
 
 Commonwealth 
 Commonwealth v. 
 Commonwealth v. 
 
 Evans v. State. 
 
 62 
 
 Fitzharris' Case 117 
 
 Fulford V. State 74 
 
 Fults V. State 177 
 
 Gaffney v. People 182 
 
 Glidewell v. State 158 
 
 Gray v. Commonwealth 160 
 
 Grosse v. State 22 
 
 Hack V. State 117 
 
 Ilarman v. Jacob 85 
 
 Haskins v.^ People 5 
 
 Hatchett v. Commonwealth lOCt 
 
 Hewitt V. State 12 
 
 Page 
 Hopt V. People of the Territory of 
 
 Utah 139 
 
 Hornberger v. State 182 
 
 Hume V. Ogle 71 
 
 Hunter v. Commonwealth 151 
 
 Hutchinson's Case 126 
 
 Joan V. Commonwealth 182 
 
 Jones v. State 62 
 
 Jones & Bever's Case 127 
 
 Kidd V. Territory 174 
 
 Klein v. People 153 
 
 Lacetield v. State 170 
 
 Long's Case 179 
 
 Longfellow v. State 149 
 
 McCue V. Commonwealth 172 
 
 Mackalley's Case 29 
 
 Mohr, In re 40 
 
 Molett V. State 91 
 
 Morey v. Commonwealth 136 
 
 Odington v. Darby 112 
 
 Pearce v. State 83 
 
 People V. Bennett 58 
 
 People V. Bogart 104 
 
 People V. Davis 124 
 
 People V. Rodley 114 
 
 Regina v. Biss 98 
 
 Regina v. Faderman 120 
 
 Regina v. Nugent 23 
 
 Regina v. Ridpath 50 
 
 Regina v. Rogers 7 
 
 Regina v. Russell 53 
 
 Regina v. Templeman 139 
 
 Rex V. 95 
 
 Rex V. Catterall 173 
 
 Rex V. Clerk 66 
 
 Rex V. Douglass 103 
 
 Rex V. Forsyth 102 
 
 Rex V. Foster 99 
 
 Mik.Ce.Pb.(Abridged Ed.) (xiii)
 
 XIV 
 
 TABLE OF CASES 
 
 Page 
 
 Hex V. Jane D 1-T 
 
 Ktx i: Johnson 102 
 
 Hex V. Judd 48 
 
 Kex V. Kettle 101 
 
 Rex V. Kimberley 49 
 
 Hex V. Legingham 145 
 
 Hex V. Loom 103 
 
 Kex V. Lord Fltzwater 157 
 
 Kex V, Mason 91 
 
 Jiex V. Maiil/ey 164 
 
 liex V. Morris 73 
 
 Itex V. Oxford 159 
 
 Kex V. Pepper 48 
 
 Kex V. Philips 109 
 
 Hex V. Puddifoot 104 
 
 Kex V. Kobe 66 
 
 Kex V. Setou 179 
 
 Kex V. Stride 77 
 
 Kex V. Sudbury 110 
 
 Kex v. Taylor 8 
 
 Kex V. Thompson 108 
 
 Kex V. Trigg 87 
 
 Kex V. Turner 154 
 
 Kex V. Whitehead 65 
 
 Rex V. Wilkes 113 
 
 Kex v. Wyndham 49 
 
 Kobbins v. State 4 
 
 P.oberts v. State 133 
 
 Rough's Case 78 
 
 Kussen V. Lucas 22 
 
 Scavage v. Tateham 47 
 
 Selvester v. United States 154 
 
 Semayne's Case 36 
 
 Simpson v. State 2 
 
 Smith V. State 68 
 
 Sprouse v. Commonwealth 69 
 
 State V. Anderson 18 
 
 State V. Arden 106 
 
 State V. Auburn 92 
 
 State V. Baker 93 
 
 State V. Bassett 103 
 
 State V, Beaton 92 
 
 State V, Benham 128 
 
 State V, Carvor 168 
 
 State V. Colly 63 
 
 State V. Conley 80 
 
 State V. Copp 75 
 
 Pago 
 
 State V. Dandy 73 
 
 State V. Dawkins 148 
 
 State V. Doran 89 
 
 State V. Eaves 164 
 
 State V. Edwards 64 
 
 State V. Ellison 12 
 
 State V. French 155 
 
 State V. Gilbert 65 
 
 State V. Green 152 
 
 State V. Haddonfield & C. Turn- 
 pike Co 84 
 
 State V. Hickling 123 
 
 State V. Hodges 87 
 
 State V. Keerl 79 
 
 State V. Kelm 20 
 
 State V. Kennedy 93 
 
 State V. Lohmdn 171 
 
 State V. McDowell 99 
 
 State V. Neddo 108 
 
 State V. Riffe 125 
 
 State V. Rosenbaum 135 
 
 State V. Sales 72 
 
 State V. Seaborn 54 
 
 State V. Smith 122 
 
 State V. Sutcliffe 166 
 
 State V. Taylor 27 
 
 State V. Vann 167 
 
 State V. Watson 121 
 
 State v. Whitney 64 
 
 State v. Williamson..... 62 
 
 State V. Woolsey 143 
 
 State of Kentucky v. Denuison. . 37 
 
 Taff V. State 180 
 
 Terrill v. Superior Court 115 
 
 Tully V. Common wealth 108 
 
 United States v. Brown 75 
 
 United States v. Davis 3 
 
 United States v. Qilhert 62, 130 
 
 United States v. Porter 75 
 
 United States v. Rice 32 
 
 United States v. Sanges 184 
 
 Windham v. Clere 45 
 
 Young V. Rex Ill 
 
 6
 
 CASES ON 
 CRIMINAL PROCEDURE 
 
 (ABRIDGED EDITION) 
 
 CHAPTER I 
 JURISDICTION AND VENUE 
 
 If two of the king's subjects go over into a foreign realm and fight 
 there, and the one kill the other, this murder, being done out of the 
 realm, cannot be for want of trial heard and determined before the 
 common law. * * * If A. give B. a mortal wound in a foreign 
 country, B. cometh into England and dieth, this cannot be tried by the 
 common law, because the stroke was given there, where no visne can 
 come/ * * * If a man be stricken upon the high sea and dieth of 
 the same stroke upon the land, this cannot be enquired of by the com- 
 mon law, because no visne can come from the place where the stroke 
 was given (though it were within the sea pertaining to the realm of 
 England, and within the ligance of the king).=^ * * * And before 
 the making of the statute of 2 Edw. VI, if a man had been feloniously 
 stricken, or poisoned in one county, and after had died in another 
 county, no sufficient indictment could thereof have been taken in either 
 of the said counties, because, by the law of the realm the jurors of one 
 county could not enquire of that which w^as done in another countv.^ 
 It is provided by that act that the indictment may be taken, and the 
 appeal brought in that county, where the death doth happen. 
 
 3 Coke, Inst. 48. 
 
 1 Compare Commonwealth v. Kunzmann, 41 Pa. 429 (1862) ; Hanks v. 
 State, 13 Tex. App. 2S9 (18S2) ; Rex v. Russell, 20 Cox, C. C. 51 (1901); 
 State V. Cutshall, 110 N. O. 538. 15 S. E. 261, 16 L. R. A. 130 (1892). 
 
 2 It is provided by Rev. St. U. S. § 730 (U. S. Comp. St. 1901. p. oSo). that 
 In such case the courts of the district into which the offender is first brought 
 Bhall have jurisdiction. St. 2 Geo. II, c. 21, provided that when the stroke 
 is given in Endand and the death occurs out of England, or the reverse, 
 the homicide may be inquired of in that part of England where either the 
 death occurred or the stroke was given. The present statute, similar in its 
 provisions, is St. 24 & 25 Vict c. 100, § 10. 
 
 3 Hale says (page 426) : "It was douhtful whether he were indictable oi 
 triable in 'either, but the more common opinion was, that he might be 
 Indicted where the stroke was given." See Year Book, 7 Hen. VII, p. 8. 
 
 Mik.Ce.Pr.(Abridged Ed.) — 1
 
 2 JURISDICTION AND VENUE (Ch. 1 
 
 SIMPSON V. STATE. 
 (Supreme Court of Georgia, 1S93. 92 Ga. 41, 17 S. E. 0S4.) 
 
 Indictment for assault to murder. 
 
 Lumpkin, J.* * * * Under the evidence introduced in behalf of 
 the state, and which the jury evidently believed to be true, the ac- 
 cused shot twice at the prosecutor, intending the balls from the pistol 
 used to take effect upon him. At the time of the firing the prosecutor 
 was in a boat upon the Savannah river, and within the state of Georgia, 
 and the accused was standing upon the bank of the river in the state 
 of South Carolina. It was conceded that if either or both of the balls 
 had struck the prosecutor an offense of some kind would have been 
 committed in Georgia, upon the idea that the act of the accused took 
 effect in this state ; but it was contended that, inasmuch as the prose- 
 cutor was not struck, no eft'ect whatever was produced in Georgia 
 by the act in question. 
 
 This contention is not well founded in point of fact, for the evidence 
 shows conclusively that, although the prosecutor was not injured, the 
 balls did strike the water of the river in close proximity to him, within 
 this state, and therefore it is certain that they took effect in Georgia, 
 although not the precise effect intended, assuming that the verdict 
 correctly finds it was the deliberate purpose of the accused to actually 
 shoot at the prosecutor. What the accused did was a criminal act, and 
 it did take eft'ect in this state. Mr. Bishop says: "The law deems that 
 a crime is committed in the place where the criminal act takes effect. 
 Hence, in many circumstances, one becomes liable to punishment in a 
 particular jurisdiction while his personal presence is elsewhere. Even 
 in this way he may commit an offense against a state or county upon 
 whose soil he never set his foot." 1 Bish. Grim. Proc. § 53. And see 
 Bish. Grim. Law, § 110. 
 
 Of course, the presence of the accused within this state is essential 
 to make his act one which is done in this state, but the presence need 
 not be actual. It may be constructive. The well-established theory of- 
 the law is that, where one puts in force an agency for the commis- 
 sion of crime, he, in legal contemplation, accompanies the same to the 
 point where it becomes effectual. Thus, a burglary may be committed 
 by inserting into a building a hook or other contrivance by means of 
 which goods are withdrawn therefrom ; and there can be no doubt 
 that, under these circumstances, the burglar, in legal contemplation, 
 enters the building. So, if a man in the state of South Carolina crim- 
 inally fires a ball into the state of Georgia, the law regards him as ac- 
 companying the ball, and as being represented by it, up to the point 
 where it strikes. If an unlawful shooting occurred while both the 
 parties were in this state, the mere fact of missing would not render the 
 person who shot any the less guilty. Consequently, if one shooting 
 
 * Part of this case Is omitted.
 
 Ch. 1) JURISDICTION AND VENUE 3 
 
 from another state goes, in a legal sense, where his bullet goes, the 
 fact of his missing the object at which he aims cannot alter the legal 
 principle. * * '^ 
 
 In Adams v. People, 1 N. Y. 173, it appeared that the accused forged 
 a paper in Ohio, upon which he procured money in New York, through 
 an innocent agent, without going into the latter state. He afterwards 
 voluntarily went into that state, and was indicted and tried for the 
 crime. It was conceded by both court and counsel that he w^as guilty 
 of committing the crime in the state of New York, and the question 
 upon which the case turned was simply whether or not, inasmuch as 
 he owed no allegiance to that state, he could be tried and punished 
 therein. In U. S. v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932, it ap- 
 peared that a gun was fired from an American ship lying in the har- 
 bor of Raiatea, one of the Society Isles, by which a person on a schoon- 
 er belonging to" the natives, and lying in the same harbor, was killed ; 
 and it was held that the act, in contemplation of law, was done on 
 board the foreign schooner, where the shot took effect, and that juris- 
 diction of the crime belonged to the foreign government, and not to 
 the courts of the United States. 
 
 In Hawes on Jurisdiction (section 110) it is laid down that "a crime 
 may be committed within the jurisdiction of a state, although the per- 
 son committing it never was within its borders, if the act takes effect 
 there." An interesting discussion pertinent to the question involved 
 may be found in 6 Crim. Law Mag., beginning on page 155, in an ar- 
 ticle entitled "Dynamiting and Extraterritorial Crime." "A party who, 
 in one jurisdiction, or in one county, may put in operation a force that 
 does harm in another, may be liable in either for the offense." Brown, 
 Jur. § 92. This section also contains numerous illustrations which 
 are apt and pertinent. See, also, Reg. v. Rogers, 14 Cox, Cr. Cas. 22. 
 
 The above authorities demonstrate beyond question that a criminal 
 act begun in one state and completed in another renders the person 
 who does the act liable to indictment in the latter. In view of these 
 authorities, there cannot in the present case be any doubt whatever 
 that Simpson would have been indictable in Georgia if a ball from his 
 pistol had actually wounded Sadler. That this would be true is too 
 well established for serious controversy. The able and zealous coun- 
 sel for the plaintiff in error candidly conceded that such would be the 
 law, but contended that, as the balls "took no effect in Georgia," the 
 entire act of the accused was committed in South Carolina, and that 
 he really did nothing in this state. 
 
 We have endeavored to show that this contention is not sound. As 
 we have already stated, the act of the accused did take effect in this 
 state. He started across the river with his leaden messenger, and w^as 
 operating it up to the moment when it ceased to move, and was, there- 
 fore, in a legal sense, after the ball crossed the state line, up to the 
 moment that it stopped, in Georgia. It is entirely immaterial that the 
 object for which he crossed the line failed of accomplishment. It hav-
 
 4 JURISDICTION AND VENUE (Ch. 1 
 
 ing been established by abundant authority and precedent that in crime 
 there may be a constructive as well as an actual presence, there can be, 
 in a case of this kind, in which the act of the accused, when analyzed, 
 is simply an attempt to unlawfully wound another by shooting, no ra- 
 tional distinction in principle, as to the question of jurisdiction, wheth- 
 er the attempt is successful or not. The criminality was complete, and 
 the ofifense was perpetrated in Georgia, irrespective of results. 
 m * * 
 
 Judgment affirmed." 
 
 BOBBINS V. STATE. 
 
 (Supreme Court of Ohio, 1837. 8 Ohio St. 131.) 
 
 Bartley, C. j.8 * * * The court was asked to instruct the 
 jury that, to convict under this indictment, it must be proven that the 
 offense was committed in Marion county, and that, if the accused gave 
 the poison into the hands of the deceased in Shelby county, and she 
 did not swallow it there, but carried it with her into Marion county, 
 and there swallowed it, and became poisoned, the crime was commit- 
 ted, if committed at all, in Shelby, and not in Marion, county. The 
 court refused to give this instruction, as asked, but did charge the 
 jury that, before finding a verdict of guilty, they must be satisfied, 
 
 B Accord: State v. Hall, 114 N. C. 909, 19 S. E. G02, 28 L. R. A. 59. 41 
 Am. St. Rep. 822 (1894), where the court refused jurisdiction of defendant, 
 who, standing in North Carolina, shot a person in Tennessee. 
 
 There being no common law of the United States as to crimes (see U. S. 
 T. Coolidge, 1 Wheat. 415, 4 L. Ed. 124 [1816] ; U. S. v. AVorrall, 2 Dall. 384, 
 1 L. Ed. 426 [1798]), the federal courts have no Jurisdiction to punish an act, 
 unless such act is made a crime by the Constitution or by act of Couc:res& 
 Congress has from time to time, under the power given it by the Constitution 
 to create, define, and punish offenses whenever they shall deem it necessary 
 for effectuating the objects of the government, enacted statutes punishing 
 crimes against the United States and providing for the proper venue. If 
 such statutes do not expressly or by implication make the crime exclusively 
 cognizable in a federal court, and the same criminal act is also punishable 
 by the laws of the state, the state in which the act was done has concurrent 
 jurisdiction over the offense. Moore v. Illinois, 14 How. 13, 14 L. Ed. 306 
 (1843). 
 
 See, for jurisdiction of the United States Court for China, Biddle ▼. 
 United States, 156 Fed. 759, 84 C. C. A. 415 (1907). 
 
 Const, art. 1, § S, cl. 17, gives the right of exclusive legislation to the 
 United States, to exorcise authority over all places purchased by the consent 
 of the Legislature of the state in which the same shall be, for the erection of 
 forts, magazines, arsenals, dockyards, and other needful buildings. The fed- 
 eral courts have, therefore, exclusive jurisdiction over all crimes committed 
 In fnich places, so purchased, in the absence of an express reservation of 
 jurisdiction by the state Legislature (United States v. Cornell, 2 Vinson. 60, 
 Fed. Cas. No. 14.807 [1819)), or in lands coded by a state to the United States 
 without reservation of jurisdiction (United States v. Carter [C. C] 84 Fed. 622 
 [1S;t7]). But the purchase of such lands, without the consent of the state 
 In whose territoiy they are, does not give the federal court jurisdiction over 
 crimes comiqitted In such lands. United States v. Ponn (C. C.) 48 Fed, 669 
 (ISSO). And see In re O'Connor, 37 Wis. 379, 19 Am. Rep. 765 (1S75J. 
 
 • Tart of this case is omitted.
 
 Ch. 1) JURISDICTION AND VENUE & 
 
 from the proof, that the accused committed the act in Marion county, 
 but that it was not necessary that they should find that he had been in 
 Marion county, or had given the poison into the hands of the deceased 
 in that county. It would be sufficient, to justify a conviction, if they 
 found that the accused had furnished the poison to Nancy Holly in 
 Shelby county, and that, before swallowing it, she had taken it with her 
 and went into the county of Marion, and there swallowed the poison 
 and died. * * * 
 
 It is insisted that the accused had not been in Marion county, and 
 that a person could not commit a crime in a county in which he had 
 not been. Ordinarily this would be true, but it is not necessarily so. 
 A person may commit a criminal act in a ':ounty, although he has never 
 stepped a foot within its limits. If a person in Morrow county, near 
 the line of Marion county, should, by firing a gun or hurling a bludg- 
 eon across the county line, unlawfully kill a person in Marion county, 
 he might be guilty of a crime, and be amenable to a prosecution in the 
 latter county, although he had never been within its limits. 
 
 There does not appear, therefore, to have been any error in the 
 charge of the court on this point. 
 
 HASKINS v. PEOPLE. 
 
 (Court of Appeals of New York, 1857. 16 N. T. 344.) 
 
 The prisoner was indicted, with four other persons, for grand lar- 
 ceny ; the property alleged to have been stolen being money and bank 
 notes, the property of David I. Shaw. 
 
 Denio, C. j.t * * * As tj^g stolen money was brought by the 
 thieves into the county of Onondaga, the prisoner was legally indicted 
 in that county. This has been the settled law from an early period. 
 3 Inst. 113; 1 Hale's P. C. 507; People. v. Gardner, 2 Johns. 477. 
 Even if the original taking had been in another state or country, and 
 the felon had brought the stolen property into this state, h^ could now 
 be indicted in any county into or through which he carried it. 2 Rev. 
 St. 698, § 4; People v. Burke, 11 Wend. 129. No distinction arises 
 out of the fact that a burglary was committed where the property 
 was stolen, in Cayuga county. Burglary, when accompanied with 
 larceny, is a compound ofifense. Under a count for the burglary the 
 prisoner may be convicted of a simple larceny. At the common law 
 the burglary could only have been prosecuted in the county where it 
 was committed; but when accompanied with larceny the latter could 
 be prosecuted in any county into which the prisoner took the stolen 
 property. _ The same is true of robbery or other compound offenses. 
 
 Tlie principle is well illustrated in the following passage from 
 Hale: "A. robs B. on the highway, in the county of C, of goods of 
 
 7 Part of this case is omitted.
 
 6 JURISDICTION AND VENUID (Ch. 1 
 
 only the value of twelve pence, and carries them into the county of 
 D. ' It is certain that this is larceny in the county of D., as well as 
 in the county of C ; but it is only robbery in the county of C, where 
 the first taking was, and for robbery he cannot be indicted or appre- 
 hended in the county of D., but only in the county of C. But he may be 
 indicted of larceny in the county of D., though the robbery were but 
 of the value of one penny; yet if A. wereMndicted thereof in the 
 county of C he should have had judgment of death and been excluded 
 from clergy." 1 Hale's P, C. 536. In these cases the indictment 
 takes no notice of the county where the first taking was, the theory 
 being that the legal possession of the goods remains in the true owner, 
 and every moment's continuation of the trespass and felony amounts 
 to a new caption and asportation. 1 Russ. on Crimes, 173; 2 Hale, 
 163; 1 Hawk. P. C. c. 33, § 52 ; 4 Bl. Com. 304; 2 East, P. C. 771, 
 c. 16, § 156. The idea that, in cases of this description, the crime is 
 considered as actually committed in the county where the offender is 
 found with the goods, is very distinctly carried out in the case of Rex 
 V. Parker, 1 Russ. 174. An indictment was found in Hertfordshire 
 for stealing four live tame turkeys, and it appeared that they were 
 stolen alive in Cambridgeshire, killed there, and carried dead into 
 Hertfordshire; and, upon the point being heard, the judges held that, 
 though the carrying into Hertfordshire constituted a larceny, yet it 
 was a new larceny there, and a larceny of dead turkeys, and not of 
 live ones. 
 
 It was unnecessary, and I think it would have been erroneous, to 
 have set out in the indictment the offense in Cayuga county. The 
 courts in Onondaga county had no jurisdiction of that transaction, as 
 a distinct offense. It was simply matter of evidence, to characterize 
 what was done in Onondaga, and to show the quality of that act. 
 
 The prisoner might, under the statute, have been indicted in Onon- 
 daga for the burglary committed in Cayuga. 2 Rev, St. 727, § 50. In 
 such a case, I think the indictment must have been special. The bur- 
 glarious entry could not have been charged to have been made in Onon- 
 daga without a variance; and if it had stated it to have been made in 
 Cayuga, according to the fact, without a statement that the property 
 had been brought into Onondaga, it would have appeared that the 
 courts of the latter county had no jurisdiction to try the offense. 
 
 The difference between the two cases is this: Burglaries 'may be 
 tried out of their proper counties in certain special cases; that is, 
 where the goods burglariously taken are carried into another county 
 by the offenders. But this is by positive law, and not because the 
 burglary was actually committed in the county where the indictment 
 is found, or in judgment of law is considered to have been committed 
 there. The fact must therefore be set out which brings the case within 
 the statute ; but in the case of an indictment for a simple larceny, 
 found in a county into which the thief has carried the property stolen 
 in another county, the law adjudges that the offense was in truth com-
 
 Ch. 1) JURISDICTION AND VENUE < 
 
 mitted there, and hence there is no occasion for a statement in the 
 pleading- of what occurred in the other county. * * * 
 Judgment affirmed.* 
 
 REGINA V. ROGERS. 
 
 (Court of Criminal Appeal, 1S77. 14 Cox, Cr. Cas. 22.) 
 
 Case stated for the opinion of this court by the assistant judge of 
 the Middlesex sessions. 
 
 At a general sessions of the peace for the county of Middlesex held 
 at the Guildhall, Westminster, on the 7th day of June, 1877, the pris- 
 oner was tried on an indictment which charged him with having, when 
 he was employed in the capacity of clerk or servant to Middleton 
 Chapman and another, embezzled the sum of ilO. 17s. 6d. received 
 by him on their account.^ >;= * * 
 
 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<e of the same character. 
 
 But the prevaihng consideration is the want of any words importing 
 that the proceeding shall be void, if the directions of the acts be not 
 strictly observed. Upon this ground McEntire's Case, 4 N. C. 267, 
 was decided, and ruled that in this state exceptions to grand jurors 
 must be taken at a period analogous to that for excepting to a petit 
 juror; that is, at the earliest point of time the party could. That to a 
 petit juror must be by challenge when tendered, as has long been set- 
 tled at common law, and was also here under the same act of 1779 in 
 Oldham's Case, 2 N. C. 450. In strictness, so ought a grand juror to 
 be challenged before he is sworn. Thus it was at common law, and 
 there our acts still leave the case. That was the course, I recollect, in 
 Burr's trial ; and the case cited from 9 Mass. 107, Commonwealth v. 
 Smith, rules that, upon a statute of that state, similar to ours, no plea 
 of an irregularity in impaneling the grand jury could be received. 
 But it seems to be agreed in McEntire's Case that the objection may 
 be by plea upon the arraignment; and to that I would adhere, as a 
 fair and convenient method. But I think all objections of the sort 
 are precluded by a plea to the felony. * * * 
 
 I am therefore of opinion that both of the objections taken in the 
 first reason in arrest are insufficient and must be overruled. * * * * 
 
 * Some courts hold that. If ficcused was in a position to object by chnllensje 
 either to the array or to a juror, his neglect to challenge ou the organiza- 
 tion of the jury is a waiver, and he cannot afterward object by motion to 
 quash or l)y plea in abatement. Musick v. People, 40 111. 20S (ISGG) ; McClary 
 V. State, 75 Ind. 2G0 (ISSl) ; Fisher v. State, 93 Ga. 309, 20 S. E. 329 (1S93). 
 But if he had no opportunity to challenge he may plead in abatement any 
 matter which was sullicient cause of challenge. Pointer v. State, 89 Ind. 2.j5 
 (1SS3). Others hold that the accused may except on arraignment. State v. 
 Rockafellow, 6 N. J. Law, 332 (1790) ; Newman v. State, 1-i Wis. .393 (1861). 
 It is too late after verdict (People v. Robinson. 2 Parker, Cr. R. 235 [18551). 
 or after pleading In bar (State r. Carver, 49 Me. 588. 77 Am. Dec. 275 
 [1861] ; Pointer v. State, 89 Ind. 255 [1883] ; State v. Heffcrnan, 28 R. I. 477, 
 68 Atl. 3G4 [1907]), to object to the Incompetency of the grand jury.
 
 Ch. 8) THE INDICTMENT 57 
 
 CHAPTER VIII 
 THE INDICTMENT 
 
 SECTION 1.— FORM AND REQUISITES OE THE INDICT- 
 MENT IN GENERAL 
 
 I. The Caption- 
 
 Touching' the forms of indictments, there are two things consid- 
 erable : 
 
 1. The caption of the indictment. 
 
 2. The indictment itself. 
 
 The caption of the indictment is no part of the indictment itself, 
 but it is the style or preamble, or return that is made from an inferior 
 
 court to a superior, from whence a certiorari issues to remove. 
 
 * * * 
 
 1. The name of the county must be in the margin of the record, or 
 repeated in the body of the caption. 
 
 2. The court where the presentment is made must be expressed. 
 
 * * * 
 
 3. It must appear where the session was held, and that the place 
 where it was held is within the extent of the commission. * ♦ ♦ 
 
 4. The justices' names. * * * 
 
 5. The title of their authority. * * * 
 
 6. It must return that the indictment was made per sacramen- 
 tum. * * * 
 
 7. It must name the jurors that presented ,the offense. * * * 
 
 8. They must be returned to be probi et legales homines, and de 
 comitatu praedicto. * * * 
 
 9. It seems requisite also to add this clause, onerati et jurati ad in- 
 quirendum pro domino rege et pro corpore comit' przedict'. * * ♦ 
 
 And thus far for the caption of the indictment, where, note: (1) 
 That if the caption be faulty in the form, yet the same term it may be 
 amended by the clerk of the assizes, or the peace, but not in another 
 term. 
 
 2 Hale, P. C. c. XXIII.
 
 58 THE INDICTMENT (Cll. 8 
 
 PEOPLE V. BENNETT. 
 
 (Court of Appeals of New York, 1S67. 37 N. Y. 117, 93 Am. Dec. 551.) 
 
 FuLLERTON, J.^ After the plea of not guilty had been entered, and 
 the trial moved by the district attorney, the counsel for the prisoner 
 made a motion to quash the indictment, because: 
 
 1. It did not appear, on the face of the indictment, that it was found 
 or presented by a grand jury. 
 
 2. Because it did not appear, on its face, that it was found and pre- 
 sented by the requisite number of grand jurors. 
 
 3. Because it was not alleged, in the indictment, that the grand jury 
 were charged and sworn by the Court of Sessions to inquire for the 
 people of the state of New York, and for the body of the county of 
 Cortland. * * * 
 
 That part of the indictment which is complained of as defective is 
 as follows : 
 
 "Court of Sessions, 1 » , , _, 
 "Cortland County. | Cortland County-ss: 
 
 "The jurors of the people of the state of New York, in and for the 
 body of the county of Cortland, upon their oaths present." 
 
 Then follow apt words charging the defendant with the commis- 
 sion of a larceny. Here are all the requisites of a good commence- 
 ment to an indictment. It plainly appears to have been found in the 
 Court of Sessions for the county of Cortland, and by the jurors of 
 
 1 Part of this case is omitted. 
 
 "In practice, in England, appending the caption Is usually a ministerial 
 act. and it is introduced as a part of the record, or return from an inferior to 
 a superior court, from which a certiorari issues. Here the caption is usually 
 drawn with the other parts of the indictment, and is embodied in the instru- 
 ment returned by the grand jury as a true bill. But we do not think that an 
 insuperable objection to showing, by a certificate, filed in the course of pro- 
 ceedings in a particular case, under the hand of the clerk, the actual time 
 of filing the bill. It might be a good reason why an amendment should not be 
 made of the caption in such cases. * ♦ * The time of finding of the bill 
 may be shown aliunde, when it becomes necessary to show that the bill was 
 found at a day subsequent to the commencement of the session of the court." 
 Dewey, J., in Commonwealth v. Stone, 3 Gray (Mass.) 453 (1855). 
 
 "Iiiasmiich as a prosecution, in this state, is never removed from one to a 
 highm- tribunal, a caption can be of no benefit to an Indictment, and is uni- 
 formly dispensed with." Voorhics, J., in State v. Marion, 15 La. Ann. 495 
 (18G0). 
 
 A caption Is only necessary where the court acts under a special commission, 
 and a mistake in the caption when the court sits by authority of public law 
 will not vitiate the indictment. State v. Wasden, 4 N. C. 598 (1817). 
 
 "Following the cases cited above, we feel it our duty to regard the question 
 as settled in this state, tliat a caption, such as is described in Reeves v. State 
 [20 Ala. 33], supra, is an essential of a good indictment, and when the ques- 
 tion comes before us on appeal, if the record does not contain such caption, 
 it is fatal error. If It were an open question in this state, it might admit of 
 serious doubt if this doctrine did not have its origin in certiorari proceedings 
 from courts of limited, inferior jurisdiction, and that it should not be applied to 
 records from rourts of general jurisdiction." Stone, J., in Goodloe v. State, 
 60 Ala. 93 (1877).
 
 Ch. 8) THE INDICTMENT 59 
 
 the people for said county. It is true that it does not allege that it 
 was found by a grand jury, or by the legal number of grand jurors; 
 but these are plainly implied, because that body, legally constituted, 
 alone have the power to present any one for trial. This has been fre- 
 quently decided. McClure v. State, 1 Yerg. (Tenn.) 206, per Ca- 
 tron, J. 
 
 The form of this indictment is identical, mutatis mutandis, with that 
 long since adopted in England, and which has obtained in most of the 
 states in our own country. The form used in England nearly three 
 hundred years ago was "juratores pro domina regina presentant quod," 
 etc. West's Symboleography, pt. 2, p. 96. And it has been continued 
 without exception to the present day. A great deal of confusion, how- 
 ever, exists in the books, because the distinction between the com- 
 mencement and the caption of an indictment, which has always existed 
 in England, has not uniformly been maintained here. "The whole 
 question as to what a caption should contain," says Bishop, in his trea- 
 tise on Criminal Procedure (section 154), "appears, when approached 
 through the American books, draped in mist and girded about with 
 darkness." 
 
 Observing the proper distinction between the caption and the com- 
 mencement of an indictment, no valid objection will be found to the 
 one in this case. The caption is no part of the indictment. It consists 
 wholly of the history of the proceedings when an indictment is re- 
 m.oved from an inferior to a superior court. As I have already stated, 
 the form of an indictment in many of our own states, and which form 
 is derived from England, is thus: "The jurors of the people of the 
 
 state of , in and for the body of the county of , upon 
 
 their oath present," etc. This is the commencement, and all that it 
 need contain. * * * 
 
 So far, therefore, as the objections in this case go to the form of 
 the indictment, the latter must be considered good. Should an indict- 
 ment be found in an improper manner, or by an insufficient number 
 of jurors, the way is open for redress by m.otion, which secures to the 
 accused party immunity from an illegal trial or punishment. State v. 
 Batchelor, 15 J\Io. 207, 208; Reg. v. Hearne, 9 Cox, C. C 433, 436; 
 10 Jurist (N. S.) 724; 4 Blackstone, 238; Bishop's C. P. § 448. * * * 
 
 II. The Statement op the Oeeense 
 
 The parts of an indictment are many. 2. The strictness required 
 in indictments is great, because life is in question. 3. Therefore very 
 nice and slender exceptions have been of latter ages allowed, and they 
 have been with too much facility quashed and reversed. * * * 
 
 An indictment is nothing else but a plain, brief, and certain nar- 
 rative of an offense committed by any person, and of those necessary 
 circumstances that concur to ascertain the fact and its nature. * ♦ *
 
 GO THE INDICTMENT (Ch. 8 
 
 1. Reg-ularly every indictment ought to be in Latin, as all pleadings 
 in the courts ought to be, and it is of excellent use, because, it being 
 a fixed, regular language, it is not capable of so many changes and 
 alterations as happen in vulgar languages. * * * 2 
 
 Regularly false Latin doth not vitiate an indictment, if yet the in- 
 dictment be reasonably intelligible, * * * as "prgefato Reginse," 
 where it should be "prrefatoe." But if the words be words of art, and 
 by omission or misplacing of letters become insignificant, they vitiate 
 the indictment, as "burgariter" for "burglariter," "feloniter" for "felo- 
 nice," "murdredavit" for "murdravit" ; but "burgulariter" hath been 
 held good. 4 Co. Rep. 39 b, Brooks' Case. * * * 
 
 So if it make the indictment insensible or uncertain, as if A. and 
 B. be indicted for steahng, "felonice cepit et asportavit," where it 
 should be "ceperunt," it shall be quashed. P. 42 Eliz. B. R. Lane's 
 Case, Cro. Eliz. 754; so in an indictment of murder, the stroke "in 
 sinistro bracio," where it ought to be "brachio," for it appears not 
 where the wound was, the words being insensible. T. 31 Eliz. B. R. 
 Webster's Case, Cro. EHz. 137. 
 
 Abbreviations that are usual are allowable in indictments. * ♦ * « 
 Figures to express numbers are not allowable in indictments. * * * < 
 
 2. An indictment grounded upon an offense made by act of Parlia- 
 ment must by express words bring the offense within the substantial 
 description made in the act of Parliament, and those circumstances 
 mentioned in the statute to make up the off'ense shall not be supplied 
 by the general conclusion "contra formam statuti." * * * If a man 
 
 • be indicted for an offense, which was at common law, and concludes 
 "contra formam statuti," but in truth it is not brought by the indict- 
 ment within the statute, it shall be quashed, and the party shall not 
 be put to answer.it as an oft'ense at common law. 
 
 2 Hale, P. C. c. XXIV. 
 
 An indictment consists of three parts: The commencement, the 
 statement, and the conclusion. * * * The commencement of every 
 indictment is thus: "Middlesex, to wit: The jurors for our lady the 
 queen upon their oath present that." * * * The venue in the margin 
 
 2 This was chanjred by St. 4 Geo. II. c. 26, and 6 Geo. II, c. G, which requires 
 all indiotments to be in the Enslish lanima.^e. The use of Latin, it is believed, 
 never obtained in the United States. Bishop, New Cr. Proc. 3342. See People 
 V. Ah Sum. 92 Cal. G18, 28 Pac. GSO (1892). 
 
 8 St. 4 Geo. II, c. 26. and 6 Geo. II, c. 6. prohibit abbreviations in indict- 
 ments. See and cf. United States v. Reichert (C. O.) 32 Fed. 142 (18S7) : 
 Commonwealth v. Desmartean, 16 Gray (Mass.) 1 (ISGO) ; State v. Jericho. 40 
 Vt. 121. 94 Am. Dec. .387 (18G8) ; State v. Kean, 10 N. H. 347. 34 Am. Dec. 
 ■162 (1839). Where the presence of abbreviations renders the iudietuient 
 defective, objection must be taken before verdict. Commonwealth v. Desmar- 
 teau, IG Gray (Mass.) 1 (ISGO). 
 
 * It is said to be the better practice to write figures at length than to 
 express them in Arabic characters; but the employment of the latter will 
 not vitiate the indictment. State v. Raiford, 7 Port. (Ala.) 101 (1838). 
 Where it is held that words must be used instead of figures, the objection to 
 the use of figures cannot be taken after verdict. Commonwealth v. Jackson, 
 1 Grant Cas. (Pa.) 2G2 (1855).
 
 Ch. 8) THE INDICTMENT 61 
 
 should be the county in which the offense was committed; or, if the 
 jurisdiction of the court in which the bill of indictment is to be pre- 
 ferred extend only to part of the county, or * * * include more 
 than one county, or be confined within the limits of a borough, * * * 
 the venue in the margin should be coextensive with the jurisdiction of 
 the court. This is the general rule of the common law ; but many 
 exceptions have been made to it by statute. 
 
 Archbold's Crim. Plead. (13th Ed.) 20. 
 
 The most considerable parts of an indictment in capital offenses are : 
 1. The name and addition of the party offending. 2. The day and 
 time of the offense committed. 3. The place where it was commit- 
 ted. 4. Upon or against whom committed. 5. The manner of the 
 commission of it. 6. The fact itself and the nature of it. 7. The con- 
 clusion. 
 
 Regularly every indictment ought to conclude "contra pacem domini 
 regis." " 
 
 If an offense be newly enacted, or made an offense of an higher na- 
 ture by act of Parliament, the indictment must conclude "contra for- 
 mam statuti." 
 
 2 Hale, P. C. c. XXV. 
 
 If an indictment do not conclude "contra formam statuti," and the 
 offense indicted be only prohibited by statute, and not by common 
 law, it is wholly insufficient, and no judgment at all can be given upon 
 it.' But if the oft'ense were also an offense at common law, I take it 
 to be in a great measure settled at this day that judgment may be given 
 as for an offense at common law, though the indictment conclude "con- 
 tra formam statuti." 
 
 If there be more than one statute concerning, the same offense, and 
 the first of them was never discontinued, and the latter only continue 
 the former without making any addition to it, or only qualify the meth- 
 od of proceeding upon it, without altering the substance of its purview, 
 it seems agreed that it is safe, in an indictment upon any such statute, 
 to conclude "contra formam statuti"; and it hath been holden that a 
 conclusion "contra formam statutorum" will in such cases vitiate the 
 prosecution. * * * But where a statute hath been wholly discon- 
 tinued, and is afterwards revived, there seem to have been some opin- 
 ions that a prosecution on it ought to conclude "contra formam statu- 
 torum." 
 
 Also where the same offense is prohibited by several independent 
 statutes, there are some authorities that you must either conclude "con- 
 tra formam statutorum," or "contra formam" of the particular stat- 
 utes, naming them, and that if you barely conclude "contra formam 
 statuti," the indictment will be insufficient, for not showing on which 
 
 B See Anderson v. State, 5 Ark. 444 (1843) ; Reg. v. Lane, 6 Mod. 128 (1704). 
 
 6 State V. Soule, 20 Me. 19 (IStl) ; People v. Enoch, 13 Wend. (N. Y.) 159, 
 27 Am. Dec. 197 (1834). Statutes in England and in some states have 
 abolished the necessity for the conclusion. Castro v. Reg. 14 Cox, C. C. 546 
 (18S1); State v. Dorr, 82 Me. 341, 19 Atl. 831 (1890).
 
 G2 THE INDICTMENT (Cll. 8 
 
 one of the statutes it was taken. But there are also strong authorities 
 for the contrary opinion, which is also most agreeable to precedents.^ 
 2 Hawkins, P. C. c. 25, §§ 116, 117. 
 
 EVANS V. STATE. 
 
 (Court of Criminal Appeals of Texas, 1S95. 34 Tex. Cr. R. 110, 29 S. W. 2G6.) 
 
 Henderson, j.s * ♦ * There was a motion by defendant to 
 quash the indictment on the ground that the indictment contained the 
 word "possion," and not "possession," which was overruled by the 
 court, and a bill of exception saved by the defendant. The defendant 
 also objected to the evidence regarding the taking of the clothing, on 
 the ground that there was no proper allegation in the indictment char- 
 ging that same were in the possession of Barnard. The court over- 
 ruled the objection, and to this defendant reserved an exception. The 
 defendant also reserved a bill of exception to the charge of the court 
 on possession, on the ground that there was no sufficient allegation in 
 the indictment to support such charge. 
 
 The sufficiency of the word "possion," as used in the indictment, in- 
 stead of the word "possession," used in the statute defining robbery, is 
 thus presented for our consideration. We have examined the dic- 
 tionaries, and nowhere find such a word as "possion," nor do we find 
 it used as an abbreviation for "possession" or any other word. It is 
 not idem sonans with the word "possession," nor can we consider it 
 simply as an instance of bad spelling. Evidently the pleader intend- 
 ed to write in the indictment the word "possession," but with us it is 
 not a question of what he means, but what did he do ; and the word 
 "possession," in defining the ofifense of robbery, is material, and we 
 cannot supply it by intendment. 
 
 In Jones v. State, 25 Tex. App. 621, 8 S. W. 801, 8 Am. St. Rep. 
 449, this court at a former term held that in an indictment for theft 
 the word "appriate" was not equivalent to the word "appropriate" as 
 used in the statute defining theft, and that its use vitiated the indict- 
 ment. In State v. Williamson, 43 Tex. 502, referred to in the above 
 cases, the very word "possion" used in the indictment in this case 
 was used in the indictment in that case. The question came up in that 
 case on a motion in arrest of judgment. The court in that case seemed 
 to treat the word as one of form, saying, "An objection of this char- 
 acter should be interposed before the trial, and should not be made 
 the ground of a motion in arrest of judgment;" and yet they say, "It 
 cannot be doubted that the indictment must aver that the property 
 was taken from the possession of the owner." 
 
 T See U. S. V. Gibert, 2 Siimn. 19, Fed. Cas. No. 15,204 (1S34). 
 8 I'art of this case is omitted.
 
 Ch. 8) THE INDICTMENT 03 
 
 We do not think it can be doubted that if an indictment for theft or 
 for robbery should fail to properly allege the possession of the prop- 
 erty taken it is a matter of substance, and of such materiality that it 
 can be taken advantage of by motion in arrest of judgment, as well 
 as by a motion to quash the indictment ; and the only question for us 
 to determine is, does the use of the word "possion" accomplish this? 
 As before stated, the word used is not idem sonans with "possession," 
 and it is not an abbreviation of that word, and we cannot supply a 
 proper word conveying in its meaning a material averment in an in- 
 dictment. If we were to undertake to do so, we would afford a bad 
 precedent, when, by the rigid adherence to the rule, those who draw 
 indictments will be encouraged to use more care and diligence, and 
 mistakes will thus be avoided. * * * 
 
 The judgment of the lower court is accordingly reversed and re- 
 manded." 
 
 STATE V. COLLY. 
 
 (St. Louis Court of Appeals, Missouri, 1897. 69 Mo. App. 444.) 
 
 Bland, P. J.^° At the February term, 1893, of the Lawrence coun- 
 ty circuit court, the defendant was indicted for a violation of the dram- 
 shop law. The charge was, that he sold one bottle of "larger" beer. 
 The case was taken to the Barry county circuit court by change of ven- 
 ue, and at the November, 1895, term thereof he filed his motion to 
 quash the indictment, because the indictment charges the selling ot 
 "larger" beer (not "lager" beer). This motion was overruled. A 
 trial was had by the court sitting as a jury. Defendant was convicted. 
 Motions in arrest and for new trial were filed and overruled, bill of ex- 
 ceptions filed, and appeal taken to this court. 
 
 The fact that the pleader used one "r" too many in his spelling of 
 the word "lager," in the absence of the fact that the use of this super- 
 fluous letter did not construct another word having a separate and dif- 
 ferent signification from the word "lager," makes it quite clear that 
 it is a case of misspelling, which does not vitiate a pleading, civil or 
 criminal, where, as in this case, it is apparent what word was intended 
 to be used, and where the word as spelled has the same sound as the 
 intended word, when correctly spelled. The evidence supported the 
 finding of the court. No instructions were asked or given. 
 , We find no error in the record, and affirm the judgment. All con- 
 cur.^* 
 
 9 Accord: "Maice" for "malice." VTood v. State, 50 Ala. 144 (1873). "Lar- 
 cev" for "larceny." People v. St. Clair, 56 Cal. 406 (ISSO). "Fartlier'' for 
 "father." State v. Caspary, 11 Rich. Law (S. C.) 356 (ISoS), 
 
 10 Part of this case is omitted. 
 
 11 Accord: "Eicet" for "eight." Somerville v. State, 6 Tex. App. 433 (1879). 
 "Mair" for "mare." State v. Myers, 85 Tenn. 203, 5 S. W. 377 (18SG).
 
 f)4 THE INDICTMENT (Ch. 8 
 
 STATE V. EDWARDS. 
 (Supreme Court of Missouri, 1S54. 19 Mo. 674.) 
 
 Ryland, ^' Judge, delivered the opinion of the court. ♦ ♦ * The 
 omission in this indictment consists of the neglect to insert the word 
 "did" before the words "assault, beat and maltreat one Stephen L. 
 Page, in the peace then and there being, and other wrongs," etc., so 
 as to make the sentence read thus: "With force and violence, in a 
 turbulent and violent manner, 'did' assault, beat and maltreat," etc. 
 We are inclined to think that this word "did" may, in this indictment, 
 be supplied by intendment. 
 
 In indictments for misdemeanors merely, such intendment is often 
 resorted to. The strictness and rigor in the construction of indict- 
 ments for felonies are not applied uniformly to indictments for mere 
 misdemeanors. In the case of State v. Haider, 2 McCord (S. C.) 377, 
 13 Am. Dec. 738, the omission to insert the word "did" before the 
 words "feloniously utter and publish, dispose and pass" was held fatal, 
 and the judgment was arrested. This indictment was for a felony. 
 
 In the case of State v. Whitney, 15 Vt. 298, which was an indict- 
 ment for a misdemeanor, selling liquor by the small measure, without 
 license, the word "did" was omitted, which should have been joined 
 with the words "sell and disjSose of." This omission was held not to 
 be fatal on motion in arrest of judgment. Bennett, J., in delivering the 
 opinion of the court, said: "In this indictment, it is alleged that the 
 respondent, on the first day of August, A. D. 1842, at, etc., sell and dis- 
 pose of, etc. It is evident the omission is purely a clerical one. The 
 auxiliary verb may be supplied by intendment." 
 
 There was no necessity to supply this auxiliary verb "did" before 
 one of the verbs used in this sentence above quoted, viz., the verb 
 "beat." Leaving out the words "assault and maltreat," and using the 
 verb "beat" alone, and the charge is positive and direct. The words in 
 the beginning of this sentence, "with intent," may be rejected as sur- 
 plusage. They do not injure the indictment, being no part of the de- 
 scription of the offense, and may be stricken out, leaving the offense 
 full and complete. But it is very clear that the words "assault, beat 
 and maltreat" express all the action which is imputed to the defend- 
 ant, and no one can misapprehend their sense in the connection in 
 which they are used, and the helping verb will at once be supplied 
 by intendment. In the case of King v. Stevens & Agnew, 5 East, 2G0, 
 
 "Assatt" for "a<5sanlt." State v. Crane, 4 Wis. 400 flS54). ".Tanury" for 
 "January." Hutto v. State, 7 Tex. App. 44 (1S79). "Kill" for "kill." Irvin 
 V. State, 7 Tex. App. 109 (1S79). "Frausulently" for "fraudulently." St. 
 Tvjuis V. State (Tex. Cr. App.> 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. 
 
 <B Accord: Singing libelous songs. Rex v. Benfield. 2 Burr. 9S0 (1760). 
 False pretense. Young v. Rex. 3 T. R. 98 (17S9). Disturbance of worship. 
 Ball V. State, 67 Miss. 358, 7 South. 3.53 (1889). 
 
 4 6 See. also, State v Fox, 15 Vt 22 (1843); State v. Davis, 2 Sueed (Tenn.) 
 273 (1854).
 
 Ch. 9) THE INDICTMENT 111 
 
 YOUNG V. REX. 
 
 (Court of King's Bench, 17S9. 3 Term R. 98.) 
 
 An indictment was preferred at the sessions at Bristol against the 
 defendants on the 30 Geo. II, c. 24, for obtaining money by false pre- 
 tenses. * * * The defendants were found guilty, and sentenced 
 to be transported for seven years, ♦ * * 
 
 Fielding made five objections to the indictment.*^ * ♦ * 
 
 The fourth objection was, that the second count in the indictment 
 states a distinct offense, not arising out of, or connected with, the 
 charge in the first count. The charge in the first count was that the 
 bet was made with a colonel at Bath ; in the second, that it was with 
 Osmer, another of the defendants. This therefore should have been 
 the subject of another indictment. It is not like the ordinary case of 
 an indictment consisting of several counts, where they are only modi- 
 fications of the same oft'ense; for here is no mark of the entirety of 
 the offense. These offenses are distinct in their nature, and lead to 
 distinct punishments. But if a prisoner be indicted for two separate 
 offenses, he may be confounded in his defense, and the minds of the 
 jury distracted. In R. v. Roberts, Garth. 226, which was an informa- 
 tion against the defendant, who was a ferryman, for receiving divers 
 sums of money from different passengers, after a verdict of guilty, 
 the judgment was arrested; and Holt, G. J., said: "In every such in- 
 formation, a single offense ought to be laid ; they ought not to be ac- 
 cumulated under a general charge, because each offense requires a 
 separate punishment." This count, then, charging a distinct offense, 
 cannot be united with the first; neither can it be rejected as surplus- 
 age ; but it vitiates the whole indictment. * * * 
 
 BuLLER, J, * * * As to the remaining objection, that is 
 founded on a point which once embarrassed me a great deal. Some 
 years have elapsed since I looked into it, but I believe I can state pretty 
 accurately how it stands. In misdemeanors, the case in Burrows 
 shows that it is no objection to an indictment that it contains several 
 charees. The case of felonies admits of a different consideration; 
 but even in such cases it is no objection in this stage of the prosecu- 
 tion. On the face of an indictment every count imports to be for a 
 different offense, and is charged as at different times. And it does not 
 appear on the record whether the offenses are or are not distinct. But 
 if it appear before the defendant has pleaded, or the jury are charged, 
 that he is to be tried for separate offenses, it has been the practice of 
 the judges to quash the indictment, lest it should confound the pris- 
 oner in his defense, or prejudice him in his challenge of the jury; for 
 he might object to a juryman's trying one of the offenses, though he 
 might have no reason to do so in the other. But these are only mat- 
 
 *T Part of this case is omitted.
 
 112 THE INDICTMENT (Ch. 9 
 
 ters of prudence and discretion. If the judge, who tries the prisoner, 
 does not discover it in time, I think he may put the prosecutor to make 
 his election on which charge he will proceed. I did it at the last ses- 
 sions at the Old Bailey, and hope that, in exercising that discretion, I 
 did not infringe on any rule of law or justice. But if the case has 
 gone to the length of a verdict, it is no objection in arrest of judg- 
 ment. If it were, it would overturn every indictment which contains 
 several counts. So where the evidence affects several prisoners dif- 
 ferently, I have as was done by Mr. Justice Yates at Hereford, se- 
 lected the evidence as applicable to each, and left their cases separately 
 to the jury. And in a case which happened before me on the last 
 Spring assizes at Exeter, where two prisoners were indicted for mur- 
 der, and evidence given which pressed very hard on one prisoner, but 
 was not admissible against the other, I thought it the soundest way of 
 administering justice to sum up the evidence and take the verdict 
 against each separately. But all these are mere matters of discretion 
 only, which judges exercise in order to give a prisoner a fair trial; 
 for vv'hen a verdict is given, they are not the subject of any objection 
 to the record. 
 
 Judgment affirmed.** 
 
 SECTION 4.— AMENDMENTS 
 
 ODINGTON V. DARBY. 
 
 (Court of King's Bench, 1612. Bulst. 35.) 
 
 YeIvVERTon, Justice.*^ Two years since, two were indicted before 
 me at the assizes for felony, in case of life, and found guilty, and this 
 indictment was in the singular number; and this appearing so unto 
 me, I doubted whether the indictment was good or not, and so for this 
 cause I made stay thereof ; this afterwards I moved at the table to the 
 judges, eight or nine of them being present, to have their opinions 
 
 *8 In some states statutes forbid the joinder of different offenses in the 
 same indictment. See People v. De Coursey, 61 Cal. 134 (1SS2) ; State v. Mor- 
 ris, 45 Arlj. 62 (1S85). 
 
 "The English rule against the joinder of a felony and a misdemeanor In the 
 same indictment has been greatly modified by modem decisions. It would be 
 going too far to say now that it exists in any case, except it is where the 
 offenses are repugnant in their nature and legal incidents, and the trial and 
 judgment so incongruous as to tend to deprive the defendant of some legal 
 advantage. Rex v. Ferguson, 29 Eng. Law & Eq. 536; Burk v. State, 2 Har. 
 & J. (Md.) 426; Ilarman v. Commonwealth, 12 Serg. & R, GO; State v. 
 Hooker, 17 Vt. 658 ; State v. Boise, 1 McM. 190 ; Bex v. Galloway, 1 Moo. C. 
 C. 2.34 ; Whart Am. C. L. § 423." Agnew, J., In Henwood v. Commonwealth, 
 52 Pa. 424 (1866). See, further, post, c. 15. 
 
 40 Part of this case is omitted.
 
 Ch. 9) THE INDICTMENT 11:^ 
 
 herein, and by all of them clearly the indictment was good, this not- 
 withstanding, and well amendable, and so the same was accordingly 
 amended, and the parties afterwards were hanged for the felony. 
 
 ANONYMOUS. 
 (Upper Bench, 1654, Style, 433.) 
 
 Darcy moved that an endictment of Michaelmas term last might be 
 amended in the caption. But Roll, Chief Justice, answered: It can- 
 not be if it be of the last term, but had it been an endictment of this 
 term it might have been amended. 
 
 ANONYMOUS. 
 
 (Upper Bench, 1651. Style, 321.) 
 
 Letchmore moved the court that the word publicae might be put into 
 an indictment which was removed hither by certiorari. But The 
 Court answered it could not be; but because the indictment was of 
 another term, the clerk of the peace was fined at ilO. for his careless- 
 ness, and grosse oversight.''" 
 
 no Accord: As to material allegations. State v. McCarthy. 17 R. I. 370. 22 
 Atl. 282 (1891) ; State v. Chamberlain, 6 Nev. 257 (1871) ; People v. Trank, 
 88 App. Div. 294, 85 N. Y. Supp. 55 (1903). It is held in some states that the 
 court may amend the indictment in matters of form without the consent of the 
 grand jury and without an enabling statute. Hawthorn v. State, 56 Md. 530 
 (18S1). Contra: State v. Squire, 10 N. H. 558 (1S40). Statutes in some states 
 permit amendments in certain particulars. State v. Corbett, 12 R. I. 2SS 
 (1879) ; Rosenberger v. Commonwealth, 118 Pa. 77, 11 Atl. 7S2 (ISSS) ; Shiflett 
 V. Commonwealth, 90 Va. 386, 18 S. E. 838 (1894) ; Commonwealth v. Holley, 
 3 Grav (Mass.) 458 (1855). See, also, Reynolds v. State, 92 Ala. 44, 9 South. 
 398 (1S90). 
 
 "The fundamental question here is 'whether an information may be amended, 
 at common law, at the desire of the crown, after plea pleaded.' * * * Why 
 should it not be amended? • * ♦ There is a great difference between 
 amending indictments and amending informations. Indictments are found 
 upon the oaths of a jury, and ought only to be amended by themselves ; but 
 informations are as declarations in the king's suit. An officer of the crown has 
 the right of framing them originally, and may, with leave, amend, in like man- 
 ner as any plaintiff may do. If the amendment can give occasion to a new 
 defense, the defendant has leave to charge [change] his plea ; if it can make 
 no alteration as to the defense, he don't want it." Lord Mansfield, in Rex 
 T. Wilkes, 4 Burr. 2568, 2569 (1770^ 
 Mik.Cb.Pb.(Abridged Ed.) — 8
 
 114 THE INDICTMENT (Ch. 9 
 
 PEOPLE V. RODLEY. 
 
 (Supreme Court of Califoruia, 1900. 131 Cal. 240, 63 Pac. 351.) 
 
 Gray, C.'*^ The defendant was convicted of perjury, and sentenced 
 to imprisonment in tlie state prison for the term of 12 years. He ap- 
 peals from the judgment and from an order denying his motion for a 
 new trial. * * * 
 
 It appears that the grand jury made a partial report, and presented 
 a true bill against defendant for perjury on December 15, 1899, and 
 the clerk was directed by the court to file the same, and issue a bench 
 warrant thereon for the arrest of defendant ; and his bail was fixed at 
 the sum of $5,000. The jury then retired for further deliberation. 
 At 3 o'clock p. m. of the same day the grand jury returned into court, 
 and, after being called, the court stated and the jury responded as 
 follows: "The indictment which was presented this forenoon in the 
 case of The People of the State of California v. J. Ellis Rodley, De- 
 fendant, was resubmitted by the court to the grand jury from the dis- 
 trict attorney to correct an error that appeared upon the face of the 
 indictment, in this: that it appeared from the indictment presented 
 that the matter before the court at the time that J. Ellis Rodley was 
 sworn was a petition for letters testamentary in the estate of Alfred 
 Fuller, deceased, whereas the fact was, and it is in the kaowlpdgp ai. 
 the court, fhat the 'petition called for letters of administratio n with the_ 
 will annexed. O. Have you now, Mr. Foreman, the indictment cor- 
 rected in that respect? A. Yes. Q. Has it been submitted and voted 
 upon after correction? A. Yes. Q. And it is now returned to this 
 court as the correct indictment? A. Yes." 
 
 The clerk was thereupon directed to file the indictment, and that 
 the record show that it had been resubmitted. A bench warrant was 
 ordered to issue for the arrest of said J. Ellis Rodley, with bail fixed 
 at $5,000. It was upon the indictment as amended that the defendant 
 was arraigned, pleaded not guilty, and was thereafter tried. He was 
 not arraigned on the indictment prior to its amendment. It appears 
 from the foregoing that there must have been a variance between the 
 indictment as originally presented to the court and the evidence upon 
 which the indictment was found. 
 
 There is nothing in the law ihat will prevent the correction of a 
 mere mistake like this, the result, no doubt, of an inadvertence. The 
 defendant is injured in no way by the correction. "There is no doubt 
 that, with leave of the court, an indictment may be amended by the 
 grand jury at any time before the prisoner has pleaded, and before 
 they are discharged." Tiiomp. & M. Jur. p. 70 1-; Lawless v. State, 
 4 Lea (Tcnn.) 173; State v. Creight, 1 Brev. (S. C.) 1G9, 2 Am. Dec. 
 
 61 Part of this case Is omitted.
 
 Ch.9) 
 
 THE INDICTMENT 
 
 115 
 
 656. In the case of Terrill v. Superior Court, 127 Cal. XVIII, 60 Pac. 
 38, the question for determination was whether the court, after de- 
 murrer sustained to the indictment, could resubmit the case to the 
 same grand jury that had found the first indictment. It was held that 
 this could not be done under the Code provision cited therein ; but the 
 judge who delivered the opinion of the court in the course thereof re- 
 marked : "Perhaps, before the defendant has been arraigned, the in- 
 dictment could be withdrawn, and by leave of the court sent back to 
 the jury for amendment." This is what seems to have been done in 
 the present case, and we can see nothing in it prejudicial to any 
 right of defendant, and nothing of which he can be heard to com- 
 plain. * * * 
 
 Per Curiam. For the reasons given in the foregoing opinion, the 
 judgment and order are affirmed. 
 
 (IV 

 
 116 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 
 
 CHAPTER X 
 
 ARRAIGNMENT, PLEAS, AND MOTIONS 
 
 SECTION 1.— ARRAIGN^IENT AND PLEAS IN GENERAL 
 
 When the offender in treason or felony comes into court, or is 
 brought in by process, sometimes of capias, and sometimes of habeas 
 corpus directed to the gaoler of another prison, the first thing that fol- 
 lows thereupon, is his arraignment. * * * 
 
 Arraignment, therefore, is nothing else but the calling of the offen- 
 der to the bar of the court to answer the matter charged upon him by 
 indictment or appeal. * * * 
 
 The arraignment of a prisoner, therefore, consists of these parts: 
 
 1. The calling the prisoner to the bar by his name, commanding him 
 to hold up his hand, which though it may seem a trifling circumstance, 
 yet it is of importance, for by holding up his hand constat de persona 
 indictati and he owns himself to be of that name. 
 
 2. Reading the indictment distinctly to him in English, that he may 
 understand his charge. 
 
 3. Demanding of him whether he be guilty or not guilty; and if 
 he pleads not guilty, the clerk joins issue with him cul. prist, and en- 
 ters the prisoner's plea. Then he demands how he will be tried. The 
 common answer is, "By God and the country," and thereupon the clerk 
 enters po. se, and prays to God to send him a good deliverance. 
 
 But if the prisoner hath any matter to plead either in abatement, or 
 in bar of the indictment, as misnomer, auterfoits acquit, auterfoits con- 
 vict, a pardon, etc., then he pleads it without immediate answering to 
 the felony; but in some cases si trove ne soit, then to the felony not 
 guilty, de quo postea. And thus far what the arraignment is. * * * 
 
 A man is said to stand mute when, being arraigned for felony or 
 treason, either (1) he answers not at all, or (2) if he answers with 
 such matter as is not allowable for answer, and will not answer other- 
 wise, or (3) where he pleads not guilty, but when demanded how he 
 will be tried, either will say nothing, or not put himself upon the coun- 
 try. 
 
 If he stand mute and say nothing at all, in case of felony the court 
 ought ex officio to impanel a jury and swear it as an inquest of office 
 to inquire, whether he stand mute of malice, and if found so, he 
 shall have the judgment of peine fort et dure, or whether it be ex visi-
 
 Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 117 
 
 tatione Dei,* and, if found so, they are to inquire touching all those 
 points, which he might possibly plead for himself, as whether a felony 
 were done, whether he be the same person that is indicted for it, 
 whether he did it, and whether he hath any matter to allege for his 
 discharge. 
 
 But what if all this be found against the prisoner, what shall be 
 done? Whether judgment of death shall be given against him, though 
 he never pleaded, seems yet undetermined.^ 
 
 2 Hale, Pleas of the Crown, 216, 316. 
 
 FITZHARRIS' CASE. 
 
 (Court of King's Bencli, 1681. Vent. 354.) 
 
 Edward Fitzharris was indicted of High Treason; upon which be- 
 ing arraigned, and demanded to plead, he delivered in a Paper con- 
 taining a Plea to the Jurisdiction of the Court; which could not be 
 received (as the Court said), not being imder Counsel's Hand. 
 Whereupon he prayed to have Counsel assigned, and named divers, 
 whereof the Court assigned four. And he was taken from the Bar, 
 three or four Days being given him to advise with his Counsel, to pre- 
 pare his Plea as they would stand by him. 
 
 The Counsel prayed, that they might have a Copy of the Indictment. 
 
 But the Court denied it and said, That it was not permitted in Trea- 
 son, or any other capital Crimes. 
 
 But Justice DoLBEN said. That sometimes it had been allowed to 
 take Notes out of the Indictment. Vid. Mirror, 304. Abusion est que 
 Justices ne monstre ITndictment a les Indictes s'ils demandront. Sec- 
 tion 115. 
 
 And note, by St. 7 W. Ill, c. 3. Persons indicted of Treason where 
 Corruption of Blood is, are to have a copy of their Indictment five 
 Days before their Trial.' 
 
 HACK V. STATE. 
 
 (Supreme Court of Wisconsin, 1910. 141 Wis. 346, 124 N. W. 492.) 
 
 Wjnslqw, C. J.* The plaintiff in error (hereinafter called the de- 
 fendant) was convicted of selling whisky to a minor of the age of 13 
 years, and brings his writ of error to reverse the judgment. * * * 
 
 1 For procedure on arraignment of a dumb person, see Thompson's Case, 2 
 Lewin, G. C. 137 (1827). 
 
 2 It is now generally provided by statute that, on failure to plead, a plea 
 of not guilty shall be entered. Reg. v. Bernard, 1 Fost & F. 240 (ISGS) ; . 
 Commonwealth v. Place, 153 Pa. 314, 26 Atl. 620 (1893). 
 
 8 While, on arraignment, indictment should he read in full, yet, if the formal 
 concludins; part is omitted, it will not vitiate a sentence pronounced on a 
 plea of guilty. State v. Crane, 121 La. 1039, 46 South. 1009 (190S). 
 
 * Part of this case is omitted.
 
 lis ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 
 
 By a singular oversight the defendant was not formally arraigned 
 in the circuit court, and never pleaded to the information. An in- 
 formation in due form was filed; the jury was called and sworn; wit- 
 nesses for both the state and the defendant were examined and cross- 
 examined ; the jury was charged by the court, and rendered its ver- 
 dict, in all respects as though issue had been formally joined. Inas- 
 much as the information was valid, and the jury duly sworn and 
 charged w^ith the defendant's deliverance, he was put in jeopardy, so 
 that, had he been acquitted, he could not have been again prosecuted. 
 He knew perfectly well the offense with which he was charged, and 
 was allowed to make his defense just as fully and effectively as if a 
 plea of not guilty had been made, and the question now is whether the 
 inadvertent omission of arraignment and plea, which has not in the 
 least afifected any substantial right of the defendant, should be held 
 fatal to the judgment. 
 
 It is freely conceded that the early Wisconsin decisions answer this 
 question in the affirmative. Anderson v. State, 3 Pin. 367 ; Douglass 
 V. State, 3 Wis. 820 ; Davis v. State, 38 Wis. 487. See, also, Grain 
 v. U. S., 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097, where the au- 
 thorities are reviewed, and the doctrine contended for by the defend- 
 ant fully sustained by a divided court. 
 
 It must also be conceded that it is held by the Supreme Court of the 
 United States, in the Grain Gase, that arraignment and plea are es- 
 sential to due process of law, guaranteed to the citizen by the four- 
 teenth amendment. A state could not, therefore, pass a law providing 
 for trial without arraignment or plea; but that does not necessarily 
 affect the question whether a citizen may not effectually waive that 
 right. This court has held that constitutional rights may be waived 
 by the defendant, except, perhaps, in capital cases. Thus an accused 
 person has the absolute constitutional right to a trial by a jury, which 
 means a body of 12 competent jurymen, yet this court held, as early 
 as the case of State v. Vogel, 22 Wis. 471, that by not exercising his 
 right of challenge the defendant waived all objections to the quali- 
 fications of jurors, and a verdict of guilty would stand, notwithstand- 
 ing the fact that one of the jurors was an alien, and the further fact 
 that his alienage was not known to the defendant. * * * 
 
 No sound reason occurs to us why a person accused of a lesser crime 
 or misdemeanor, who comes into court with his attorney, fully advised 
 of all his rights, and furnished with every means of making his de- 
 fense, should not be held to waive a right or privilege for which he 
 does not ask, just as a party to a civil action waives such a right by 
 not asking for it. 
 
 Surely the defendant should have every one of his constitutional 
 rights and privileges, but should he be permitted to juggle with them' 
 Should he be silent when he ought' to ask for some minor right which 
 the court would at once give him, and then when he has had his trial, 
 and the issue has gone against him, should he be heard ta say there
 
 Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 119 
 
 is error because he was not given his right? Should he be allowed 
 to play his game with loaded dice? Should justice travel with leaden 
 heel because the defendant has secretly stored up some technical er- 
 ror, not affecting the merits, and thus secured a new trial because for- 
 sooth he can waive nothing? We think not. We think that sound 
 reason, good sense, and the interests of the public demand that the 
 ancient strict rule, framed originally for other conditions, be laid aside, 
 at least so far as all prosecutions for offenses less than capital are con- 
 cerned. We believe it has been laid aside in fact (save for the single 
 exception that trial by a jury of 12 cannot be waived unless authorized 
 by a specific law) by the former decisions of this court. It is believed 
 that this court has uniformly attempted to disregard mere formal er- 
 rors and technical objections, not affecting any substantial right, and 
 to adhere to the spirit of the law which giveth life rather than to the 
 letter which killeth. It may not always have succeeded ; it is intensely 
 human, but since the writer has been here he knows that the attempt 
 has been honestly made. * * * 
 
 Our conclusion is that the doctrine of Douglass v. State, supra, and 
 the cases following it, should be overruled. The principle now de- 
 clared is that the right of arraignment and plea will be waived by the 
 defendant by his silence when he ought to demand it, in all cases (ex- 
 cept capital cases) where it appears that he is fully informed as to the 
 charge against him, and is not otherwise prejudiced in the trial of the 
 case by the omission of that formality. Other Code states so hold. 
 People V. Osterhout, 34 Hun, 260 ; People v. Bradner, 107 N. Y. 1, 
 13 N. E. 87; State v. Cassady, 12 Kan. 550; State v. Straub, 16 
 Wash. Ill, 47 Pac. 227; Hudson v. State, 117 Ga. 701, 45 S. E. SG. 
 * * * 
 
 Judgment affirmed.^ 
 
 Kerwin, J., dissents. Timun, J. (dubitante). 
 
 We are now to consider the plea of the prisoner, or defensive mat- 
 ter alleged by him on his arraignment, if he does not confess or stand 
 mute. This is either: (1) A plea to the jurisdiction; (2) a demur- 
 rer; (3) a plea in abatement; (4) a special plea in bar; or (5) the 
 general issue. * * * Formerly there was another plea, now ab- 
 rogated, that of sanctuary.** * * * Formerly also the benefit of 
 clergy used to be pleaded before trial or conviction, and was called a 
 declinatory plea.'' * * * A plea to the jurisdiction is where an 
 indictment is taken before a court that hath no cognizance of the of- 
 
 6 See, also, Hast v. Territory, 5 Okl. Cr. 162, 114 Pac. 261 (1911), rape; 
 contra, People v. Heath (Colo.) 117 Pac. 138 (1911) ; State v. Drown (Vt.) 81 
 Atl. 641 (1911). Bv statutory provision in some states arraignment may be 
 waived. See State' v. Thompson, 95 Iowa. 464. 64 N. W. 419 (1895) ; People 
 V. Tower, 6?. Hnn, 624, 17 N. Y. Supp. 395 (1892) ; State v. Hoffman, 70 Mo. 
 App. 271 (1S97) ; State v. Brock, 61 S. C. 141, 39 S. E. 359 (1900). 
 
 « See 2 Pollock & Maitland's Hist. Eng. Law (1st Ed.) 588. 
 
 T See 1 Pollock & Maitland's Hist. Eng. Law (1st Ed.) 424 et seq.
 
 120 ARRAIGNMr.NT, PLEAS, AND MOTIONS (Ch. 10 
 
 fense. * * * A demurrer to the indictment. This is incident to 
 criminal cases as well as civil, when the fact alleged is allowed to be 
 true, but the prisoner joins issue upon some point of law in the in- 
 dictment, by which he insists that the fact, as stated, is no felony, trea- 
 son, or whatever the crime is alleged to be. * * * Some have 
 held (2 Hale, P. C. 257) that if, on demurrer, the point of law be ad- 
 judged against the prisoner, he shall have judgment and execution, as 
 if convicted by verdict. But this is denied by others (2 Hawk. P. C. 
 334), who hold that in such case he shall be directed and received to 
 plead the general issue, not guilty, after a demurrer determined against 
 him, which appears the more reasonable. 
 
 A plea in abatement is principally for a misnomer, a wrong name, 
 or false addition to the prisoner. 
 
 Special pleas in bar, which go to the merits of the indictment, and 
 give a reason why the prisoner ought not to answer it at all, nor put 
 himself upon his trial for the crime alleged. These are of four kinds : 
 A former acquittal, a former conviction, a former attainder, or a par- 
 don. 
 
 4 Black. Com. c. XXVI. 
 
 REGINA V. FADERMAN. 
 
 (Central Criminal Court, IS.jO. 3 Car. & K. 353.) 
 
 Demurrer. The prisoners were indicted at the Central Criminal 
 Court of the February session, 1850, and Mr. Justice Vaughan Wil- 
 liams stated the following case for the opinion of the Court for Crown 
 Cases Reserved: 
 
 "The prisoners were indicted under Stat. 1 Wm. IV, c. 66, § 19, 
 by which it is made a felony to engrave, etc. (without authority), on 
 any plate or on any wood, stone or other material, any bill of ex- 
 change, promissory note, undertaking or order for the payment of 
 money or any part of any bill of exchange, etc., of any foreign prince 
 or state, or knowingly to have in possession any plate, etc., so en- 
 graved, or to utter or to knowingly have in possession any paper on 
 which any part of such foreign bill, etc., shall be made or printed. 
 
 "The counsel for the prisoners demurred to the indictment, and the 
 demurrer having been argued, I gave judgment for the crown. But I 
 reserved the question as to the validity of the indictment (a copy of 
 which will accompany this statement) for the consideration of this 
 court. [Signed] Edw. Vaughan Williams." * 
 
 Alderson, B., now delivered the opinion of the [Central Criminal] 
 Court as to what judgment should be entered up on the demurrer. 
 His Lordship said: 
 
 The first question is whether this demurrer can be sustained, and 
 
 « The Court for Crown Cases Reserved held it had no .inrisdiction iu a 
 case in which .ludgment had been given on a demurrer and therefore gave 
 no judgment. The proceedings in that court are here omitted.
 
 Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 121 
 
 it is the unanimous opinion of the court that the demurrer must be 
 overruled, inasmuch as it appears to the court that many of the counts 
 in this indictment are clearly good ; and as one good count would be 
 sufficient to authorize a conviction and judgment, the court is clearly 
 of opinion that this demurrer, which goes to the sufficiency of the 
 whole indictment, must be overruled. A more important question re- 
 mains to be disposed of, which is as to what judgment this court ought 
 to pronounce on the demurrer being overruled. Whether the prisoners 
 are to be allowed to plead over? or whether final judgment should be 
 passed upon them as in the case of a conviction ? We have taken time 
 to .look into the authorities on the subject, and have taken consider- 
 able pains to ascertain what is the right course to be taken in this 
 case, and the result at which we have arrived is that the judgment must 
 be final, inasmuch as by a general demurrer, which this is, the pris- 
 oners confess all the material facts charged against them in the in- 
 dictment. In the case of a demurrer of a special nature, which is 
 usually called a demurrer in abatement, it may be otherwise ; and it 
 is very probable that the various dicta which occur in the books in 
 opposition to our present decision may be accounted for by this dis- 
 tinction not having been sufficiently attended to. 
 
 Parry, for the prisoner, asked that they might be allowed to with- 
 draw the demurrer, and plead not guilty. 
 
 Alde:rson, B. We cannot allow that, and I think that such a pro- 
 ceeding ought not to be encouraged. 
 
 On a subsequent day sentence was passed! on the prisoners." 
 
 9 Accord: Where the Indictment is for a misdemeanor. Wickwise v. State, 
 19 Conn. 477 (1S49) ; McCueu v. State. 19 Ark. 630 (1S5S). It is in the 
 discretion of the court, however, to allow the defendant to answer over. 
 Commonwealth v. Gloucester, 110 Mass. 500 (1872) ; State v. Wilkins. 17 Vt. 
 151 (1S4.J). It is generally said, in the cases in this country, that, while judg- 
 ment adverse to defendant on a demurrer to an indictment for a misdemeanor 
 is final, the like judgment on an indictment for felony must he respondeat 
 ouster. State v. Merrill, 37 Me. 329 (1S53) ; Commonwealth v. Foggy, 6 Leigh 
 (Va.) G38 (1836); McCuen v. State, 19 Ark. 630 (1858). In some states, by 
 statute, the right to plead over is secured to the defendant, even in cases 
 of misdemeanor. Thomas v. State, 6 Mo. 457 (1840). 
 
 "A plea of nolo contendere, when accepted by the court, is, in its effect 
 upon the ease, equivalent to a plea of guilty. It is an implied confession of 
 guilt only, and cannot be used against the defendant as an admission in any 
 civil suit for the same act. The judgment of conviction follows upon such 
 a plea, as well as upon a plea of guilty, and such plea, if accepted, cannot 
 be withdrawn, and a plea of not guilty entered, except by leave of court. 
 But there is a difference between the two pleas, in that the defendant cannot 
 plead nolo contendere without the leave of the court. If such plea is ten- 
 dered, the court may accept or decline it in its discretion." Morton, C. J., 
 in Commonwealth v. Ingersoll, 145 Mass. 381. 14 N. E. 449 (1887). 
 
 In some states statutes provide that in capital cases the plea of guilty shall 
 not be received. State v. Genz, 57 N. J. Law, 459, 31 Atl. 1037 (1895). 
 
 "By a plea of guilty the defendant confesses himself guilty in manner and 
 form as charged in the indictment ; and if the indictment charges no offense 
 against the law, none is confessed." McEnery, J., in State v. Watson, 41 La. 
 Ann. 599, 7 South. 126 (1889).
 
 122 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 
 
 SECTION 2.— NOLLE PROSEQUI AND MOTION TO QUASH 
 
 * STATE V. SMITH. 
 
 (Supreme Judicial Court of New Hampshire, 1S70. 49 N. H. lo5, G Am. 
 
 Kep. 4S0.) 
 
 Five indictments were found March term, 1869, against Willard 
 Sniith, three of them for selling liquor, one for keeping liquor for 
 sale, and one for being a common seller. At March term, 1869, re- 
 spondent pleaded "not guilty." At the September term, the sohcitor 
 stated that he believed that the respondent had ceased the sale of 
 liquor, and that he had arranged with respondent's counsel that, if 
 the respondent pleaded nolo contendere to all the indictments, the state 
 would at this time move for sentence on only one indictment, reserv- 
 ing the right to bring forward the other indictments and move for 
 sentence if the respondent should, in future, violate the liquor law. 
 Thereupon Peter Sherman moved for leave to appear and prosecute 
 the indictments, alleging that he was the complainant, and entitled to 
 half the fines, and that respondent has not ceased the sale of liquor. 
 Sherman also moved that, if necessary, to entitle him to appear, or to 
 receive half the fine, the indictments might be so amended as to aver 
 that he was the complainant. The solicitor and the respondent both 
 objected. 
 
 For the purpose of allowing the questions thus arising to be re- 
 served, it was ruled pro forma, and subject to exception, that Sher- 
 man's motions should be granted, if it should hereafter be made to 
 appear, by proper proof, that he was complainant. 
 
 Case reserved. 
 
 Nesmith, J.^° No question is made, by the counsel on either side, 
 as to the general discretionary power of the prosecuting officer, in this 
 state, to enter a nolle prosequi in ordinary indictments instituted in the 
 name of the state. This power such officer exercises virtute of- 
 ficii, frequently before a jury is impaneled, and sometimes while the 
 case is on trial before the jury, with the consent of the respondent, 
 and sometimes after a verdict is rendered against the prisoner. 
 
 It may be that the prosecuting officer finds his indictment defective 
 in form or substance, and that he may wish to procure a better one, or 
 he may discover that the evidence will not sustain the charge as al- 
 leged, and a change may be requisite to conform to the actual proof. 
 There may be various reasons for discontinuing the prosecution, all 
 which he must determine, being controlled by well-settled principles 
 of law and practice, and a sound legal discretion. It is not to be pre- 
 sumed that this officer will voluntarily consent to any discontinuance 
 which will materially injure the rights of the prisoner, or that he will 
 
 10 Part of this case is omitted.
 
 Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 123 
 
 violate knowing-ly his official trust, or in any way act corruptly or op- 
 pressively. 
 
 Generally, whether a jury shall be impaneled, or not, depends upon 
 the determination of the prosecuting officer; but, when a jury is or- 
 ganized and the trial commences, the respondent then acquires new 
 rights, which the qourt will protect. It may be regarded as the re- 
 spondent's right to have the jury pass upon the facts of his case, be- 
 cause their verdict becomes a bar to another indictment for the same 
 ofifense, and a nolle prosequi will not thus operate for the prisoner's 
 benefit. Therefore, in this state of the proceedings, the prisoner hav- 
 ing a right to insist upon a verdict upon the whole evidence of the 
 case, of course, there can be no discontinuance of the prosecution ex- 
 cept upon the prisoner's express consent. ^^ 
 
 These elementary principles are discussed in Aaron Burr's Trial, 
 seriatim; also in Commonwealth v. Tuck, 20 Pick. 365, and other 
 cases cited by respondent's counsel. In the latter case. Chief Justice 
 Shaw claims the power to the Attorney General, or other prosecuting 
 officer, to enter a nolle prosequi after verdict against the prisoner, and 
 says such a practice has prevailed for many years, and is found highly 
 useful to the due administration of the criminal law. It may be ascer- 
 tained that the party convicted may still be innocent. It may become 
 important to use him as a witness against more flagrant offenders. 
 The power to enter a nolle prosequi exists in the prosecuting officer. 
 He exerts it upon his official responsibility. The court has no right 
 to interfere in its exercise. They can only judge of the effect of the 
 act, when done, or of the legal consequences which may follow from 
 it. The court will take care that it shall not operate to the prejudice of 
 the respondent's rights. Commonwealth v. F. O. J. Smith, 98 Mass. 
 10 ; 1 Chitty's Crim. Law, 479 and 845. 
 
 The counsel for the prosecutor, Sherman, claims the right for his 
 client to interfere with the practice of the sohcitor in this particular 
 case, and asked for leave of the court to be granted to him to appear 
 and prosecute these indictments. Under a fair construction of sec- 
 
 11 Accord: Commonwealth v. Scott. 121 Mass. 33 (1S76). But see State v. 
 Roe. 12 Vt. 93 (1S40) ; Wilson v. Commonwealth, 3 Bush (Ky.) 105 (1S67). 
 
 "Any part of a count, which is In its natiire severable from the rest, may be 
 removed by nolle prosequi, and the remainder stand." Peters, C. J., in State 
 V. Bean, 77 Me. 487 (ISSo). 
 
 "a''he power of the court to order the representative of the state to enter 
 a nolle prosequi upon an indictment presents a different question. At the 
 common law only the Attorney General could exercise this power, and in 
 doing so was bevond the power or control of the court. 1 Arch. Cr. Plead. 
 (Pomeroy's Notes) 316 ; People v. McLeod. 1 Hill [N. T.] 377 [37 Am. Dec. 32S1 ; 
 State v. Graham, 41 N. J. Law, 15 [32 Am. Rep. 174]." Knapp, J., in State 
 V. Hickling, 45 N. J. Law. 154 (1883). 
 
 "There seems no good reason why the motion of the attorney for the gov- 
 ernment (to strike off an entry of nol. pros, from the docket) should not 
 have been granted, and in granting it the court took especial care that the 
 prisoner should not suffer therefrom in his defense." Appleton, J., in State 
 V. Nutting, 39 Me. 362 (1855). 
 
 Accord: Parry v. State. 21 Tex. 746 (1858). But see Henry v. Common- 
 wealth, 4 Bush (Ky.) 427 (18G8) ; Kistler v. State, 64 Ind. 371 (1878).
 
 124 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 
 
 tion 21 of chapter 99 of the General Statutes, we think it was the 
 clear intent of the Legislature to give him, who might volunteer to 
 prosecute for the violations of the law embraced in this chapter, a 
 bounty or a reward equal to one-half the fines that should be collected 
 by means of such prosecutions. As the statute in this case prescribes 
 no new mode of proceeding under it, in order to establish the right of 
 the complainant to recover his bounty, it must be presumed that he 
 must obtain his remedy according to the ordinary rules of practice, as 
 known in our courts. It therefore cannot be presumed that the com- 
 plainant can come into court, and oppose the predetermined action of 
 the prosecuting officer, or that he can set up his will as superior to 
 the fiat of the officer. Such a practice would introduce confusion into 
 this department of the law. An attempt of the kind indicated by the 
 prosecutor's motion was lately made in the Court of the Queen's 
 Bench, in England, and failed there for the reasons suggested by the 
 justices of that court. Regina v. Allen, 1 Best & Smith, 101 (Eng. 
 C. L. Reports, 854). • * * 
 Motion denied. 
 
 PEOPLE V. DAVIS. 
 (Court of Appeals of New York, 1874. 56 N. Y. 95.) 
 
 Grover, J.^2 The indictment charged the commission of the crime 
 at the town of Brookfield, in the county of Madison, and within 500 
 yards of the boundary line between the county of Otsego and the 
 county of Madison. The counsel for the accused moved to quash it 
 because the crime was not charged to have been committed in the 
 county of Otsego. * * * 
 
 The counsel for the prisoner also excepted to the denial of his mo- 
 tion to quash the third count, or to compel the prosecutor to elect upon 
 which offense therein charged he would proceed. The denial of this 
 motion was not the proper subject of an exception. The accused has 
 not a legal right to have the sufficiency of an indictment, or of any 
 count therein, determined upon motion to quash or set it aside, or to 
 put the prosecutor to an election, when more than one offense is 
 charged, upon which he will proceed. It is in the discretion of the 
 court whether or not to set aside a defective indictment upon motion ; 
 and unless the question is free from doubt, the court ought not to do 
 it, but leave the counsel to his demurrer, or motion in arrest of judg- 
 ment. ♦ * * 
 
 12 Part of this case is omitted.
 
 Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 125 
 
 STATE V. RIFFE. 
 
 (Supreme Court of Appeals of West Virginia, 1877. 10 W. Va. 794.) 
 
 Moore, Judg'e, delivered the opinion of the court.^^ 
 
 An indictment was found in the circuit court of Monroe county 
 against A. L. Riffe for selling spirituous liquors without license. On 
 the 18th October, 1872, the defendant appeared and plead not guilty; 
 and on the 16th October, 1874, defendant again appeared, and moved 
 the court to quash said indictment, which motion was sustained, and 
 the defendant discharged. Thereupon the state petitioned for and 
 obtained from this court a writ of error, and in that way presents 
 the case for the adjudication of this court upon two alleged grounds 
 of error. * * * 
 
 It was error to quash the indictment, for the reason that the mo- 
 tion came too late ; the defendant having long before plead to the in- 
 dictment. * * * 
 
 As to the question that the motion to quash was made after the 
 plea had been entered : The proper course is to move to quash before 
 pleading, but the court may, at any time before the trial upon the 
 plea, permit the plea to be withdrawn, and enter the motion to quash, 
 at the instance of the defendant. 
 
 The judgment of the circuit court should be reversed, with costs to 
 the state against the defendant, and the case remanded to the circuit 
 court, to be proceeded in according to the principles enunciated in this 
 opinion, and further according to law. 
 
 Judgment reversed and case remanded. 
 
 SECTION 3.— PLEA OF FORMER JEOPARDY 
 
 If they [the jurors] declare upon their oaths that they know nothing 
 of the fact, let others be called who do know it, and if he who put him- 
 self on the first inquest will not put himself on a new jury, let him be 
 remanded back to penance till he consents thereto. 
 
 Britton (Nichol's Trans.) lib. 1, 12 b. 
 
 It is a good plea on appeal or indictment of felony to say that he 
 was formerly arraigned for the same felony before such justices, &c., 
 
 13 The arguments of counsel and parts of the opinion are omitted.
 
 126 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 
 
 and acquitted, and to vouch the record ; for he is not required to have 
 the record in hand, for this plea is not a dilatory plea, but a plea in 
 bar, as appears, tit. Coron. in Fitz. P, 232. M. 20 E. 2. &c., such plea 
 is a good bar, because a man by the common law should not put his 
 life twice in jeopardy of trial for the same felony, except it be in some 
 special case, of which I will speak hereafter. But note that it ought to 
 be the same offense, for otherwise his plea is not to the purpose, and 
 therefore if two men are indicted of felony as principals, and then by 
 another indictment it is found that one committed the felony and the 
 other only feloniously received him after the felony was committed, 
 and upon the first indictment both are arraigned and acquitted, and 
 then he who is indicted as accessory is arraigned, and he pleads that 
 he was formerly acquitted as above, this plea should not discharge 
 him, because it is not the same offense, but a different one, for it is 
 done on different days, which see titulo Corone in Fitz. P. 200 ; anno 
 27 lib. ass. P. 10, and H. 8. H. 5. P. 493. But if he was indicted as 
 an accessory before the offense committed, this acquittal of him as a 
 principal should discharge him of this offense also, for it is in manner 
 one offense although it is done on several days, for when the felony is 
 committed by force of command or abetment the one who commands 
 in such case is a party to the principal felony. But it is otherwise with 
 the accessory after the felony committed, and with this agrees Bracton. 
 Staunford, P. C. lib. 2, c. 36, p. 105. 
 
 If a man be acquitted on an appeal or upon the indictment, although 
 there be error in the process, the acquittal is good. But it is different 
 where the appeal or the indictment was not sufficient, etc. 
 
 Ji'itz. Corone, fol. 259, pi. 444. 
 
 HUTCHINSON'S CASE. 
 
 (Court of King's Bench, 1677. 1 Leach, C. C. 135. note.) 
 
 Air. Hutchinson, who had killed Mr. Colson in Portugal, was ac- 
 quitted there of the murder; and being afterwards apprehended in 
 England for the same fact, and committed to Newgate, he was brought 
 into the Court of King's Bench by habeas corpus, where he produced 
 an exemplification of the record of his acquittal in Portugal ; but the 
 king being very willing to have him tried here for the same offense, it 
 was referred to the consideration of the judges, who all agreed that, 
 as he had been already acquitted of the charge by the law of Portugal, 
 he could not be tried again for it in England.^* 
 
 1* P.nt an aoqTiittiil by a court-martial is no bar to a subsequent prosecution 
 before a court of law. "in re Fair (C. C.) 100 Fed. 149 (1000). So an act may 
 offend against the law of more than one jurisdiction, in which case a cou-
 
 Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 127 
 
 JONES AND BEVER'S CASE. 
 
 (Court of King's Bench, 1GG5. Kelyng, 52.) 
 
 At the Gaol-delivery in the Old Baily, 19 February, 1665, John 
 Jones and Philip Bever, were indicted for Burglary for breaking the 
 King's House at Whitehall, and stealing from thence the Goods of 
 the Lord Cornbury, and were found not Guilty. And after were in- 
 dicted for the same Burglary, and stealing the Goods of Mr. Nunnesy. 
 And we agreed that they being once acquitted for the Burglary, could 
 not be indicted again for the same Burglary, but might be indicted for 
 stealing the Goods of Mr. Nunnesy according as it was formerly re- 
 solved in Turner's Case. Vide Kelyng, 30, . But in this case when we 
 saw the Evidence not sufficient to prove the stealing of my Lord Corn- 
 bury's Goods, we might have discharged the jury and so taken no 
 V^erdict;^^ and then he might have been indicted for that Burglary, 
 and steahng the Goods of Mr. Nunnesy. 
 
 REX V. JANE D . 
 
 (Court of King's Bench, 1G70. Vent. G9.) 
 
 She was indicted for stealing of several things, and pleaded not 
 guilty, and a jury sworn to try her; the witnesses, not appearing, were 
 suspected to be tampered with by the prisoner; and the jury were 
 discharged, and the trial put off.'** Vide 1 Inst. 227, b, contra. 
 
 Tlction or acquittal In one jurisdiction is no bar to a prosecution in the other. 
 State V. Norman, 16 Utah, 457, 52 Pac. 9S6 (1S9S) ; State v. Reid, 115 N. a 
 741, 20 S. E. 468 (1894). Compare People v. Haurahau, 75 Mich. Gil, 42 X. 
 W. 1124, 4 L. R. A. 751 (1889). The constitutional provision against double 
 jeopardy does not apply to a contempt proceeding. Jones v. Mould, 151 Iowa, 
 599, 132 N. W. 45 (1911). 
 
 15 "By the ancient law if the jury sworn had been particularly charged 
 with a prisoner, as before is showed, it was commonly held * ♦ * they 
 could not be discharged before their verdict given up. * * * But nothing 
 is more ordinary than after the jury sworn, and charged with a prisoner, and 
 evidence given, yet if it appear to the court that some of the evidence is 
 kept back, or takgn off, or that there may be a fuller discovery, and the of- 
 fense-notorious, as murder or burglary, and that the evidence, though not 
 sufBcient to convict the prisoner, yet gives the court a great and strong 
 suspicion of his guilt, the court may discharge the jury of the prisoner." 2 
 Hale. P. C. 295. 
 
 "Nor is it now a question, nor, I hope, will it ever be a question again, 
 whether in a capital case the court may, in their discretion, discharge a jury 
 after evidence given and concluded on the part of the crown, merely for 
 want of sufficient evidence to convict, and in order to bring the prisoner to 
 a second trial." Foster, J., in Kinloch's Case, Foster, C. L. 30 (174G). See, 
 also. Revnolds v. State. 3 Ga. 53 (1847). Compare People v. Ny Sam Chung. 
 94 Cal. 304, 29 Pac. &42. 28 Am. St. Rep. 129 (1892) ; State v. Richardson, 47 
 S. C. 166. 25 S. E. 220, 35 L. R. A. 238 (1896) ; Pizano v. State, 20 Tex. App. 
 139, 54 Am. Rep. 511 (ISSG). 
 
 16 Accord: "SVhere juror fraudulently procures himself to be impaneled..
 
 123 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 
 
 ANONYMOUS. 
 
 (Assizes, 1351. Lib. Ass. 122, pi. IG.) 
 
 An indictment for the death of W. White at N. and he alleg-es a 
 record by which it appeared formerly he was acquitted of the death of 
 W. D. at E. and said that this was the same person, and now offers the 
 record, &c. And other witnesses say that it was the same person. 
 Wherefore it was adjudged that he be acquit, &c.^' 
 
 STATE V. BENHAM. 
 
 (Supreme Court of Errors of Connecticut, 1S29. 7 Conn. 414.) 
 
 WiLUAMS, J.^* The statute, upon which this information is found- 
 ed, enacts: "That if any person shall have in possession, or receive 
 from any other person, any forged or counterfeited promissory note 
 or bill, for the payment of money, with intention to utter or pass the 
 same, or to permit, cause or procure the same to be uttered or passed, 
 with intention to defraud any person, or body politic or corporate, 
 knowing the same to be forged or counterfeited; every such person, 
 so offending, being thereof duly convicted, shall suffer imprisonment," 
 etc. St, 157, tit. 23, § 35. The prisoner had in his possession, at one 
 time, several bank notes or bills of different banks, which were taken 
 from him at one time. He has been tried for having one of them in 
 his possession, and convicted; and the question now is, whether he 
 can be again tried and convicted for possessing each of the other notes 
 of the different banks, which he had at that time. In other words, is 
 
 State V. Washington, 89 N. C. 535, 45 Am. Rep. 700 (18S3). Where a juror 
 becomes too ill during the trial to attend. Gardes v. U. S., 87 Fed. 172. 30 C. 
 C. A. 596 (1898). Where the jury is discharged with consent of defendant. 
 State V. Allen, 46 Conn. 531 (1879). Where defendant himself has made it 
 impossible for a valid verdict to be rendered, or a valid judgment entered 
 against him. People v. Higgius, 59 Cal. 357 (1881). See, also, Simmons v. U. 
 e., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 9G8 (1891). 
 
 When defendant obtains a new trial after a conviction of manslaughter, 
 or of murder in some degree less than that of which he might have been con- 
 victed on ^n indictment for murder, the authorities are in conflict on the 
 question whether the conviction of manslaughter was an acquittal of the 
 murder, so as to bar a subsequent indictment for murder on the same facts. 
 See, for the affirmative. People v. McFarlane, 138 Cal. 481, 71 Pac. 568, 72 
 Pac. 48, 61 L. R. A. 245 (1903) ; Rolls v. State, 52 Miss. 391 (18TG) ; State 
 V. Belden, 33 Wis. 120, 14 Am. Rep. 748 (1873). Contra: Reg. v. Tancock, 13 
 Cox C. C. 217 (1S7G) ; Waller v. State, 104 Ga. 505, 30 S. E. S35 (1898) ; State 
 v. Bradley, 67 Vt 4G5, 32 Atl. 238 (1894); State v. Behimer, 20 Ohio St. 
 572 (1870). 
 
 17 "If the prisoner be now arraigned of a felony by the name of A. B. (by 
 which name, as also by the name of A. C, he Is well enough known), then 
 may he say that he was before time acquitted of the same felouie. before 
 Buch or such justice, by the name of A. B., averring that he is the same 
 person and that he is known by the one and the other calling. Lib. Ass. 20, 
 pi. 15 & 11 II. 4, 93." Lamb. Eireuar. 5.35. 
 
 18 The statement and the arguments of counsel are omitted.
 
 Ch. 10) ARRAIGNMENT, PLEAS, AND MOTIONS 129 
 
 the possession of each bill or note, holden at one and at the same time, 
 a distinct offense, and punishable as a distinct crime? 
 
 Until the late revision of our statutes, it was not punishable by stat- 
 ute to have in one's possession forged notes or counterfeited coin. 
 The offense consisted in uttering or putting them off. Now the pos- 
 session is punishable in the same manner as the offense of uttering 
 them is. But it cannot be supposed that the Legislature intended to 
 punish the offense of possessing such bills or notes, or coin, more 
 severely than the crime of putting them off ; or that they should pun- 
 ish the man. who barely intended to defraud, but had not yet offered 
 to, more severely than the one who had put that intent into execution. 
 And if Benham had put off these two notes to one person, at one time, 
 it cannot be claimed that he could be convicted of more than one of- 
 fense. And yet it is claimed that having them in his possession, al- 
 though he has never offered to put them off, he may be punished for 
 more than one offense. 
 
 In support of this it is said that the notes are issued by different 
 banks, and the intent charged is to defraud the two different banks 
 specified, viz., the Troy Bank and the Mechanics' Bank, as well as the 
 persons to whom the notes might be put off. If a charge of defraud- 
 ing the several banks constitutes two distinct offenses, then the offense 
 of uttering these two notes to the same person, at the same time, would 
 be two offenses ; because the intent might properly be charged as an 
 intent to defraud each of the banks, as well as the persons to whom 
 they were put off. 
 
 But, as in that case, the putting off a note, with intent to defraud 
 the persons to whom it was put off, would be sufficient to convict, 
 whether there was any attempt to defraud the bank or not, as was re- 
 cently decided in England, by the twelve judges; so in this case, as 
 it is charged in both informations that the intention was to defraud 
 the persons to whom the notes might be put off, that would be suffi- 
 cient to justify the conviction; and all that is necessary to constitute 
 the identity of the offense is that the same evidence would convict. 
 Here the same evidence of possession exists in both cases ; the same 
 general attempt to defraud the persons to whom they may be passed. 
 The act of possessing the several notes, then, must be one and the 
 same offense, as much as the act of stealing a number of articles, at 
 the same time and place. 
 
 It was admitted in argument that he who had counterfeit coins in 
 his possession could not, under the thirty-second section, be punished, 
 as for distinct offenses, for each piece of counterfeit coin he might 
 have. The offense is, certainly, of the same character with this; and 
 it is difficult to believe that the Legislature intended to punish them 
 in so different a manner. It is true that in that section the statute 
 speaks of gold and silver coins ; but it will hardly be contended that 
 if a person has a single counterfeit eagle in his possession, with in- 
 tent to pass it knowing that it is counterfeit, he is not within the stat- 
 Mik.Ce.Pe.(Abridged Ed.) — 9
 
 130 ARRAIGNMENT, PLEAS, AND MOTIONS (Ch. 10 
 
 ute. The difference in phraseology, therefore, it is believed, will make 
 no difference in the construction. The object of the Legislature, in 
 both cases, is to prevent a person from altering or having in his pos- 
 session base money. And it has been decided that a person indicted for 
 stealing nine one pound notes, may be convicted upon proof of steal- 
 ing only one. Rex v. Johnson, 3 Mau. & Selw. 539, 548 ; Rex v. Clark, 
 1 Brod. & Bing. 473. There the substance of the offense is stealing 
 notes ; here the substance of the offense is having in possession coun- 
 terfeit bills or notes. The number may add to the evidence of guilt, 
 but not to the number of the offenses. In an action for the penalty 
 for insuring tickets in the lottery, where ten tickets were insured at 
 one and the same time. Lord Kenyon held that but one penalty could be 
 recovered. Holland q. t. v. Duffin, Peake's Ca. 58. 
 
 This information might have specified each note which the prisoner 
 had in his possession, as was done in several cases cited in King v, 
 Sutton, Ca. tem. Hardw. 372. Had that been done, it would hardly be 
 claimed that there could have been several punishments. The offense, 
 then, is one and the same offense. 
 
 Another objection was made to the plea, but not much insisted on, 
 that, if this is the same offense, it is not pleaded so as to avail the de> 
 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 14<J 
 
 The judgment of this court is that the judgment of the circuit court, 
 so far as it concerns the appellant, William Da^Ykins, be reversed, and 
 that the case be remanded to that court for a new trial as to said Wil- 
 liam Dawkins.* 
 
 COMINIONWEALTH v. TUB IN. 
 
 (Supreme Judicial Court of Massachusetts, Suffolk, 1878. 125 Mass. 203, 28 
 
 Am. Rep. 220.) 
 
 Indictment for manslaughter. After verdict of guilty in the supe- 
 rior court, the defendant, on the same day, moved to set aside the ver- 
 dict. * * * 
 
 Gray, C. J.' By the law of England, in cases of felony, the only 
 verdict allowed was a public verdict pronounced by the foreman in 
 open court, and in the presence of the prisoner. In prosecutions for 
 misdemeanors, and in civil cases, although the jury were permitted 
 to separate upon giving a privy verdict orally to the judge out of 
 court, yet such verdict was of no force unless afterwards affirmed by 
 an oral verdict given publicly in court, and the only effectual and legal 
 verdict was the public verdict. 3 Bl. Com. 377; 4 Bl. Com. 3G0 ; 1 
 Chit. Crim. Law, 635, 636. 
 
 In this country, by way of substitute for a privy verdict, and to at- 
 tain the same end of allowing the jury to separate after they have 
 come to an agreement, a practice has been adopted in civil actions, 
 and in cases of misdemeanors, at least, if not of all but capital crimes, 
 of directing the jury, if they should agree during the adjournment 
 of the court, to sign and seal up their finding, and come in and affirm 
 it at the next opening of the court; but the verdict which determines 
 the rights of the parties, and is admitted of record, and upon which 
 judgment is rendered, is the verdict received from the lips of the fore- 
 man in open court. When the jury have been permitted to separate 
 after agreeing upon and sealing up a verdict, there is this dift'erence 
 between civil and criminal cases: In a civil action, if the written ver- 
 dict does not pass upon the whole case, or the jury refuse to affirm it, 
 the court may send them out again, and a fuller or different verdict 
 afterwards returned will be good. But, in a criminal case, the oral 
 verdict pronounced by the foreman in open court cannot be received, 
 unless it is shown to accord substantially with the form sealed up by 
 the jury before their separation. Lawrence v. Stearns, 11 Pick. 501 ; 
 Pritchard v. Hennessey, 1 Gray, 294; Commonwealth v. Townsend, 
 
 4 After the jury has been discharged, it is too late for a juror to say he 
 did not assent to the verdict Mercer v. State, 17 Ga. 146 (1855). 
 
 "Under our statute the verdict must be in writing; but this does not dis- 
 jiense with the requirements that the names of the jurors shall be called to 
 ascertain that they are all present, axid that they shall be asked if they all 
 assent to the verdict." Maxwell, G. J., in Longfellow v. State, 10 2\eb. 105, 
 4 N. W. 420 (1S80). 
 
 6 Part of this case is omitted.
 
 150 VERDICT (Ch. 12 
 
 5 Allen, 216; Commonwealth v. Durfee, 100 Mass. 146; Common- 
 wealth V. Carrington, 116 Mass. 37 ; Dornick v. Reichenback, 10 Serg. 
 
 6 R. (Pa.) 84; Lord v. State, 16 N. H. 325, 41 Am. Dec. 729. * * * 
 In the case at bar, after the jury, upon their return into court, had 
 
 been asked whether they had agreed upon their verdict, and the fore- 
 man had answered that they had, the form of verdict which had been 
 signed and sealed up before the jury separated was silently delivered 
 by the foreman to the clerk, and was opened and read by the clerk to 
 the jury. The clerk thereupon told the jury (in the words accustomed . 
 to be used after a verdict has been pronounced by the foreman and 
 minuted by the clerk) to hearken to their verdict as the court had re- 
 corded it. And the bill of exceptions states that "the above is all that 
 
 was said." 
 
 In Commonwealth v. Carrington, already cited, upon which the At- 
 torney General principally relies, the bill of exceptions stated that, 
 before the verdict was recorded, the clerk asked the jury if their ver- 
 dict was that the defendant was guilty, to which they assented; and, 
 although the precise form in which such inquiry and response were 
 expressed was not set forth in the bill of exceptions, it was assumed, 
 both by the counsel and by the court, that an oral verdict had been 
 returned in due form, if any such verdict could be received after the 
 jury had separated and had brought in a sealed verdict. 
 
 But, in the present case, it distinctly appears that when the clerk 
 told the jury to hearken to their verdict as recorded, no legal or ef- 
 fectual verdict had been returned by the jury, and they had not been 
 asked, nor in any form of words orally and publicly stated, what their 
 verdict was, and that, after they had been told that a verdict of guilty 
 had been recorded, they simply said nothing. A verdict which has 
 never been spoken by the jury cannot be implied from the mere omis- 
 sion of the jury to contradict the statements of the clerk, or from 
 the silence of the prisoner and his counsel. 
 
 The verdict received and recorded by the court not being a legal 
 verdict, it was the right of the defendant, upon his motion filed on the 
 same day, to have it set aside. The order of the superior court, over- 
 ruling this motion and denying him this right, was a decision upon a 
 question of law which could not have been raised before verdict, and 
 was therefore a proper subject of a bill of exceptions. Gen. St. c. 115, 
 § 7. * * * 
 
 Exceptions sustained.
 
 Ch. 12) VERDICT 151 
 
 HUNTER V. COMAIONWEALTH. 
 
 (Supreme Court of Pennsylvania, 1S75. 79 Pa. 503, 21 Am. Rep. S3.) 
 
 Mr. Justice Paxson delivered the opinion of the court, November 
 15, 1875.« 
 
 The plaintiff in error was indicted for a felonious assault. The 
 jury convicted him of assault. A motion in arrest of judgment vv^as 
 made, which was overruled by the court below, and judgment entered 
 on the verdict. This is assigned here for error. 
 
 The record presents the single question whether, upon an indict- 
 ment charging a felony, the jury may acquit of the felony, and con- 
 vict of the constituent misdemeanor. We are in no doubt as to the 
 rule at common law. It was long held in England that upon an in- 
 dictment for a felony there could be no conviction for the minor offense 
 of misdemeanor. Rex v. Cross, 1 Ld. Raym. 711, 3 Salk. 193 ; 2 
 Hawk. c. 47, § 6; 1 Chit. C. L. 251, 639. The reason of the rule was 
 that persons indicted for misdemeanors were entitled to certain ad- 
 vantages at the trial, such as the right to make a full defense by coun- 
 sel, to have a copy of the indictment, and a special jury, privileges not 
 accorded to those indicted for a felony. It is apprehended these rea- 
 sons no longer exist in England — at least not to the extent they did 
 formerly, for by St. 1 Vict. c. 85, § 11 (Lord Denman's act), the rule 
 itself has been abolished, and now upon a bill charging a felony a 
 conviction may there be had for a constituent misdemeanor. It is clear 
 that the reason of the rule has no application in this state. On the 
 contrary, the advantages, if any, upon the trial, are all in favor of those 
 charged with a felony. By the merciful provisions of our criminal 
 law, the higher and more atrocious the crime, the more numerous are 
 the safeguards thrown around the accused, and the more jealously 
 does the law guard every legal right to which he is entitled. 
 
 The rule in other states of this country is by no means uniform. It 
 is said by Mr. Wharton, in his work on Criminal Law (section 400), 
 that the old common-law rule is still followed in Massachusetts, Indi- 
 ana, and Maryland ; while in New York, Vermont, New Jersey, Ohio, 
 North Carolina, South Carolina, and Arkansas it has been held that, 
 the reason of the English rule having ceased, the rule itself ceases, in 
 obedience to the maxim "Cessante ratione legis cessat ipsa lex." 
 
 * 
 
 The general rule is well settled that, upon an indictment charging 
 a particular crime, the defendant may be convicted) of a lesser oft'ense 
 included within it. Thus upon an indictment for murder the prisoner 
 may be convicted of manslaughter; a person charged with burglary 
 may be convicted of larceny, if the proof fail of breaking and enter- 
 ing; a person charged with seduction may be convicted of fornica- 
 
 6 Part of thi.« case is omitted.
 
 152 VERDICT (Ch. 12 
 
 tion (Dinkey v. Commonwealth, 17 Pa. 127, 55 Am. Dec. 542); when 
 persons are indicted for riotous assault andi battery, they may be 
 convicted of assault and battery only (Shouse v. Commonwealth, 5 
 Barr, 83) ; when the charge is assault and battery, a conviction may 
 be had for assault. Instances of this kind might be multiplied in- 
 definitely if necessary. * * * 
 
 The judgment of tlie court of quarter sessions is affirmed.' 
 
 STATE V. GREEN. 
 
 (Supreme Court of North Carolina, 1896. 119 N. C. 899, 26 S. E. 112.) 
 
 FuRCHES, J.' This is an indictment for a secret assault with a dead- 
 ly weapon (a gun) with intent to kill, under chapter 32, Laws 1887. 
 Under instructions from the court the jury found the defendant "guilty 
 as accessory," and upon this verdict the court pronounced judgment, 
 and the defendant appealed. * * * 
 
 We have no means of knowing from this indictment and verdict 
 whether the defendant was convicted as accessory before or after the 
 fact. But neither of these offenses is the same offense as that charged 
 in the bill of indictment, nor is either one of them a less degree of 
 the same offense as that charged in the bill. There were other mat- 
 ters discussed in the argument before us that we do not consider and 
 pass upon, as they are not likely to arise again upon a new trial. 
 There is error, and a new trial is awarded the defendant. 
 
 New trial.' 
 
 7 At the early common law It appears that not only could the accused he 
 convicted for a misdemeanor on an indictment setting out the special circum- 
 stances of the case, charging the acts alleged to have been done feloniously, 
 if the acts amounted to a misdemeanor only. Holmes' Case, Cro. Car. 370 
 (1634); Joyner's Case, Kel. 29 (1604), but even on a general indictment for 
 feloBy, in which the misdemeanor was not charged, if a special verdict was 
 found. Leeser's Case, Cro. Jac. 497 (1618). But in Westbeer's Case, 2 Str. 
 1133 (1740), one was indicted for feloniously stealing a parchment, and the 
 jury found a special verdict by which it appeared that the parchment con- 
 cerned the realty. The court held that, the prisoner being not guilty of the 
 felony, he could not be convicted of the misdemeanor, and said, referring to 
 the cases cited above: "In the cases cited pro rege, the judges appear to be 
 transported with zeal too far." 
 
 8 Part of this case is omitted. 
 
 9 Accord: Where the verdict does not contain the name of the defendant. 
 Williams v. State, 6 Neb. .334 (1877). Or show on which of several counts 
 the defendant is found guilty. Day v. People, 76 111. 380 (1875). Or to which 
 of several defendants the verdict applied. People v. Sepulveda, 59 Cal. 342 
 (1881) ; Favor v. State, 54 Ga. 249 (1875). See, also, State v. Coon, 18 Minn. 
 518, Gil. 464 (1872) ; Wells v. State, 116 Ga. 87, 42 S. E. 390 (1902) ; State v. 
 Pierce, 136 Mo. 34, 37 S. W. 815 (1896).
 
 Ch. 12) TERDICT 153 
 
 KLEIN V. PEOPLE. 
 
 (Court of Appeals of New York, 1S64. 31 N. T. 220.) 
 
 Ingraham, J.^° The prisoner was- indicted with Barbara Klein for 
 grand larceny. When the case came on for trial, Klein pleaded guilty 
 of an attempt to commit grand larceny. Myer was then tried and 
 found guilty. The prisoner now moves in arrest of judgment, on the 
 ground that both defendants must be convicted of the same offense, 
 and not of different grades of offense. There can be no doubt that one 
 defendant might have been acquitted and the other convicted, and 
 such conviction have been good. And it has been held that where two 
 are charged with a joint offense, either may be found guilty. R. v. 
 Hempstead, R. & R. 344. But where persons are jointly indicted for 
 a joint offense, they cannot be convicted of separate offenses ; and if 
 the act is indivisible, such as conspiracy or riots, then one cannot be 
 convicted without the other. Stephens v. State, 14 Ohio, 388 ; State 
 V. McO'Blenis, 21 Mo. 272; Pennsylvania v. Huston, Add. (Pa.) 334. 
 But, except in indictments for offenses necessarily joint, joint defend- 
 ants may be convicted of different grades. Shorese v. Caw, 5 Barr. 
 83 ; R. V. Butterworth, R. & R., 520. And they may be convicted of 
 different degrees of criminality in the same offense, where the de- 
 fendants may act different parts in the same transaction. Thus, where 
 two defendants are charged with murder in the same indictment, the 
 jury may find one guilty of murder and another of manslaughter. 
 United States v. Harding, 1 Wall. Jr. 127, Fed. Cas. No. 15,301 ; Mask 
 V. State, 32 Miss. 406. So, in a charge of burglary, one may be con- 
 victed of burglary and another of grand larceny, where the first one 
 broke open the house and the other afterwards entered, and the two 
 committed the larceny. Russ. & Ry. C. C. 520. 
 
 In the present case, the prisoner Klein pleaded guilty of an at- 
 tempt to commit grand larceny. This she might have done without 
 necessarily being proven guilty of the further offense. After the plea 
 was put in, she was considered as if she had been tried separately and 
 acquitted, or convicted of a lesser grade. It did not prevent the trial 
 of the prisoner Myer, nor his conviction of the whole charge, any 
 more than if both had been indicted for murder, and one on a sep- 
 arate trial had been convicted of manslaughter; or, in an indictment 
 for burglary, if one had been convicted of larceny, the other might 
 afterwards be convicted of burglary. 
 
 I understand the rule to be, if both are convicted of offenses in the 
 same continuing transaction, they may be convicted of different de- 
 grees, if the prisoners take different parts in the commission of the 
 same offense. 
 
 The prisoner was properly convicted, and the judgment should be 
 affirmed. ^^ 
 
 10 Part of this case is omitted. 
 
 "Compare Rex v. Hempstead, Rnss. & Ry. 344 (1S18).
 
 154 VERDICT (Ch. 12 
 
 REX V. TURNER et al. 
 
 (Old Bailey, 1663. Sid. 171.) 
 
 Turner and others were indicted for that they feloniously and bur- 
 glariously broke the mansion house of Francis Tryan in a certain 
 ward in London, and there stole money and jewels to the value of 
 £5,000. And after not guilty pleaded, and much evidence, the jury 
 found Turner guilty of burglary (for which he was afterward hung 
 in Cheapside) and one of the sons guilty of felony (et the others they 
 acquitted) and the question was if this was a good verdict as to the 
 felony against the son. It seemed to the two Chief Justices and others 
 that it was not; for, although the jury might have found all guilty 
 of felony, they could not find one guilty of burglary and the others 
 of felony upon the same indictment and the same evidence. 
 
 SELVESTER v. UNITED STATES. 
 
 (Supreme Court of the United States, 1897. 170 U. S. 262, 18 Sup. Ct. 580, 42 
 
 L. Ed. 1020.) 
 
 Mr. Justice Gray, l\Ir. Justice Brown, and Mr. Justice Shiras con- 
 curred in part,^^ as follows: 
 
 We concur in the judgment of affirmance, and upon this short 
 ground : The indictment contained four counts. The defendant plead- 
 ed not guilty to the whole indictment, and thereby joined issue on each 
 and all of the counts, and the jur^y might find the defendant guilty 
 upon all or any of them. The jury did return a verdict of guilty upon 
 each of the first three counts, and disagreed as to the fourth count. 
 The jury thus answered the whole of the issue presented by the plea 
 to each of the first three counts, and failed to answer the issue pre- 
 sented by the plea to the fourth count. Their failure to return a 
 verdict on the fourth count did not affect the validity of the verdict 
 returned on the other three counts, or the liability of the defendant 
 to be sentenced on that verdict. The defendant was sentenced upon 
 those counts only upon which he had been convicted by the jury. 
 There is no error, therefore, in the judgment rendered upon the ver- 
 dict. 
 
 But in so much of the opinion of the court as suggests that the plain- 
 tiff in error may be hereafter tried, convicted, and sentenced anew upon 
 the fourth count, we are unable to concur. No attempt has been made 
 to try him anew, and the question whether he may be so tried is not 
 presented by this record. Upon principle, on one indictment, and 
 agains. one defendant, there can be but one judgment and sentence, 
 and that at one time, and for the offense or oft'enses of which he has 
 
 12 The statement of facts and the opinion of the court, delivered by Mr. 
 Justice White, are omitted.
 
 Ch. 12) VERDICT 155 
 
 been convicted ; and a sentence, upon the counts on which he has been 
 convicted by the jury definitely and conclusively disposes of the whole 
 indictment, operates as an acquittal upon, or a discontinuance of. any 
 count on which the jury have failed to agree, and makes any further 
 proceedings against him on that count impossible. No case has been 
 found in which, after a conviction and sentence, remaining unreversed, 
 on some of the counts in an indictment, a second sentence, upon a sub- 
 sequent trial and conviction on another count in the same indictment, 
 has been affirmed by a court of error. 
 
 In Ballew v. U. S., 160 U. S. 187, 203, 16 Sup. Ct. 263, 40 L. Ed. 
 388, and in Putnam v. U. S., 162 U. S. 687, 715, 16 Sun. Ct. 923,40 
 L. Ed. 1118, in each of which a judgment upon conviction on an mdict- 
 ment containing two counts was affirmed as to one count, and reversed 
 as to the other count, the order of reversal did not direct a new trial 
 on the latter count, but was guardedly framed in general terms "for 
 such proceedings with reference to that count as may be in conformity 
 to law"; and under such an order it would be open to the defend- 
 ant, if set at the bar to be tried again on that count, to plead the previ- 
 ous' verdict and sentence in bar of the prosecution." 
 
 STATE v. FRENCH. 
 (Supreme Court of Louisiana, ISOS. 50 La. Ann. 461, 23 South. GOG.) 
 
 Breaux, J.^* The state in this case appealed from an order sus- 
 taining a motion in arrest of judgment. The defendant was prose- 
 cuted upon an information containing two counts. In one count, he 
 was charged with having stabbed with intent to murder ; in the other 
 count, with having willfully and maliciously, with a dangerous weapon, 
 inflicted a wound less than mayhem. The verdict found was, "Guilty 
 of wounding less than mayhem." * ♦ * 
 
 The defendant avers that the verdict, "Guilty of wounding less than 
 mayhem," is not responsive to the offenses charged in the information. 
 In the first place, it is evident that the verdict was not a general ver- 
 dict, but one that the jury found without special reference to the of- 
 fense charged in either count of the information. It was a verdict of 
 their own selection. They had been instructed by the court regarding 
 the form of the verdict, as follows : "You may render one of five ver- 
 dicts. (1) You may find the prisoner at the bar, 'Guilty as charged 
 in the first count of the information;' (2) you may find him, 'Guilty 
 
 13 Where the counts are for the same offense, see Commonwealth v. Fitch- 
 burs? R. R.. 120 Mass. 372 (1S76). 
 
 "It was held at an early day, in this court, that one good count was suf- 
 ficient to uphold a general verdict and judgment upon all the counts, though 
 some of them might be bad." Nelson, J., in Clifton v. U. S., 4 How. 250, 11 
 L. Ed. 957 (1S46). 
 
 Contra: O'Connell v. Reg., 11 CI. & F. 155 (1S44). And see Avu-ett v. State, 
 76 Md. 510, 25 Atl. 676, 9S7 (1S93). 
 
 14 Part of this case is omitted.
 
 156 VERDICT (Ch. 12 
 
 of stabbing with a dangerous weapon with intent to kill,* as charged 
 in the first count; (3) you may find him, 'Guilty as charged in the 
 second count;' (4) you may find him, 'Not guilty;' or (5) you may 
 find him, 'Not guilty, on the ground of insanity.' If you find the de- 
 fendant was insane at the time of the commission of the act, you should 
 qualify your verdict of 'Not guilty' by the addition of the phrase 'on 
 the ground of insanity.' " The jury did not follow the instruction. 
 It was within their power to find a particular verdict in language of 
 their own, and if it covers an offense denounced by the statute, or an 
 oft'ense of a lower degree, included under the terms and conditions of 
 the offense charged, it would be a sufficient verdict. 
 
 Taking an example of the most ordinary sort, the charge being 
 murder, the jury may find the defendant guilty of manslaughter; or, 
 the charge being burglary, if larceny only be proven the accused may 
 be found guilty of larceny; so in all cases of oft'ense of less degree 
 of the same class. But the finding of the jury in such cases must be 
 of an offense complete in itself. The offense must be completely stated. 
 No valid judgment can be pronounced upon the partial verdict, which 
 fails to find the ingredients essential to constitute the crime. 
 
 To illustrate by another example of a familiar kind: If a jury were 
 to return in court that an accused was guilty of taking the goods of 
 another without any intimation as to the asportation and appropriation 
 of the goods, it is useless to state that the finding would be void. Not 
 so if they were to return that he is "guilty of larceny," for that word 
 embraces all the ingredients essential to constitute the crime of steal- 
 ing. Larceny, manslaughter, and other words denoting crimes have 
 a well-defined meaning. They are in themselves a definition. No one 
 can be misled, or there need not be the least confusion, when these 
 names are made use of. If the jury undertakes to define the crime, 
 it should be by a name in which there can arise no confusion or am- 
 biguity, or, if it is not identifiable by a well-known name, then the de- 
 scription should include the essentials to constitute the crime. In one 
 case in this state, the court went to the extreme of holding that only 
 a general verdict could, under the law, be found. State v. Jurche, 17 
 La. Ann. 71. That limit, properly, has not always been observed. 
 
 Special and particular verdicts may be found with the understand- 
 ing that the name of the crime when it has a name, or the facts when 
 it has not, necessary to constitute the crime are fully and explicitly 
 stated. The court cannot supply the facts necessary to constitute 
 the crime. 2 Hawk. P. C. 622 ; State v. Blue, 84 N. C. 809. "The 
 omission of any fact necessary to constitute the offense is fatal." 3 
 Whart. Cr. Law, § 3188. Where "intent" is one of the essential in- 
 gredients of the crime, it must be found in a special verdict, in order 
 to sustain a judgment. The crime denounced in the case before us for 
 decision, we have seen, includes "intent" as an essential ingredient. 
 
 No one, unless acting willfully and maliciously with intent, is guilty 
 of inflicting a wound less than mayhem. In our view, the verdict
 
 Ch. 12) VERDICT 157 
 
 was defective. It failed to find the criminal intent. It is defective 
 v^hether construed as a special or a partial verdict. In a very recent 
 case this court held that it was not permissible to go beyond the words 
 used by the jury in matters essential to the finding that a crime has 
 been committed by the accused. State v. Bellard, 50 La. Ann. 594, 
 23 South. 504, 69 Am. St. Rep. 461. In another, also a case recently 
 decided (State v. Hearsey, 50 La. Ann. 373, 23 South. 372), the^court 
 extended the rules of practice much further than there is any neces- 
 sity of extending in the case here. The rule applying is sustained by 
 a number of well-considered decisions, notably the cases of United 
 States V. Buzzo, 18 Wall. 125, 21 L. Ed. 812, and State v. Burdon. 
 38 La. Ann. 357. In the former the court said, in construing a spe- 
 cial verdict, that the intention is of the essence of the crime, and is 
 not found by the special verdict; no judgment can be entered on the 
 verdict. And, in the latter cited case, the court, in substance, with 
 reference to the finding of a jury, said: "What is not found is not 
 supposed to exist" — citing State v. Ritchie, 3 La. Ann. 512. 
 
 There are views not in accord with those we have here expressed. 
 The prosecuting officers have directed our attention to them, and par- 
 ticularly to the case of State v. Mason, 42 La. Ann. 715, 7 South. 668. 
 For the reasons before stated, we cannot adhere to the decision in 
 the Mason Case. We are constrained to adhere to decisions we before 
 cited. We think they are correct in law. 
 
 It is therefore ordered and decreed that the judgment appealed from 
 is affirmed. 
 
 REX v. LORD FITZWATER. 
 
 (Court of King's Bench, 1675. 2 Lev. 139.) 
 
 Information in the nature of a quo warranto for fishing in the river 
 Thames in a place extending in B in seven parishes as appears upon 
 the record. ^^ After verdict for the defendant it was moved in arrest 
 of judgment. * * * And afterward in Mich, term the verdict was 
 set aside upon affidavits that the jury cast lots for their verdict and 
 gave verdict according to the lot. * * * la 
 
 16 Part of this case is omitted. 
 
 16* Accord: White v. State, 37 Tex. Cr. R. 651, 40 S. W. 7S9 (1S97). In 
 Vaise v. De Laval, 1 Term R. 11 (17S5), Lord Mansfield refused to receive as 
 evidence affidavits of a juror that the jury had determined their verdict by 
 lot. But see White v. State, 37 Tex. Cr. R. 651, 40 S. W. 789 (1897).
 
 158 VERDICT (Ch. 12 
 
 GLTDEWELL v. STATE. 
 
 (Supreme Court of Tennessee, 1SS5. 15 Lea, 133.) 
 
 Wilson, Special Judge, delivered the opinion of the court. ^'^ * * * 
 
 The next contention is that the verdict should have been set aside, 
 and a new trial granted, because, as it is shown by the affidavits of 
 two of the jurors, the jury, in considering of their verdict, differed 
 among themselves as to the time the prisoner should be imprisoned, 
 and therefore it was agreed among them that each juryman should 
 set down the time he was for, and the product of the aggregate divided 
 by twelve was to be accepted and returned as the verdict of the jury, 
 which was done. If the facts were this way, they would clearly, un- 
 der our authorities, vitiate the verdict, and it should be set aside. 
 
 But upon a careful examination of the record we find the facts 
 to be otherwise, even as detailed by the jurors who give their affidavits. 
 Each juror, it seems, did set down or announce the time or number 
 of years he thought the prisoner ought to be confined, and the result 
 of this aggregate divided by twelve was the verdict agreed upon and 
 returned by the jury. But there was no agreement or understand- 
 ing, expressed or implied, tacit or otherwise, before this aggregation 
 and division were made, that the result should be their verdict; nor 
 was it in any way to bind the assent or influence the judgment of the 
 individual members of the jury. 
 
 And it is the fact of an agreement or understanding, before this 
 method of reaching a result is adopted, or while it is in process of 
 execution, to be bound by its result, and to accept it, that vitiates the 
 verdict. If this be the true test, much less should we be inclined to 
 set aside a verdict, in the absence of an agreement or understanding 
 beforehand to be bound by the result reached under this method, when 
 we can see that the method and its result were not even used as an ar- 
 gument with any member of the jury to secure his acquiescence in the 
 result. No authority we have been able to find, certainly none in this 
 state, holds that a verdict is vitiated simply because the jury put down 
 the time each was for confining the prisoner on trial before them, 
 added all of them together, divided the total by twelve, and adopted, 
 after consultation and agreement, the product as their verdict, when 
 there was no agreement or understanding beforehand to do so, and 
 when the method adopted and its result were not used as an argu- 
 ment to influence an unwilling or hesitant member to acquiesce in it. 
 This is the category in which we find this case. * * * 
 
 The judgment of the court below is therefore reversed, and the 
 cause will be remanded for a new trial. ^** 
 
 17 Part of this case is omitted. 
 
 isAccord: Thompson's Case, 8 Grat. (Va.) G37 (1S51) ; Cochlin v. Peoplei 
 93 111. 410 (1S70).
 
 Ch, 13) KEW TRIAL 159 
 
 CHAPTER XIII 
 NEW TRIAL 
 
 REX V. INHABITANTS OF OXFORD. 
 (Court of King's Bench, ISll. 13 East, 411.) 
 
 This indictment, for the nonrepair of a pubhc bridge over the river 
 Cherwell, called Enslow Bridge, v^ithin the county of Oxford, was 
 preferred at the assizes for the county of Oxford, and was tried be- 
 fore Lawrence, J., at the last assizes at Oxford, when the defend- 
 ants were found guilty; the question made at the trial being whether 
 certain persons were bound to the repair ratione tenurae. And now 
 
 Jervis, on behalf of the defendants, prayed the court for a certiorari 
 to remove the indictment and proceedings into this court, for the pur- 
 pose, as he stated, of moving for a new trial ; the verdict being against 
 the evidence and the direction of the learned judge who presided at 
 the trial. He admitted that in case of The King v. Elizabeth Nicoll, 
 14 East, 211, note, where the proceedings on an indictment at Hick's 
 Hall for a conspiracy were removed by certiorari between verdict and 
 judgment, this court, referring to The King v. Baker, said that they 
 could not give judgment, not being apprised of the circumstances of 
 the offense. But that difficulty will not arise in this case, where the 
 object is to bring the whole evidence in review before the court upon 
 the learned judge's report. It is of great consequence to those con- 
 cerned that a verdict given against evidence and the direction of the 
 judge should in some mode or other be corrected. 
 
 Lord Ellenborough, C. J. It is also of great consequence that 
 we should not, without precedent, and against authority intrude upon 
 all the inferior jurisdictions in the kingdom (for if we do it in one 
 case, there is no reason why we should not be called upon to do it in 
 all), by removing hither their proceedings after verdict and before 
 judgment, for the purpose of examining the evidence on which the 
 verdicts have been obtained. There would be no end of such investi- 
 gations. But I would not have the notion for a moment entertamed 
 that we have the power of entering into the merits of verdicts, and 
 granting new trials in proceedings before inferior jurisdictions. 
 
 Bayi,Ey, J., assenting, the certiorari was denied.
 
 IGO NEW TRIAL (Ch. 13 
 
 GRAY V. COIMMONWEALTH. 
 (Supreme Court of Pennsylvania, 1SS2. 101 Pa. 380, 47 Am. Rep. 733.) 
 
 Paxson, J.^ This cause was argued here as upon a motion for a 
 new trial, and two of the assignments of error are to the refusal of 
 the court to grant it. We ought not to be called upon at this late day 
 to say that it is not within the line of our recognized duties to correct 
 supposed errors in the lower courts in this manner. Nor are capital 
 cases an exception to this rule. We are not jurors, and are not called 
 upon to weigh the evidence even when a human life is at stake, fur- 
 ther than to say, when called upon to do so in an orderly manner, 
 whether there is sufficient evidence to submit to the jury upon a par- 
 ticular question of fact. If the jury make a mistake, the remedy is a 
 motion for a new trial in the court below. If a new trial is refused, 
 where upon the evidence it ought to have been granted, and the judg- 
 -ment is affirmed here upon the law of the case, the only remedy is an 
 appeal to the pardoning power. It is foreign to our duties to inter- 
 fere in such cases, nor do we see that any practical good would result 
 from our assuming such a jurisdiction. It is better for the admin- 
 istration of the criminal law that each department of the government 
 concerned therein should confine itself to those duties which the law 
 has assigned to it, and which long experience has shown to be wise 
 and proper. * * * 
 
 The judgment is affirmed. 
 
 COM!vIONWEALTH v. GREEN. 
 
 (Supreme Judicial Court of Massachusetts, Suffolk and Nantucket, 1822. 17 
 
 Mass. 515.) 
 
 Parker, C. J.' The prisoner, having been convicted, by the ver- 
 dict of a jury, of the crime of murder, at the last term of the court, 
 moved for a new trial, because, as alleged in his motion one Sylvester 
 Stoddard, who had been sworn as a witness on the part of govern- 
 ment, and who had testified to the jury, had been convicted of the 
 crime of larceny, in a court having jurisdiction of the offense, within 
 the state of New York, whereby, as is alleged, he was rendered in- 
 famous, and for that reason his testimony could not be received in a 
 court of justice in this commonwealth. A copy of the record of that 
 conviction has been produced in support of the motion ; and sufficient 
 
 1 Part of tills case Is omitted. 
 
 "The refusal of a motion for a new trial Is an error in law only when It Is 
 apparent that such refusal amounts to a clear abuse of discretion." Williams, 
 J., in Commonwoalth v. Roddy, 184 Pa. 2!)2. 39 Atl. 211 (ISOS). Cf. People 
 V. Francis, 52 Mich. 575. 18 N. W. 3G4 (1884); Omeara v. State, 17 Ohio SL 
 515 (1807); Reinhart v. State, 45 Ind. 147 (1873). 
 
 a Part of this case is omitted.
 
 Ch. 13) NE^V TRIAL 161 
 
 evidence has been given to satisfy the court, for the purpose of sus- 
 taining this motion, that the Sylvester Stoddard, who was sworn and 
 examined on the trial of the prisoner, was the subject of that convic- 
 tion. It appeared also, that judgment was rendered upon that con- 
 viction, and was executed upon the convict, witliin the public prison 
 of the state of New York. 
 
 It has been argued by the Attorney and Solicitor General, that by 
 law a new trial cannot be granted of a capital felony ; and it appears 
 by the EngHsh text-books, and by several decisions cited in support 
 of the position, that in cases of felony, a new trial is not usually al- 
 lowed by the courts of that country. But whatever reasons may ex- 
 ist in that country for this practice, we are unable to discern any suf- 
 ficient ground for adopting it here. 
 
 That a prisoner, who has been tried for a felony, and acquitted, 
 should not be subjected to a second trial for the same offense, seems 
 consistent with the humane principles of the common law, in relation 
 to those whose lives have been once put in jeopardy. But the same 
 humane principles would appear to require that, after a conviction, a 
 prisoner should be indulged with another opportunity to save his life, 
 if anything had occurred upon the trial which rendered doubtful the 
 justice or legality of his conviction. "Nemo bis debet vexari, pro una 
 et eadem causa," is a maxim of justice, as well as of humanity, and 
 was established for the protection of the subject against the oppres- 
 sions of government. But it does not seem a legitimate consequence 
 of this maxim that one who has been illegally convicted should be pre- 
 vented from having a second inquiry into his offense, that he may be 
 acquitted, if the law and the evidence will justify an acquittal. 
 
 It is true that, in England, the utmost caution is used on capital 
 trials in favor of life; and if an irregularity materially affecting the 
 trial occurs to the injury of the accused, the court usually represents 
 such matter to the crown, and a pardon is generally granted.^ But it 
 is the right of every subject of that country, and of every citizen of 
 this, to have a fair and legal trial before his peers, the jury; and it is 
 hardly consistent with that right that it should be left to the will or 
 discretion of the judge whether a representation of an actual irreg- 
 ularity shall be made to the pardoning power, or to the discretion 
 of the latter whether that power shall be exercised in favor of a per- 
 son unlawfully convicted. 
 
 Where the error appears of record, in either country, the court will 
 arrest the judgment after a verdict of guilty; and the party may be 
 again indicted, and tried, for the same offense. If the error does not 
 appear of record, but arises from inadvertency of the judge in reject- 
 ing or admitting evidence, or from misbehavior of the jury, or other 
 cause which would be good ground for a new trial in civil actions or 
 misdemeanors, justice and consistency of principle would seem to de- 
 mand that the person convicted should, upon his own motion, have an- 
 other trial, instead of being obliged to rely upon the disposition of 
 Mik.Cr.Pb. (Abridged Ed.) — 11
 
 162 NEW TRIAL ^ (Ch. 1 
 
 q 
 
 the court to recommend a pardon, or of the executive power to grant 
 it. It is not enough that the Hfe of the accused will generally be safe 
 in the hands of such highly responsible public agents. The right of 
 the subject to be tried by his peers, according to the forms, as well as 
 principles, of law, is the only certain security that at all times and un- 
 der all circumstances that protection which the Constitution extends 
 to all will be effectually enjoyed. 
 
 Nor is it for the public safety and interest that new trials should 
 be refused in such cases; for it must be obvious that in most cases 
 of irregularity, which would be a good cause for another trial, if in 
 the power of the court to grant it, a pardon, upon the representation 
 of the court, would be thought to follow of course, and thus, in many 
 cases, public justice might be prevented on account of defect in form, 
 or some irregularity, not affecting the merits of the case, which mis- 
 chief might be avoided by another trial. 
 
 For these reasons we think there is a power in this court to grant 
 a new trial on the motion of one convicted of capital offense, sufficient 
 cause being shown therefor, notwithstanding the English courts are 
 supposed not to exercise such authority; and if this opinion needs 
 support, the case of John Fries, who, after 'conviction of treason, was 
 tried a second time, and the case in South Carolina, cited at the bar 
 from Bay's Reports, are sufficient for this purpose. In the case of 
 United States v. Fries, 3 Dall. (Pa.) 515, Fed. Cas. No. 5,126, 1 L. 
 Ed. 701, Mr. Rawle, the district attorney, admitted the power of the 
 court to grant a new trial, and argued only against the propriety of 
 exercising the power in that case. Judge Iredell expressly admitted 
 the power, and Judge Peters, who was against a new trial, although 
 he yielded to the Circuit Judge, did not deny the authority of the 
 court to grant it. In a late case, also, in New York, People v. Good- 
 win, 18 Johns. 187, 9 Am. Dec. 203, which was a case of felony, it 
 was decided that the cause might be taken from the jury, and a new 
 trial ordered. * * * 
 
 Having decided that to grant new trials in capital cases is within 
 the power of the court, and that the exercise of this power, where 
 there has been no error on the trial, is discretionary, if every sugges- 
 tion should be listened to, without regard to the merits of the case, 
 or the just bearing of the fact suggested, it is certain that the course 
 of public justice would be much obstructed, and that the punishment 
 of crimes would often be evaded. It is a power to be used sparingly 
 for the protection of innocence, not to screen the guilty. 
 
 Now, in the case before us, the only advantage the prisoner would 
 have on another trial, which he had not before, would be to show 
 that Stoddard, one of the witnesses who testified against him, was 
 not deserving of credit, because he had been convicted of larceny in 
 New York. If this witness had gone to the jury wholly unimpeached, 
 and his testimony had been material and uncorroborated, the case
 
 Ch. 13) NEW TRIAL IG'i 
 
 would be a strong one for the exercise of the discretion of the court 
 in granting another trial. 
 
 But this witness was impeached at the trial, by the evidence of two 
 convictions of larceny within the commonwealth ; and it was known 
 to the jury that he had but just left the public prison, under a par- 
 don granted by the executive, for the sole purpose of rendering him a 
 competent witness. Surely evidence of another conviction of a sim- 
 ilar offense in another state, of which he had not been pardoned, 
 would have added nothing to the weight of evidence against his cred- 
 ibility. He was considered as a degraded person, both by the court 
 and jury; and in the charge to the latter by the court they were ex- 
 pressly told that, unless they found his testimony corroborated by un- 
 impeached witnesses, he ought not to be believed. The same observa- 
 tions applied to another witness, who appeared under similar circum- 
 stances. 
 
 In the opinion of the court, there was sufficient evidence to justify 
 the verdict without the testimony of either of those men. ♦ * * 
 
 Under these circumstances, to grant a new trial would be only to 
 prolong the suspense and increase the anxiety of the prisoner, with- 
 out any final advantage to him ; and we do not feel authorized to sur- 
 render the principles of justice to feelings of compassion or sympathy. 
 
 Motion overruled.' 
 
 8 Compare State v. David, 14 S. C. 428 (1881). 
 
 "Besides writs of error, motions for new trials are permitted In some cases 
 of misdemeanor, namely, cases of misdemeanors tried before the Queen's 
 Bench Division in the exercise of its original jurisdiction, or sent down by 
 that division to be tried at the Assizes on the nisi prius side. If a misde- 
 meanor is tried before commissioners of oyer and terminer at the Assizes 
 or at the Quarter Sessions, the Queen's Bench Division will not after verdict 
 remove the case by certiorari, with a view to granting a new trial. If the 
 parties wish to have the possibility of applying for a new trial, or to have a 
 special jury, their course is to apply for a certiorari before the case comes on 
 to be tried. If the court Is satisfied that questions of difficulty are likely to 
 arise they will issue a certiorari, and* either have the case tried before the 
 Queen's Bench Division at Westminster, or send it down to be tried as a 
 nisi prius record at the Assizes or in the city of London. When the case is 
 so tried a new trial may be moved for on the ground of misdirection, that 
 the verdict was against the evidence, or on other grounds on which new trials 
 are moved for in civil cases. According to Cliitty, the first Instance of such 
 a new trial 'was In the year 1655. One case only has occurred in which a 
 new trial was granted for felony, and that case was afterwards disapproved 
 of and Hot followed by the Judicial Committee of the Privy Council in R. v. 
 Bertrand, L. R. 1 P. C. 520. It is very remarkable that in the argument upon 
 R. V. Scaife, no notice was taken of the novelty of the proceeding." Stephen's 
 Hist. Crim. Law, p. 310. 
 
 "It was contended on behalf of the prosecutor that, as two of the defend- 
 ants had been acquitted, the record could not be sent down again to another 
 trial without putting their guilt or innocence again into a state of inquiry, 
 and that, inasmuch as defendants who have been acquitted in criminal cases 
 cannot be tried a second time, the necessary consequence was that in this case 
 we could not grant a new trial, even though we 'were clearly of opinion that 
 the other two defendants had been improperly convicted. If such were the 
 rule, it would bear extremely hard on particular persons accused; for then, 
 however unjust the verdict against some of the defendants might appear to be, 
 and though it should turn out beyond all contradiction that the verdict had 
 been obtained by the grossest perjury, the guilt of those defendants must
 
 t64 NEW TRIAL (Ch. 13 
 
 STATE V. EAVES. 
 
 (Supreme Court of Georgia, 1001. 113 Ga. 710. 39 S. E. 318.) 
 
 Simmons, C. j.* * * * From the indictment it may be ascer- 
 tained that the accused is charged with the violation of a certain penal 
 statute. The accused contended that this act was no longer in force in 
 Bartow county, having- been superseded by another act. He sought to 
 make the question in the lower court by requesting the judge to instruct 
 the jury that a conviction could not be had under the indictment. In 
 the motion for new trial complaint is made that the judge refused to so 
 charge. The motion also sets up that the verdict is contrary to law, 
 in that the indictment was based upon this inoperative statute. The 
 question was not raised by demurrer to the indictment, the allegations 
 of which were sufficiently established by the evidence. There was no 
 motion to quash the indictment. The question was never properly 
 raised. If the plaintiff in error was indicted under a law no longer 
 in force, and the indictment is fatally defective, he does not want a new 
 trial under that indictment. "In such a case the remedy is by general 
 demurrer before a trial on the merits, or by motion in arrest after ver- 
 dict." Roberts v. Keeler, 111 Ga. 186, 36 S. E. 617. 
 
 After going to trial upon the merits without objection to the indict- 
 ment, the accused could not properly ask the direction of a verdict 
 in his favor because of the insufficiency of the indictment. See Bray 
 V. Railroad Co., 113 Ga. 308, 38 S. E. 849; Strouse v. Kelly, 113 
 Ga. 575, 38 S. E. 957. Nor can this point be made in a ground of a 
 motion for a new trial complaining that the verdict is contrary to law 
 and the evidence. See Phillips v.^Railway Co., 112 Ga. 197, 37 S. E. 
 418; Roberts v. Keeler, supra. In the absence of objection to such an 
 indictment, a conviction is authorized if the evidence sustains the 
 allegations of the indictment as laid. Without regard, therefore, to 
 the merits of the point sought to be raised, we must affirm the over- 
 ruling of these grounds of the motion for new trial. 
 
 The verdict was authorized by the evidence. Judgment affirmed. 
 Cross-bill dismissed. All the Justices concurring.^ 
 
 necessarily stand on record, provided one defendant, perhaps included in the 
 Indictment for the very purpose, were acquitted. But I think that the rule 
 was correctly stated by the counsel for the defendants that In granting new 
 trials the court know no limitations (except in some excepted cases), but they 
 will either grant or refuse a new trial as it will tend to the advancement of 
 justice. In one class of offenses, indeed, those greater than misdemeanors, no 
 new trial can be granted at all. But in misdemeanors there is no authority 
 to shew that we cannot grant a new trial in order that the guilt or innocence 
 of those who have been convicted may be again examined iulo." Keuyon, <i 
 J., in Rex v. Mawbey, C Term 11. G3S (170G). 
 
 4 Part of this case is omitted. 
 
 • Accord: State v. Taylor, 37 La. Ann. 40 (1SS5).
 
 Ql. ]3) NEW TRIAL 165 
 
 BEPLEY V. STATE. 
 
 (Supreme Court of Indiana, 1853. 4 Ind. 264, 58 Am. Dec. 62S.) 
 
 Stuart, J.' This was a prosecution for a nuisance, under the 
 seventeenth section of the act of ^larch, 1853, regulating the retail of 
 spirituous liquors. Trial by jury. Verdict and judgment for the 
 state. * » * 
 
 There is a technical point, well settled in the books, but often over- 
 looked in practice, which would restrain us from disturbing the ver- 
 dict, if we were otherwise so disposed. The defendant moved first 
 in arrest of judgment. According to the authorities he could not 
 afterwards take the opinion of the court below on the sufficiency of the 
 evidence, by a motion for a new trial, unless he had brought himself 
 within some of the recognized exceptions, which he has not done. 
 In the order in which they were made the one motion was fatal to the 
 other. Rogers v. Maxwell, 4 Ind. 243 ; Mason v. Palmerton, 2 Ind. 
 117 * * * 
 
 Per Curiam. The judgment is affirmed, with costs.^ 
 
 • Part of this case Is omitted. 
 
 7 Accord: Rex v. White. 1 Burr. 333 (1757); Respuhlica ▼. Laeaze, 2 Dall. 
 (Pa.) 118, 1 L. Ed. 313 (1791) ; McComas v. State, 11 Mo. 110 (1847). 
 
 -A new trial must be applied for within two days after the conviction; 
 but. for good cause shown, the court, in cases of felony, may allow the ap- 
 plication to be made at any time before the adjournment of the term at which 
 the conviction was had. When the court adjourns before the expiration of 
 two days from the conviction, the motion shall be made before the adjourn- 
 ment." Code Cr. Proc. Tex. 1895, art 819; Pasch. Dig. art 3136. 
 
 See. also. Lawson v. State, 71 Ind. 296 (18S0) ; State v. Alphiu, 81 N. C. 566 
 (1879) ; Ross v. State, 65 Ga. 127 (1880).
 
 IG6 ARREST OF JUDGMENT (Ch. 14 
 
 CHAPTER XIV 
 ARREST OF JUDGMENT 
 
 STATE V. SUTCLIFFE. 
 
 (Court of Appeals of South Carolina, 1850. 4 Strob. 372.) 
 
 The prisoner was convicted at the May term, 1849, and an appeal 
 was taken in his behalf, which, after being docketed, was abandoned. 
 On motion being made for judgment, the prisoner insisted that this 
 court had no further jurisdiction in the matter, but that he must be 
 remanded to await the judgment of the circuit court at its next term; 
 and, secondly, he prayed the benefit of clergy.^ 
 
 "Wardi^aw, J. * * * The prayer for benefit of clergy is then 
 allowed, and the sentence for felony within the benefit will now be 
 pronounced. As that has been, by our statutes, made fine and im- 
 prisonment, the case of the prisoner is just as if he had been indicted 
 and convicted of a misdemeanor, except that, under the right of 
 challenge, he has enjoyed privileges which one accused of a mis- 
 demeanor is not entitled to, and that for a second offense, he may here- 
 after lose the benefit now allowed to him. 
 
 Richardson, Evans, and Frost, JJ., concurred. Withers, J., ab- 
 sent, from indisposition. 
 
 The prayer for benefit of clergy was allowed, and the sentence for 
 felony within the benefit was pronounced by the court. 
 
 STATE V. ARDEN. 
 
 (Court of General Sessions of South Carolina, 1795. 1 Bay, 4S7.) 
 
 The prisoner was indicted, together with one Campbell, for the 
 murder of a Spanish seaman by the name of Jewets, and, at her par- 
 ticular request, was tried separately. Campbell was convicted of man- 
 slaughter, but the prisoner of murder. On the adjournment day of the 
 sessions, when she was brought up for sentence, ^ 
 
 The Court (present Burke, Grimke, Waties, and Bay, Justices) 
 
 unanimous that the motion in arrest of judgment should be overruled, 
 
 , as the prisoner had been indicted as a principal in both counts of the 
 
 indictment, and the jury were to judge of the malicious intent, of the 
 
 » Part of this case is omitted. 
 
 « The arguments of counsel are omitted.
 
 Ch. 14) ARREST OF JUDGMENT 107 
 
 degrees of guilt in the parties, and to apply the evidence tc the differ- 
 ent counts as they thought proper. 
 
 The prisoner was then asked if she had anything to offer why 
 sentence of death should not be pronounced against her. Upon which 
 she pleaded pregnancy. Whereupon she was remanded to gaol, and 
 the sheriff was directed to summon a jury of matrons, de ventre in- 
 spiciendo. The court then adjourned from day to day, till the in- 
 quisition was found. It was then returned by the sheriff into court, 
 tinder the hands and seals of twelve matrons, in which they certified 
 that they had examined the prisoner, and found that she was not preg- 
 nant. The prisoner w^as then brought up, and received sentence of 
 death, and was afterwards executed pursuant to the sentence.' 
 
 STATE V. VANN. 
 (Supreme Court of North Carolina, ISSl. 84 N. C 722.) 
 
 Proceeding in a criminal action at Fall term, 18S0, of Hertford 
 superior court, before Schenck, J. 
 
 The prisoner being brought to the bar of the court for judgment 
 pursuant to the decision of this court, reported in 82 N. C. 631, was 
 asked if he had anything further to say than he had already said wdiy 
 sentence of death should not be pronounced upon him, and in an- 
 swer thereto (through his counsel) suggested that the prisoner since 
 his conviction had become insane, and in support thereof produced 
 affidavits. Thereupon he demanded a jury trial of the question of his 
 insanity, and asked for a continuance of the cause until the next term 
 to prepare for trial. The court held that he was entitled to a jury to 
 inquire into the fact, and, if it should be found favorable to the 
 prisoner, the judgment must be suspended until his sanity was restored, 
 and thereupon remanded him to prison and continued the case that the 
 issue might be tried by a jury. From this ruling the solicitor for the 
 state appealed. 
 
 Smith, C. J.* * * * We concur entirely with the ruling of his 
 honor that judgment must be suspended if the prisoner has become in- 
 sane since his trial, and is still insane, until he recovers his reason, 
 and "that an issue to be submitted to the jury is the proper mode of 
 ascertaining the truth of his allegation. The principle is thus laid 
 down bv Lord Hale : 'Tf a man in his sound memory commits a capital 
 offense,' and before his arraignment he becomes absolutely mad, he 
 ought not by law to be arraigned during such his phrensy, but be re- 
 mitted to prison until that incapacity be removed. * * * And if 
 
 3 In England preonanfy Is not a onnse for arrest of judsment, but can only 
 be pleaded in stay of execution. Chitty, Cr. Law, 75D. 
 * Part of this case is omitted.
 
 IGS ARKEST OF JUDGMENT (Ch. 14 
 
 such person after his plea and before his trial become of nonsane 
 memory, he shall not be tried; or if after his trial he become of non- 
 sane memory, he shall not receive judgment; or if after judgment he 
 become of nonsane memory, his execution shall be spared ; for were 
 he of sound memory, he might allege somewhat in stay of judgment 
 or execution." Hale, P. C. 34. The same language is used by Black- 
 stone, and he adds: "For as is observed by Sir Edward Coke, the 
 execution of an oft'ender is for example, ut poena ad paucos, metus ad 
 omnes perveniat ; but so it is not when a madman is executed, but 
 should be a miserable spectacle, both against law and of extreme in- 
 humanity and cruelty, and can be no example to others. But if there 
 be any doubt whether the party be compos or not, this shall be tried by 
 a jury." 4 Bl. Comm. 25. The same rule is laid down by the elemen- 
 tary writers and may be found in adjudged cases. Shel. on Lunacy, 
 467; 1 Bish. Cr. Law, § 4S7; Freeman v. People, 4 Denio (N. Y.) 
 9, 47 Am. Dec. 216. 
 
 But, for the reasons stated, the appeal was improvidently taken and 
 must be dismissed. 
 
 Per Curiam. Appeal dismissed.' 
 
 STATE V. CARVER. 
 
 (Supreme Judicial Court of Maine, 1862. 49 Me. 588, 77 Am. Dec. 275.) 
 
 Davis, J.* This was an indictment against Carver and Lunt, as 
 principals, and also against Wilson and Clapp, as accessories before the 
 fact. The first two, only, appear to have been arrested. Upon arraign- 
 ment they pleaded guilty, and afterwards their counsel filed a motion in 
 arrest of judgment. This was overruled by the court, and the case 
 comes before us on exceptions. 
 
 We see no objection to the indictment itself which can avail the 
 defendants, especially after the general plea of "guilty." The count 
 against them as principals is sufficient in all respects ; and, without in- 
 tending to intimate that Wilson and Clapp may not be held upon the 
 same indictment, we are clearly of the opinion that judgment may now 
 be entered upon the pleas of the other defendants. 
 
 Another ground of the motion in arrest is that the grand jury, by 
 whom the indictment was found, were "not legally drawn, and had no 
 power to act in the premises." This allegation is one of fact, as well 
 as of law. The facts do not necessarily appear of record, though in 
 
 • "We do not understand that any change In the condition of the prisoner 
 was shown to have taken place since the impaneling of the jury. It was 
 then. In effect, requiring the court to arrest or stay the judgment, for the 
 same reason which had been unsuccessfully urged before the jury in defense 
 of the criminal charge. We think the circuit court properly refused to eater* 
 tain the motion." Goldthwaite, J., in State v. Briuyea, 5 Ala. 243 (1843). 
 
 • Part of this case is omitted.
 
 Ch. 14) AtRRest of judgment IGO 
 
 this case the return upon one of the -venires does not show that one of 
 the grand jurors had no authority to act as such. State v. Clough, 49 
 ]\Ie. 573. But neither the venire, nor the return, constitutes any part 
 of the record of this particular case. The proceedings of the depart- 
 ments of the government, of counties and towns, and officers of 
 counties and towns, are all brought into requisition in order to con- 
 stitute the court. Some of these are matters of record in the court, 
 of which judicial notice will be taken, without other proof. But, if 
 pleaded, they are to be pleaded as matters of fact, however proved. 
 They are proceedings preliminary to the organization of the court, and 
 not proceedings of the court after it is organized. A motion in arrest 
 of judgment in any particular case does not necessarily bring them 
 before us. They cannot be brought before us except by being plead- 
 ed specially; and they cannot be pleaded in such a motion with any 
 more propriety than any other extrinsic facts. 
 
 A motion in arrest of judgment, in many of the states, is sub- 
 stantially a motion for a new trial, often for reasons entirely extrinsic 
 of the record. But, at common law, "judgment can never be arrested 
 but for that which appears upon the record itself." Peachy v. Harri- 
 son, 1 Ld. Raym. 232, 1 Salk. 77; Sutton v. Bishop, 4 Burr. 2283, 
 2287. The same rule prevails in this country. Such a motion can 
 only be made "on account of some intrinsic defect, apparent on the 
 face of the record, which would render the judgment in the case erro- 
 neous." Howe's Practice, 533 ; Bedell v. Stevens, 8 Post. (N. H.) 118 ; 
 Burnett v. Ballund, 2 Nott & ^IcC. (S. C.) 435; State v. Bangor, 3S 
 Me. 592, and cases there cited. 
 
 That the "record" referred to in these decisions is the record of the 
 particular case under consideration was expressly held in the case last 
 cited. It was alleged in the motion that another indictment for the 
 same offense was found at the same term of the court. But it was de- 
 cided that such a motion would not be entertained where proof was re- 
 quired to sustain it, though the proof was a matter of record in the 
 same court. 
 
 A motion in arrest presents only the suflBciency of the indictment. 
 State V. Nixon, 8 Vt. 70. It is equivalent to a demurrer, and can be 
 sustained only when all that is alleged in the indictment may be true, 
 and yet the person convicted not have committed any offense. State v. 
 Hobbs, 39 Me. 212, and cases cited. And, even for defects which 
 would be fatal to an indictment upon demurrer, if they are such as are 
 aided by a verdict, judgment will not be arrested after conviction. 
 Commonwealth v. Tuck, 20 Pick. (Mass.) 356. 
 
 Nor will judgment be arrested for anything that could have been 
 pleaded in abatement. 
 
 By pleading generally to the indictment the defendant admits its 
 genuineness, and waives all matters that should have been pleaded in 
 abatement. The decisions to this point, both in England and in this
 
 170 ARREST OF JUDGMENT (Ch. 14 
 
 country, are numerous. But it is urged that such cases are to be dis- 
 tinguished from the one at bar, because here the defendants deftiy that 
 there is any indictment, on the ground that there was no legal grand 
 
 The question here presented has often been raised m this country, 
 and it has uniformly been held that it is too late, after a verdict,^ to 
 object to the competency of the grand jurors by whom the indict- 
 ment was found, or to the mode of summoning or impanehng them. 
 All such objections must be pleaded in abatement. The question is 
 discussed at length in the case of People v. Robinson, 3 Parker, Cr. 
 R. (N. Y.) 235, where many of the American cases are collected. 
 The Attorney General, in the case before us, has cited other cases 
 where the same doctrine is held. And we are not aware of any 
 cases where it has been called in question. 
 
 The exceptions must be overruled.'' 
 
 Tenney, C. J., and RicE, INIay, Goodenow, and Kent, JJ., con- 
 curred. 
 
 LACEFIELD v. STATE. 
 
 (Supreme Court of Arkansas, 1879. 34 Ark. 275, 36 Am. Rep. 8.) 
 
 Harrison, j,8 * * * fhe record states that the arraignment 
 of the defendant was waived by him, but contains no entry of a plea 
 to the indictment, though the trial was had, as if the plea of not guilty 
 had been entered. 
 
 It was certainly very irregular to proceed to trial without a plea — 
 there was no issue and nothing to try. It was an error for which the 
 judgment should have been arrested. 1 Arch. Grim. Prac. and Plead. 
 178-31 ; 3 Whar. Grim. Law, § 3043 ; State v. Fort, 1 Gar. L. Rep. 
 510 ; Gannon v. State, 5 Tex. App. 34; Bush v. State, 5 Tex. App. 64 ; 
 State V. Matthews, 20 Mo. 55. 
 
 The judgment is reversed, and the cause remanded, with instructions 
 to require the defendant to plead to the indictment, and to be pro- 
 ceeded in according to law.^ 
 
 T Accord: Irregularity in drawing grand Jury. Peter v. State. 11 Tex. 
 7G2 (1834). Misbehavior of judge in communicating witli the jury. People v. 
 Kellv, 94 N. Y. 526 (1SS4). Illegal admission of evidence. State v. Snow, 74 
 Me. 3.54 (1S83). Misnon;er in the indictment. State v. Thompson. Cheves (S. 
 C.) 31 (1839). Lack of verification of information by oath. State v. Patton, 
 94 Mo. App. 32, 67 S. W. 970 (1902). Incompetence of juror. State v. Davis, 
 126 N. C. 1007. 35 S. E. 4«4 (1900). 
 
 "On a motion in arrest of judgment, • • • defects in the caption, or 
 even the omission of the caption, cannot be noticed.'' Aldis, J., in State v. 
 Thibeau, 30 Vt. 104 (1858). 
 
 8 Part of this case is omitted. 
 
 » Accord: Douglass v. State, 3 Wis. 820 (1854). Where indictment charges 
 no offense of which the trial court has jurisdiction (Truitt v. People, 88 111.
 
 Ch. 14) ARREST OF JUDGMENT 171 
 
 STATE V. LOHMDN". 
 
 (Court of Appeals of South Carolina, 1836. 8 nill, G7.) 
 
 Before Mr. Justice Bay, at Charleston, October term, 1835. 
 
 Per Curiam. No judgment can be given on the verdict, for it does 
 not find the facts charged in the indictment of giving and deliver- 
 ing liquor to a slave named Sam, the property of Jacob F. Mintzing, 
 but merely the "giving and delivering liquor to a slave." This is not 
 a conviction of the offense charged. 
 
 Motion in arrest of judgment granted.^** 
 
 518 [1878]), or fails to state the county in which the crime was committed 
 (Searcy v. State, 4 Tex. 450 [1849J). 
 
 Contra: People v. Osterhaut, 34 Hun (N. Y.) 260 (1884). Under statute. 
 State V. Cassady, 12 Kan. 550 (1874). 
 
 See, also. Ford v. State, 112 Ind. 373, 14 N. E. 241 (1887). 
 
 "It Is settled by the decisions in this state that for mere defects or rmcer- 
 tainties in criminal pleading a motion in arrest will not be sustained, although 
 such defects or uncertainties might be fatal on a motion to quash." Monks, 
 J., in Campton v. State. 140 Ind. 444, 39 N. B. 916 (1805). 
 
 Statutes exist very generally limiting the scope of the motion In arrest 
 of judgment. See Youns v. People, 193 111. 236, 61 N. B. 1104 (1901) ; Terrell 
 V. State. 41 Tex. 464 (1874); Commonwealth v. Brown, 1.50 Mass. .^,34, 23 N 
 E. 98 (1890) ; State v. Goldman, 65 N. J. Law, 394, 47 Atl. 641 (1900). 
 
 10 Accord:' Manigault v. State, 53 Ga. 113 (1874). See, also. Slaughter v. 
 State, 24 Tex. 410 (1859) ; State v. McCormick, 84 Me. 566. 24 Atl. 938 (1892). 
 Cf. State V. Snow, 74 Me. 354 (1883).
 
 172 JUDGMENT, SENTENCE AND EXECUTION (Ch. 15 
 
 CHAPTER XV 
 JUDGMENT, SENTENCE AND EXECUTION 
 
 If the defendant be in custody, or the crime be capital, he will 
 of course be remanded to prison in the interval between conviction 
 and sentence, if any be allowed to transpire. But if the cause of prose- 
 cution be a mere misdemeanor, and he be found guilty in his absence, 
 ♦ * * a capias is awarded and issued to bring him in to receive 
 his judgment, and if he absconds he may be prosecuted, even to out- 
 lawry. In case of a conviction for a misdemeanor, if the defendant 
 be present, he will of course be committed during the interval, unless 
 the prosecutor will consent to his liberation on his recognizance to ap- 
 pear and receive judgment. 
 
 1 Chit. Cr. Law, 664. 
 
 The sentence in capital cases is usually given immediately after con- 
 viction, but the court rnay adjourn to another day and then give judg- 
 ment. 
 
 Id. 699. 
 
 McCUE V. CO^IJsIONWEALTH. 
 
 (Supreme Court of Pennsylvania, 1875. 78 Pa. 1S5, 21 Am. Rep. 7.) 
 
 Error to the court of oyer and terminer of Lycoming county; of 
 January term, 1875, No. 51. 
 
 On the 25th of November, 1874, a true bill was found against 
 Barney McCue, for the murder of John Dieter. On the 27th of No- 
 vember the defendant, being arraigned, pleaded "Not guilty," and the 
 same day the trial commenced, before Gamble, P. J., and his associates, 
 judges of the court of oyer and terminer of Lycoming county. * * * 
 
 On the 1st of December the jury found the defendant "guilty of 
 murder in the first degree." 
 
 The record then has this entry: 
 
 "And now, December 6, 1874, prisoner, Barney IMcCue, brought in- 
 to open court, and the sentence of the court is: That you, Barney 
 McCue, prisoner at the bar, be taken from hence to the jail of the 
 county of Lycoming, from whence you came, and from thence to the 
 place of execution within the walls of said jail, and that you be there 
 hanged." • • * 
 
 Chief Justice Agnew delivered the opinion of the court.* ♦ * ♦ 
 
 But there is one error for which the sentence of the court must be 
 reversed. It does not appear from the record that the prisoner was 
 
 a Part of this case is oiiiitte<L
 
 Ch. 15) JUDGMENT, SENTENCE AND EXECUTION 173 
 
 asked, before sentence, why sentence of death should not be pro- 
 nounced upon him. This is a fatal error, and affects the merits of 
 the case. It is necessary to ask the prisoner this, that he may have an 
 opportunity, before the penahy of death be visited upon him, to plead 
 in bar of the sentence any matter sufficient to prevent its execution. 
 He may have found out some good reason why the trial was not legal, 
 or he may plead a pardon, or supervening insanity. The question, 
 and the answer that he hath nothing to say other than that which he 
 hath before said, or this in substance, must appear in the record before 
 the sentence can be pronounced. Prine v. Commonwealth, 18 Pa. 104 ; 
 Dougherty v. Commonwealth, 69 Pa. 291. In this case the question 
 may have been asked in fact ; but, as it does not appear in the record, 
 and is a matter of substance, we must treat it as not having been done. 
 In all high felonies, and especially in cases of murder, the presiding 
 judge should see that the record is made up properly, before the term 
 is over. 
 
 The sentence will be reversed, in order that the case may be sent 
 back, and an opportunity aft'orded to the prisoner to plead in bar of 
 it; but this error will not reverse the trial and conviction. Jewell v. 
 Commonwealth, 22 Pa. 94, 102. * * * » 
 
 REX V. CATTERALU 
 
 (Court of King's Bench, 1731. Fitzgibbons. 266.) 
 
 Upon the Return of a Habeas Corpus, the Commitment was by 
 Justices of the Peace (authorized for that Purpose by Act of Parlia- 
 ment) for refusing to account for a Toll by him received, and until he 
 do account, and pay what shall be due to the Proprietors of the said 
 Toll : Et Per Cur', The Commitment is illegal, for no certain Sum 
 is thereby appointed to be paid, and then the Defendant may remain in 
 Prison for Life: It was then moved to amend the Commitment: Sed 
 Per Cur', That cannot be after the Return filed; and the Defendant 
 was discharged.' 
 
 » Accord: In treason. Rex v. Speke, 3 Salk. Sns (1691). In capital cases, 
 generally. State v. Ikenor. 107 La. 480. 32 South. 74 (1902) ; Territory v. 
 Herfera, 11 N. M. 129, 66 Pac. 523 (1901); Ball v. U. S.. 140 U. S. 118, 11 
 Sup. Ct. 761, 35 L. Ed. 377 (1891). Contra: Gannon v. People, 127 111. 507. 
 21 N. E. 525, 11 Am. St. Rep. 147 (1889) ; Warner v. State, 56 N. .7. Law, 6S6, 
 29 Atl. 505, 44 Am. St. Rep. 415 (1S94). In some jurisdictions the allocutus 
 is necessary, even in felonies less than capital. Crocker v. State, 47 Ala. 53 
 (1872) ; People v. Jung. 70 Cal. 469, 11 Pac. 755 (1886). 
 
 s Compare Brownbridge v. People, 38 Mich. 751 (187S) ; People v. Degueu, 
 54 Barb. (N. X.) 105 (1S69) ; People v. Hughes, 29 Cal. 257 <18G5j.
 
 174 JUDGMENT, SENTENCE AND EXECUTION (Ch. 15 
 
 KIDD V. TERRITORY. 
 (Supreme Court of Oklahoma, 1900. 9 Okl. 450, 60 Tac. 114.) 
 
 Irwin, J.* In this case there are 19 assignments of error, but we 
 think it only necessary to refer to one. That is the error assigned that 
 the court, in pronouncing- sentence, found the defendant guilty of a dif- 
 ferent and higher degree of offense than that authorized by the verdict 
 of the jury. A reference to the verdict of the jury will be found in the 
 record. The verdict reads as follows: "We, the jury duly selected, 
 impaneled, and sworn in the above-entitled cause, find the defendant 
 guilty of assault and battery. F. L. Boling, Foreman." 
 
 A reference to the sentence of the court will show the following: 
 "October 22, 1898. 12th Judicial Day. Criminal Cause #711. Ter- 
 ritory of Oklahoma v. James W. Kidd. Judgment and Sentence. 
 Comes now defendant into open court for judgment and sentence on 
 the verdict of guilty heretofore rendered in said cause; and now, 
 defendant giving no good reason why the judgment and sentence of 
 the court should not at this time be pronounced upon him, on the ver- 
 dict herein, the court finds that the said defendant is. on the verdict 
 herein, guilty of assault with intent to kill. It is therefore considered, 
 ordered, and adjudged that the defendant, James W. Kidd, be, and 
 hereby is, fined in the sum of one hundred ($100.00) dollars, and the 
 
 costs of this action, taxed at $ , and that he be imprisoned in the 
 
 county jail for a period of thirty days. And now the court informs 
 defendant of his right of appeal, and bail pending said appeal is fixed 
 at $500, and ten days given to take appeal, 60 days to prepare and 
 serve case-made, ten days to suggest amendments thereto, to be signed 
 and settled on five days' notice. To the rendition of which said judg- 
 ment and sentence the defendant excepts at the time." 
 
 By this record it clearly appears that while the jury have found 
 the defendant guilty of simple assault and battery, which under our 
 statute is a misdemeanor, the court has found the defendant guilty 
 of a felony, to wit, an assault with intent to kill, which, we have no 
 doubt, is clearly reversible error. While the punishment inflicted is the 
 maximum punishment for assault and battery, it is also the minimum 
 punishment for the crime of assault with intent to kill, as provided by 
 our statute. Now, it seems to us that the law never intended that 
 the court should pass sentence and judgment upon a defendant, find- 
 ing him guilty of a greater or more serious offense than that of which 
 the jury by their verdict had convicted him. In this case, if allowed 
 to stand, the record would show that the jury had found the defend- 
 ant guilty of a misdemeanor, and the court, passing sentence upon that 
 verdict, had increased the degree of the offense to make it a felony. 
 
 This we think is error, for which the judgment is reversed, and the 
 
 4 Part of this case is omitted.
 
 Cll. 15) JUDGMENT, SENTENCE AND EXECUTION 175 
 
 cause remanded for sentence in accordance with the verdict of the 
 jury, and costs assessed to Kingfisher county. All of the justices con- 
 currincr.'* 
 
 BURRELL V. STATE. 
 
 (Supreme Court of Nebraska, 1SS9. 25 Neb. 581, 41 N. W. 399.) 
 
 Cobb, J.« * * * The jury found the defendant guilty on 16 of 
 the 17 counts of the indictment, one of which was for selling to a 
 minor, for which the law fixes the punishment at a fine of $25. The 
 sentence should have been upon the theory that the verdict is sustained 
 by the evidence ; that the defendant pay a fine of so much for the of- 
 fense for which he stands convicted upon the first count of the indict- 
 ment, and so on ; but, instead thereof, there is one solid fine assessed 
 against the defendant, for the sum of $1,525. 
 
 We have seen that there is no evidence to sustain the judgment as 
 to four of the counts. Had a separate fine been assessed as to each 
 count upon which there was a finding by the jury, only those upon 
 the counts where the finding is unsustained by evidence would be re- 
 versed ; but, as the fine and judgment are in solido, it must be said 
 that the judgment is unsustained by the evidence, and it must be re- 
 versed. 
 
 The judgment of the district court is reversed, and the cause re- 
 manded for further proceedings. The other judges concur/ 
 
 Ex parte BURDEN. 
 
 (Supreme Court of Mississippi, 1007. 92 Miss. 14, 45 South 1, 131 Am. St. 
 
 Rep. 511.) 
 
 Whitfield, C. J.* The verdict in this case was in the follow- 
 ing words: "We, the jury, find the defendant guilty of assault and 
 battery with intent to commit manslaughter." Under the case of 
 Traube v. State, 56' ]\Iiss. 153, this has been determined to be a mere 
 conviction of assault and battery; the words "with intent to commit 
 manslaughter" being mere surplusage. We have, therefore, a con- 
 viction for a misdemeanor. The learned circuit judge, misinterpreting 
 this verdict, held it to be a conviction for a felony, and sentenced the 
 
 Accord: Wbere the court imposed a lighter sentence than authorized by 
 the verdict. Cole v. People, 84 111. 216 (1876). 
 
 6 Part of the opinion only is reprinted. 
 
 7 Cf Stephens v. State, 53 N. J. Law, 245, 21 Atl. 1038 (1891) : Lefforge v. 
 State. 'l29 Ind. 551, 29 N. E. 34 (1891); People v. Carter, 48 Hun (N. Y.) 16o 
 (1888). 
 
 8 Part of this case is omitted.
 
 176 JUDGMENT, SENTENCE AND EXECUTION (Ch. 15 
 
 defendant to six years in the penitentiary. This sentence he had no 
 power or jurisdiction to impose. The distinction, abundantly estab- 
 lished by authority, is between a sentence which is merely excessive 
 or erroneous, regard being had to the particular offense, and a sen- 
 tence which is absolutely void. In the former case the writ of habeas 
 corpus cannot be availed of, but the party must appeal ; else the writ 
 of habeas corpus would be made to serve the office intended exclusive- 
 ly for an appeal. * * * 
 
 In the case of a judgment or sentence which is merely excessive, it 
 seems to be well settled that, "if the court was one of general juris- 
 diction, such judgment or sentence is not void ab initio because of the 
 excess, but that it is good so far as the power of the court extends, 
 and is invalid only as to the excess, and therefore that a person in cus- 
 tody under such a sentence cannot be discharged on habeas corpus 
 until he has suffered or performed so much of it as it was within the 
 power of the court to impose. This condition exists whenever the 
 punishment imposed is of the nature or kind prescribed by law and 
 merely exceeds the quantity authorized, as where the offender is sen- 
 tenced to a longer term of imprisonment than is prescribed for the 
 particular offense," etc. It will be especially noted that both Cyc. and 
 A. & E. Ency. of Law declare it to be the modern rule, according to 
 the latest and best-considered cases, that, although the court may have 
 jurisdiction over the subject-matter and over the person, it is with- 
 out jurisdiction to impose a sentence not appropriate to the kind and 
 nature of the oft'ense. * ♦ * 
 
 Wherever the sentence pronounced by the circuit judge is merely 
 excessive, or erroneous, or irregular, the writ of habeas corpus has 
 no place, but the defendant must appeal ; but wherever the sentence 
 imposed by the circuit judge for the particular offense of which the 
 defendant has been found guilty by the jury is void for want of power 
 to pronounce that particular sentence, such sentence is absolutely void, 
 and the defendant may resort to the writ of habeas corpus to release 
 him from confinement in pursuance of such illegal sentence. 
 
 Here we have the case of a man convicted of a misdemeanor and 
 under sentence as for a felony. Most manifestly the sentence is void 
 absolutely, as one which the court was without power under the law 
 to pronounce at all. It is not correct to say that, if the circuit judge 
 interpreted this verdict to be a verdict of guilty of a felony, he was 
 under the duty to sentence as for a felony. Whether the defendant 
 was convicted of a misdemeanor or a felony as a matter of fact is the 
 test as to the sentence to be imposed ; not what interpretation, right 
 or wrong, the circuit judge may have put on the verdict. The ques- 
 tion is, what was the defendant convicted of by this verdict? and the 
 answer is plain, "Of simple assault and battery," and that is a mere 
 misdemeanor. How, then, could the circuit judge impose the penalty 
 of six years' imprisonment in the penitentiary on a defendant con- 
 victed of mere assault and battery? It is manifest that his juilgment 
 was absolutely void.
 
 Ch. 15) JUDGMENT, SENTENCE AND EXECUTION 177 
 
 The argument that habeas corpus does not lie to correct a merely 
 excessive sentence is sound enough ; but the sentence must always be 
 one proper for a misdemeanor where the conviction is of a misde- 
 meanor, and one proper for felony where the conviction is of a felony, 
 else we would introduce interminable confusion into the law. If in 
 this case, for example, the circuit judge, treating this judgment, as 
 he should have treated it, as a conviction of simple assault and bat- 
 tery, had imposed an excessive sentence as for a misdemeanor, we 
 would have had the case of a merely excessive or irregular or erro- 
 neous sentence; but, when he undertook to impose upon the defend- 
 ant a felony sentence for a conviction for misdemeanor, it becomes 
 perfectly clear that he imposed ^a sentence which he was without pow- 
 er or jurisdiction to impose. The one would have been a mere irreg- 
 ular exercise of power; the other the exercise of a power he was 
 wholly without, since in no possible case could he have imposed a 
 felony sentence for a mere misdemeanor. 
 
 One other observation is due to be made, however, in this case, and 
 that is that, since this verdict is not a nullity, but was a good verdict 
 for assault and battery, the relator should not be discharged, but 
 should be remanded to the circuit court for proper sentence as for as- 
 sault and battery. See 21 Cyc. p. 306, par. 15, where it is said, citing 
 authorities: "The court may also have jurisdiction to commit a party 
 on one ground, but not on another, and may nevertheless commit him 
 on both grounds ; and in such case the prisoner ought not to be dis- 
 charged so long as he is properly imprisoned under the valid portion 
 of the commitment." 
 
 The decree is affirmed.* 
 
 FULTS V. STATE. 
 
 (Supreme Court of Tennessee, 1854. 2 Sneed, 232.) 
 
 ToTTEN, J.io At January term, 1854, of the circuit court of Grun- 
 dy, David Fults, with others, was convicted of an afifray. He was 
 sentenced to a fine of $10 and two days' imprisonment. The fine and 
 costs were secured, and there appears of record the following entry : 
 
 "On motion of defendant, David Fults, and for reasons appearing 
 to the satisfaction of the court by admission of the Attorney General 
 and the evidence in the case, he is permitted to enter into recognizance 
 to appear at the next term of this court and then undergo the impris- 
 onment adjudged against him, and abide by and perform the sentence 
 of the court." 
 
 The defendant gave bail, and at the next term made his appearance 
 before the court. It was thereon ordered that the defendant be im- 
 
 » Mayes, J., dissented. 
 
 10 Part of this case is omitted. 
 
 Mik.Cr.Pb.(Aeridged Ed.) — 12
 
 178 JUDGMENT, SENTENCE AND EXECUTION (Ch. 15 
 
 prisoned in accordance with the judgment at the former term, and 
 the defendant appealed in error to this court. 
 
 We see nothing irregular in this proceeding to which the defendant 
 can except. There are many cases, no doubt, where it is necessary, 
 and proper, to suspend the execution of the final judgment. For in- 
 stance, where the prisoner has become non compos between the judg- 
 ment and the award of execution ; or, in order to give room to apply 
 to the executive for a reprieve or pardon, or in special cases, where the 
 necessity and propriety of such course are rendered evident to the 
 mind of the court. Allen v. State, Mart. & Y. 297; 4 Bl. Com. 395. 
 
 In Allen's Case it was considered that a right to petition the ex- 
 ecutive for a pardon was a constitutional right, and as the prisoner 
 was convicted of manslaughter, and sentenced to be branded in the 
 hand, under the law then in force, time was allowed him until the 
 next term to petition for a pardon. He was also permitted to give 
 bail, the court remarking: "In common cases, where the party can 
 give bail reasonably, to secure his appearance, that he may be forth- 
 coming and subject to the sentence of the law, is all that the law re- 
 quires." 
 
 Now it is true that the order does not state for what cause the res- 
 pite was granted. It were better, no doubt, that the cause be stated, 
 that it may appear to be such as the law will recognize. We are bound, 
 however, to presume from the silence of the record in this respect, 
 that the respite was granted on sufficient cause; but, if it were not, it 
 is clear that the objection is one not to be made by the defendant who 
 takes the benefit of it. 
 
 The judgment will be affirmed. ^^ 
 
 11 But see In re Webb, 89 Wis. 354, 62 N. W. 177. 27 L. R. A. 356. 46 Am. 
 St. Rep. 846 (1895) ; In re Markuson, 5 N. D. ISO, 64 N. W. 939 (1895).
 
 Ch. 16) APPEAL, WRIT OF ERROR, AND CERT ORARI, 179 
 
 CHAPTER XVI 
 APPEAL, WRIT OF ERROR, AND CERTIORARI 
 
 REX V. INHABITANTS OF SETON. 
 
 (Ck)urt of King's Bench, 1797. 7 Term Report, 373.) 
 
 The defendants, the inhabitants of the township of Seton, were in- 
 dicted for not repairing a road; and after verdict and judgment at 
 the quarter sessions a certiorari was served to remove the record here. 
 
 Chambre on a former day in this term moved to quash the certiorari 
 quia improvide emanavit, observing that the party who now wished 
 to remove the record could only do so by writ of error. 
 
 Law now showed cause against that rule, and insisted that all the 
 proceedings below were stayed by the issuing of the certiorari, which 
 was before verdict in this case. In 2 Ld. Raym. 1305, Powell, J., said : 
 "A writ of certiorari removes any order or conviction, though they be 
 made or taken after the teste of the writ, so they be taken before the 
 return." And in that case the inquisition taken after the teste but be- 
 fore the return of the certiorari was quashed by this court for defects 
 appearing on the inquisition. 
 
 Lord Kenyon, C. J. In the case of summary proceedings, orders, 
 and convictions before magistrates, the proceedings may be removed 
 by certiorari after judgment, because such proceedings can only be 
 removed by certiorari; but where a judgment has been given on an 
 indictment, the record must be removed by writ of error. If any fraud 
 or misconduct had been imputed to the magistrates in proceeding not- 
 withstanding the issuing of the certiorari, that might have been a 
 ground for a criminal proceeding against them ; and I believe there 
 are instances in which a criminal information has been granted against 
 magistrates acting in sessions. In this case if the party, who sued out 
 the certiorari, wish to object to the proceedings, he must remove the 
 record by writ of error ; but this writ must be quashed. 
 
 Per Curiam. Rule absolute.^ 
 
 LONG'S CASE. 
 
 (Court of Queen's Bench, 1595. Cro. Eliz. 489.) 
 
 William Long was indicted at Norwich, within the county of the 
 
 city of Norwich, of the felonious stealing of a piece of linen cloth, 
 
 and was thereof arraigned, and pleaded not guilty, and was found 
 
 guilty, and prayed his clergy, and was burnt in the hand. Upon in- 
 
 1 Accord: Ilertel v. People, 74 111. App. 304 (1897). See, also, Thayer v. 
 Commonwealth, 12 IMete. (Mass.) 9 (184G).
 
 ISO APPEAL, WRIT OF ERKOR, AND CERTIORARI (Ch, 16 
 
 formation to the court that this indicting of him was by practice, and 
 he found guilty upon small evidence, he obtained a certiorari to re- 
 move the whole record into the crown office ; which being removed, 
 there were divers exceptions to the indictment to discharge the same. 
 For it was moved that it might well have been discharged by excep- 
 tion, and there needed not any writ of error to avoid it ; and he could 
 not have a writ of error, as the case is, because he was a clerk con- 
 victed only, and not attainted ; for when he prayed his clergy, which 
 was allowed him, there never was any judgment afterwards given. 
 And of that opinion was the whole court.^ 
 
 TAFF V. STATE. 
 (Supreme Court of Errors of Connecticut, 1872. 39 Conn. 82.) 
 
 Seymour, J. The plaintiff in error was duly convicted of violating 
 the first section of "the act to prevent and remove nuisances." The 
 conviction was upon the presentment of an informing officer, and 
 section 13 of the act provides that every person so convicted shall be 
 fined not less than $5 nor more than $50. It appears by the record 
 that the fine actually imposed by the court is $4, and because the fine 
 is thus less than the defendant was entitled to, he brings this writ of 
 error to reverse the judgment. 
 
 Notwithstanding many old cases to the contrary, the settled law in 
 Connecticut is that no party can set aside a judgment by writ of er- 
 ror, unless he is aggrieved by the judgment of which he complains. 
 This sound and just doctrine is so fully and ably vindicated by the late 
 Chief Justice Williams in the case of Ailing v. Shelton, 16 Conn. 436, 
 as to require no further discussion. The only question before us is 
 how far that doctrine applies to the present case. 
 
 We think it clear that the sentence to pay a fine of $1- is not war- 
 ranted by the statute. The thirteenth section is as peremptory in its 
 language in forbidding a fine of less than $5 as it is in forbidding one 
 of more than $50. If, then, we decide that the defendant shall pay 
 the $4 fine, we decide that he must pay a fine which the court below 
 had no authority to inflict, and which the language of the statute for- 
 bids to be inflicted. 
 
 Is the defendant aggrieved by this sentence? If there is nothing 
 more in the case, he certainly is aggrieved by an order to pav an un- 
 warrantable fine. Can we, then, use the defendant's liability to the 
 higher penalty as a ground for supporting the lower, but unwarranted, 
 penalty, which appears by the record to have been inflicted ? We think 
 we cannot. It is true that the defendant is not as much damaged by 
 the sentence actually given as he would have been had the legal sen- 
 
 2 See, also. State v. Dancherty. .39 W. Va. 470, 19 S. B. 872 (lSf>4) ; 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